Thomas v. Commonwealth
| Decision Date | 16 August 2016 |
| Docket Number | Record No. 0992-15-2 |
| Court | Virginia Court of Appeals |
| Parties | BARRY NELSON THOMAS, JR. v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Humphreys, O'Brien and Malveaux
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
David S. Clements (Gordon, Dodson, Gordon & Rowlett, on brief), for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Barry Nelson Thomas, Jr. ("appellant") was convicted by a jury of three misdemeanors: driving on a suspended license with two prior offenses in violation of Code § 46.2-301; falsely identifying himself to a law enforcement officer in violation of Code § 19.2-82.1; and failing to wear a safety belt in violation of Code § 46.2-1094. On appeal, he contends that the trial court violated his rights under Article 1, Sections 8 and 16 of the Constitution of Virginia by granting the Commonwealth's motion in limine and denying him the opportunity to explain to the jury his use of "El" at the end of his given name.
On the afternoon of April 2, 2014, while driving in Chesterfield County, appellant approached within 150 feet of a police traffic checkpoint before turning and driving away.Officer John Bowry pursued and stopped appellant. The officer asked him for his license and registration, but appellant did not provide Bowry with a registration card or any identification. Appellant stated that he did not have a license, so Bowry asked him for his name and social security number. Appellant replied that "his name was Barry Thomas-El and that his social [security number] was 00000."
Bowry attempted to obtain appellant's DMV information using the name he provided, but "nothing came back in reference to [that] information." In response to several further requests for identifying information, appellant continued to state "that his name was Barry Thomas-El, same exact social [security number] he provided the first time." Unable to identify appellant from the name or social security number he provided, Bowry arrested appellant. Based on appellant's fingerprints, Bowry identified him as Barry Nelson Thomas, Jr. and discovered a valid social security number assigned to that name. Appellant was charged with five misdemeanor offenses: driving while license suspended or revoked, in violation of Code § 46.2-301; giving a false identity to a law enforcement officer, in violation of Code § 19.2-82.1; use of identification documents or identifying information of another to avoid summons, arrest, prosecution, or to impede a criminal investigation, in violation of Code § 18.2-186.3(B1); driving a motor vehicle without wearing a safety belt, in violation of Code § 46.2-1094; and making an illegal U-turn, in violation of Code § 46.2-845. On August 27, 2014, appellant was tried in general district court and convicted of all charges. He appealed his convictions to the circuit court.
Prior to proceedings in the circuit court, appellant filed a notarized "Affidavit of Fact" stating he is "Barry Thomas-EL . . . a Moorish-American National" and that "[t]he Treaty of Peace and Friendship of 1787 signed by Sultan of Morocco and George Washington . . . establishes my nation and verifies my citizenship." He accompanied this affidavit with a copy ofsaid treaty printed from the internet. Appellant later filed an additional "Affidavit of Fact" averring he is "[i]n Propria Persona . . . Barry Thomas-El . . . a Moorish American-National with Ex-relation to BARRY N. THOMAS JR to the land mass called North America . . . by birthright affirmed by: The Zodiac Constitution." This affidavit also was accompanied by a copy of the 1787 treaty.
On May 1, 2015, the Commonwealth filed a motion in limine to exclude "evidence or argument concerning any matters contained in the documents filed with [the court] including but not limited to his claimed status as a 'Moorish American-National.'" The Commonwealth represented that appellant would attempt to present a "sovereign citizen" defense which the Commonwealth argued "has no basis in law and should not be presented to the jury."
At a May 18, 2015 hearing on the motion, appellant's counsel argued he would not present a sovereign citizen defense, but a defense based on Moorish-American religious beliefs. He claimed that use of an "El" suffix was an act of free exercise of religion under Article I, Section 16 of the Constitution of Virginia. Further, appellant argued that the evidence regarding his use of the suffix would demonstrate a lack of intent to deceive or evade the legal process, and that the invalid social security number he provided was "his exercise of a polite way to basically do nothing." At the hearing, appellant also proffered Moorish Science Temple "Nationality and Identification Card[s]" dated 2009 and 2014 and bearing the name "B. Thomas-El." Counsel for appellant maintained that "based upon his choice of religion and his freedom of religion, he gets . . . to explain it to his tryer [sic] of fact as to why he presented [that] name." Further, "he needs to explain it to the jury as to why he offers the El and that goes into his belief . . . based upon that religion."
After hearing arguments and examining the documents, the court found that the documents were not religious in nature. The court denied appellant's request to admit thedocuments. The court further noted that appellant's status as "a Moorish American national" was not a recognized legal defense and that any evidence related to this claim "would be confusing, irrelevant and not admissible to any defense."
In a May 20, 2015 jury trial, appellant was found guilty of driving on a suspended license with two prior offenses, in violation of Code § 46.2-301, falsely identifying himself to a law enforcement officer, in violation of Code § 19.2-82.1, and failing to wear a safety belt, in violation of Code § 46.2-1094.1 Appellant appeals his convictions to this Court.
On appeal, appellant argues that the trial court erred in granting the Commonwealth's motion in limine to exclude evidence concerning his use of the suffix "El," which violated his right to call for evidence in his favor during a criminal prosecution under Article I, Section 8 of the Constitution of Virginia, and his right to free exercise of religion under Article I, Section 16 of the Constitution of Virginia. For the following reasons, we find no merit to appellant's argument.
On appeal, appellant argues that his right to call for evidence in his favor under Article I, Section 8 of the Constitution of Virginia was violated when he was not allowed to explain to the jury his use of "El" in his name. Article I, Section 8 provides, in pertinent part, that in criminal prosecutions, the accused has the right "to call for evidence in his favor." Here, appellant failed to argue at trial, and thus preserve for review, that his right to call for evidence under Article I, Section 8 of the Constitution of Virginia was violated. This Court "will not consider an argument on appeal which was not presented to the trial court." Correll v. Commonwealth, 42Va. App. 311, 324, 591 S.E.2d 712, 719 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)). See also Rule 5A:18. "Under settled principles, 'the same argument must have been raised, with specificity, at trial before it can be considered on appeal.'" Johnson v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Correll, 42 Va. App. at 324, 591 S.E.2d at 719). Further, "[m]aking one specific argument on an issue does not preserve a separate legal point on the same issue for review." Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
At no point during the motion hearing or at trial did appellant raise "with specificity" an argument based upon Article I, Section 8. Appellant's two arguments at the hearing both referenced the right to free exercise of religion under Article I, Section 16 of the Constitution of Virginia.2 Throughout the proceeding, appellant consistently based his argument on his right to use the name Barry Thomas-El as a matter of free exercise, rather than articulating a claim under Article I, Section 8. Therefore, we hold that appellant failed to preserve for review his claim that his right to call for evidence in his favor was violated under Article I, Section 8 of the Constitution of Virginia.
Appellant also argues that the trial court's exclusion of his evidence about "being a Moorish American national" violated his free exercise rights under Article I, Section 16 of theConstitution of Virginia. This claim, with respect to appellant's proffered testimony, is procedurally barred on appeal. His argument concerning the proffered documents is one of evidentiary admission rather than of a violation of a constitutional right, and we find that the trial court's exclusion of this evidence by granting the Commonwealth's motion in limine was not an abuse of discretion.
At the motion in limine hearing, appellant's counsel argued that adding the suffix "El" to appellant's name was an act of free exercise noting his "rebirth" within the Moorish American community. Counsel for appellant argued, However, appellant's counsel failed to properly proffer what appellant's testimony would have been at trial.
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