Howard v. City of Roanoke

• Decision Date: 27 December 2007
• Docket Number: Record No. 1584-06-3.
• Citation: 51 Va. App. 36,654 S.E.2d 322
• Parties: E. Duane HOWARD v. CITY OF ROANOKE.
• Court: Virginia Court of Appeals

654 S.E.2d 322

51 Va. App. 36

E. Duane HOWARD v. CITY OF ROANOKE.

Record No. 1584-06-3.

Court of Appeals of Virginia, Salem.

December 27, 2007.

G. David Nixon (Huffman & Nixon, P.C., on brief), Roanoke, for appellant.

Andrew E. Stephens, Assistant Commonwealth's Attorney (Office of the Commonwealth's Attorney for the City of Roanoke, on brief), for appellee.

Present: ELDER, McCLANAHAN, JJ., and FITZPATRICK, Senior Judge.

ELDER, Judge.

E. Duane Howard (appellant) appeals from his bench trial conviction for disorderly conduct in violation of the Roanoke City Code, based on his behavior during a city council meeting. On appeal he contends the evidence was insufficient to support his conviction because his "verbal utterances" were expressly excluded from the scope of the ordinance and his disorderly conduct, if any, occurred during a recess. We hold the evidence of appellant's behavior excluding the content of his utterances was sufficient to support his conviction under the ordinance, and we affirm.

I. BACKGROUND

On November 7, 2005, appellant attended a meeting of the Roanoke City Council. Prior to the 2:00 p.m. meeting, appellant and a companion engaged Police Officer John T. Rogers in conversation, asking Rogers why he was present. Rogers explained to both men "[he] was there to make sure that everything ran fast and smoothly and everything was secure." They spoke about whether Officer Rogers had ever asked people to leave a meeting, and when he indicated he had, appellant inquired, "[W]hat if they don't want to leave[?]" Officer Rogers responded, "there's a thing called pain compliance."

When the meeting began at 2:00 p.m., Mayor Harris made an "opening statement telling everybody the rules he was going to apply for that meeting." Those rules included time limits at the podium for each of the 54 scheduled speakers; a requirement that comments relate to the issue at hand, which concerned whether to renovate the city's Victory Stadium; and a warning that "any outbursts, . . . any verbal attacks or anything against city council or any other people" would not be tolerated. The mayor also advised the attendees "that the officers were [there] to make sure that was enforced." He said people who did not comply with the rules would "first . . . be asked to leave, and if they didn't, he said the officers [would] escort them out."

After appellant took his turn at the podium, "another man was talking to city council saying his views," including his belief that some members of council were "rotten to the core," and the mayor was "stopping him." At that time, appellant "was yelling out loud. Everybody was a little bit rumbling, but [appellant] was the loudest all the way from the back row . . . yelling toward the city council," "[L]et him speak, let him speak." Appellant had his hands "[c]upped around his mouth" "when he was yelling." The mayor "warned everybody there . . . that this would not be tolerated and . . . he again laid down the rules of exactly what he expected." The mayor reiterated, "We are not having people heckle from the audience. . . . If people heckle from the audience, I will call a recess, and we will have the police officers come forward. We are going to conduct ourselves in a civil manner." After several additional speakers had taken their turns at the podium, the mayor calmly declared a five-minute recess between speakers, after which statements resumed.

At about 4:10 p.m., after more people had taken their turns at the podium, Officer Rogers stepped outside the chamber to brief the officer replacing him "on what was going on and what the mayor's rules were." Rogers told his replacement that appellant and others were heckling and that appellant was the "loudest." At that same time, inside the chamber, the mayor repeated his request for "civil discourse," and as he was attempting to talk, appellant spoke in a loud voice while the mayor was attempting to speak. Appellant was again heckling by "[c]upping" his hands "around his mouth," and his "loud voice" was audible on the videotape of the meeting. When appellant refused to be silent, the mayor said, in an agitated voice, "Mr. Howard— Mr. Howard—Where is the police officer? Where is the officer?" Officer Rogers immediately re-entered the chamber and approached appellant, at which time, the mayor said, "Thank you, sir. Thank you, sir. Council stands in recess, Mr. — officer," and rapped the gavel. Officer Rogers interpreted the mayor's "thank you" as confirmation that appellant Howard "was the same gentlemen [the mayor had been] talking to" for speaking out of turn.

Officer Rogers then spoke to appellant during the recess in order to remove him from the chamber, saying to appellant, "[Y]ou've already had your time to speak. . . . [W]hy don't you be a gentleman, stand up with me, and we'll walk out of here like two . . . adults?" Appellant responded, "I have a right to speak." Officer Rogers again said, "[S]ir, why don't you stand up and walk with me." Appellant said, "[v]ery loud[ly]," "[I]f you want me out of here, you have to drag me out." When Officer Rogers, aided by Officer Johnson, tried again to get appellant to stand and leave the chamber, appellant repeated, "If you want me out, you have to drag me out." Appellant then "wasn't responding" and refused to look at Officer Rogers. Rogers "put . . . what we call a wristlock" on appellant and, using that technique, Rogers "applied pressure for [appellant] to stand up," which appellant did. "[E]ach time [appellant] went to stop," Officer Rogers again applied pressure. Using this method, Rogers guided appellant outside the doorway to the chamber and then released him.

When the mayor reconvened the council meeting after appellant had been removed from the chamber, the mayor said, "I'll repeat again. I expect our discourse in this chamber to be civil. We are here to discuss an issue. I will obviously not tolerate heckling from the chamber. We now pick up with speaker 28. . . ."

Officer Rogers, after removing appellant from the chamber, obtained a summons charging him with disorderly conduct under Roanoke City Code § 21-9A2. At appellant's trial, the Commonwealth presented evidence in keeping with the above. Appellant testified in his own behalf, conceding the mayor had a right to set rules for the meeting and that he, along with others, broke the rules by speaking out of turn from the audience rather than from the podium. He also conceded that he "verbally resist[ed]" the officers' efforts to remove him from the chamber, but he denied "physically resist[ing]" in any way.

Appellant's counsel argued that the recess was called "because of what [appellant] was saying, not because he refused to leave. . . . It wasn't necessitated by his conduct. It was necessitated by his statements made," and the statements, he averred, were insufficient to constitute disorderly conduct under the ordinance. He also argued that his refusing to leave occurred during the recess and, thus, did not constitute "a disruption of a public meeting because there wasn't a public meeting in place at that time."

In finding the evidence sufficient to convict appellant for the charged offense, the trial court observed,

I'm satisfied that the evidence shows a technical violation of the ordinance, . . . that the recess was called to facilitate the removal of [appellant]. And the defense has conceded . . . that the mayor and council have the right to have him removed. . . . [T]he evidence shows that there was a willful disruption of the meeting. . . . And the conduct associated with his removal, his resistance and then forcible removal, as the officer said by the pain application, certainly lengthened . . . the recess and prevented the orderly conduct of the meeting.

* * * * * * I'm satisfied the Commonwealth has made [its case]. Treacherous though the shoals of the First Amendment might be . . . in winding our way through this.

Following appellant's conviction, he noted this appeal.

II. ANALYSIS

In reviewing the sufficiency of the evidence on appeal, we examine the record in the light most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters to be determined by the fact finder. Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989).

The ordinance appellant was convicted for violating provides as follows:

(a) A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

* * * * * *

(2) Willfully . . . disrupts any meeting of the city council . . . if such disruption prevents or interferes with the orderly conduct of such meeting . . .; provided, however, such conduct shall not be deemed to include the utterance or display of any words. . . .

Roanoke City Code § 21-9. This ordinance parallels the language in Code § 18.2-415, which also authorizes "[t]he governing bodies of counties, cities and towns . . . to adopt ordinances prohibiting and punishing the acts and conduct prohibited by this section." Although Code § 18.2-415 and the ordinance are arranged differently, both contain the provision that the conduct prohibited "shall not be deemed to include the utterance or display of any words." Thus, prior appellate decisions interpreting Code § 18.2-415 are relevant in our application of the Roanoke disorderly conduct ordinance to the facts in appellant's case.

The "question as to whether a particular act is disorderly conduct depends largely on the facts in the particular case, and in the determination of such question not only the nature of the particular act should be considered but also the time and place of its occurrence as well as all the surrounding...