Squire v. Pace, Civ. A. No. 74-27.

• Decision Date: 09 August 1974
• Docket Number: Civ. A. No. 74-27.
• Citation: 380 F. Supp. 269
• Parties: Stephen Earl SQUIRE, Petitioner, v. Raymond C. PACE, City Sheriff, Circuit Courthouse, For the City of Charlottesville, Charlottesville, Virginia, Respondent.
• Court: U.S. District Court — Western District of Virginia

380 F. Supp. 269

Stephen Earl SQUIRE, Petitioner, v.Raymond C. PACE, CitySheriff, Circuit Courthouse, For the City of Charlottesville, Charlottesville, Virginia, Respondent.

Civ. A. No. 74-27.

United States District Court, W. D. Virginia, Charlottesville Division.

August 9, 1974.

John C. Lowe, Lowe & Gordon, Charlottesville, Va., for petitioner.

Richard H. Barrick, Commonwealth's Atty., Charlottesville, Va., for respondent.

OPINION and ORDER

TURK, Chief Judge.

In this petition for a writ of habeas corpus, Steven Earl Squire challenges his conviction for disorderly conduct in the Corporation Court for the City of Charlottesville, Virginia on October 13, 1972, for which he was sentenced to serve a term of four months in jail and pay a fine of $600.Petitioner appealed his conviction to the Virginia Supreme Court alleging among other grounds for reversal the same contentions that he now asserts here.The Virginia Supreme Court granted an appeal on a single ground not here relevant, dismissed petitioner's other grounds for relief and upheld his conviction.Petitioner then sought a Writ of Certiorari in the Supreme Court of the United States which was denied on May 28, 1974.Since petitioner has exhausted his state court remedies, the merits of his constitutional challenges to his conviction may now be entertained by this court, 28 U.S.C. § 2254.

Briefly summarized primarily from the testimony of the prosecution's witnesses, the following events leading to petitioner's arrest occurred.On April 29, 1972, petitioner went to Scott Stadium at the University of Virginia to express his opposition to the involvement of the United States in the Vietnam war.The setting for his protest was the annual review of ROTC units at the University of Virginia.The ceremony consisted of a band playing for the audience; a review of the ROTC units by the President of the University, a visiting dignitary and the commanding officers of the various ROTC units; and an awards ceremony.The first three or four rows of seats in the middle section of the stadium had been set aside for the reviewing party.

Before the reviewing party had taken their seats, petitioner and two others arrived at the stadium and took seats on the wall in front of the reserved seats.Each held a sign expressing opposition to the war with petitioner's sign stating something to the effect that "In Vietnam we killed millions to avoid a bloodbath."At that point, there was no activity on the field other than the band being in position at one end of the field, although the reviewing party was expected to arrive at their seats and the planned activities were scheduled to begin momentarily.

David Alan Williams, Vice-President for Student Affairs at the University, testified that he had the responsibility for maintaining the orderly functioning of university activities.Upon seeing petitioner and the two other persons sitting on the wall in front of the reserved area, he approached petitioner and told him that it was a reserved area, that he was blocking the view of the spectators, and that he would have to get out.Petitioner and the others made no effort to move, whereupon Mr. Williams grabbed the signs from petitioner and one of the other men.Petitioner then came down from the wall brushing Mr. Williams slightly in an effort to retrieve his sign.Mr. Williams then grabbed him by the collar or neck and swung him down on the seat.Petitioner began to shout about wanting his sign back and how he felt his right to free speech was being violated; a few people from the stands gathered around and there was shouting from the spectators.Petitioner stood up and was again grabbed by Mr. Williams.Petitioner continued shouting about his rights.

Meanwhile Robert Canevari, the Dean of Students, arrived on the scene and signaled for two police officers at the top of the stands to come down.According to Officer Albert, the arresting officer, he had been at the top of the stands where he could see the confrontation between petitioner and Mr. Williams including seeing Mr. Williams grab the sign and petitioner come down from the wall; but he stated that he could not tell exactly what was going on.He came down from the top of the stands on Mr. Canevari's signal who then instructed him to remove petitioner.He accordingly told petitioner"Let's go", to which petitioner did not respond but continued shouting about his sign.Officer Albert repeated the command, and petitioner asked if he was under arrest; the officer answered in the affirmative, and petitioner asked what the charges were; the officer then grabbed petitioner by the wrist and led him without resistance out of the stands.When in the police car he was informed that he was under arrest for disorderly conduct.At the time petitioner was approached by Officer Albert, he was seated and engaged in a loud argument with Mr. Williams about getting his sign back and did not appear to realize that the police had arrived.

Virginia, like many other states, has a two-tier system for trying minor crimes such as disorderly conduct.Pursuant to this system misdemeanors are tried in the courts-not-of-record (now called General District Courts) in the first instance with a right to appeal and a trial de novo in a court of record (now Circuit Courts).Petitioner was tried on May 11, 1972 in the Municipal Court for the City of Charlottesville before substitute Judge E. C. Wingfield, who found him guilty of disorderly conduct and sentenced him to a suspended 30 day jail sentence and a $25 fine.Petitioner appealed to the Corporation Court for the City of Charlottesville where he was afforded a de novo trial before a five-person jury which, as noted, found him guilty and sentenced him to four months in jail and a $600 fine.

Petitioner here challenges his aforementioned conviction on the following three grounds which will be discussed in the order stated:

(1) That his rights under the Sixth and Fourteenth Amendments were violated in that a juror was allowed to sit on the case who on voir dire admitted that he considered a University administrator or a police officer inherently more credible than an anti-war demonstrator;

(2) That in his trial in the Corporation Court for the City of Charlottesville, evidence of alleged misconduct for which he had been acquitted in the Municipal Court was used against him in violation of his right guaranteed by the Fifth and Fourteenth Amendments not to twice be put in jeopardy for the same offense;

(3) That the statute pursuant to which he was convicted, Va.Code Ann. § 18.1-253.2(1973 Cum. Supp.) is facially unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments.

I

On voir dire examination petitioner's counsel asked the jury panel if they believed that a police officer or a University official were inherently more credible than an anti-war demonstrator.Two members of the panel, Henshaw and Bernet, responded affirmatively to these questions, and petitioner's counsel moved to disqualify them for cause.The judge did not immediately disqualify them but instead allowed further questioning.On the basis of additional questioning Henshaw was disqualified but Bernet was not.

On subsequent questioning Mr. Bernet explained his earlier response as follows:

"I did answer the first question affirmatively and that I had not formed an opinion and I though that I could judge it in an unbiased manner.The reason I raised my hand I think was not so much against a war demonstrator as in favor of a police officer.A police officer has been associated with the importance of telling the truth a great deal more than an anti-war demonstrator.A police officer I think would have to be older, more settled, is my only reason for answering . . ."

Mr. Bernet then answered in response to a question from petitioner's counsel that he believed he could give a fair and impartial trial to both sides even though he knew that an anti-war demonstrator was the defendant.He further stated with respect to giving defendant a fair trial:

"I said I could.I do believe I can.I think maybe one thing is I was stating as a whole class, not in specific examples.I would certainly listen to what the police officer had to say, and I would certainly listen to what the anti-war demonstrator had to say and would try to do this impartially."

From a consideration of the entire voir dire examination of Mr. Bernet, this court does not believe that the fundamental fairness mandated by the Due Process Clause of the Fourteenth Amendment was violated by the trial judge's failure to strike Mr. Bernet for cause.In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46(1973)the Supreme Court held that the failure of a state trial judge to inquire into prospective juror's racial bias violated the Fourteenth Amendment; but the court went on to hold that the failure to question jurors concerning prejudice against persons with beards was not a constitutional violation.

"Given the traditionally broad discretion accorded to the trial judge in conducting voir dire,Aldridge v. United States, supra283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, and our inability to constitutionally distinguish possible prejudice against beards from a host of possible similar prejudices, we do not believe petitioner's constitutional rights were violated when the trial judge refused to put his question. . . .The trial judge's refusal to inquire as to a particular bias against beards, after his inquiries as to bias in general does not reach the level of a constitutional violation.409 U.S. at 528, 93 S.Ct. at 851.

Although the issue in Ham is somewhat different than that in this case, the court is of the opinion that the Supreme Court's deference to the trial judge's discretion in Ham supports the conclusion that no constitutional violation occurred with respect to the voir dire examination in this case.Petitioner's counsel was...