Wise v. Com.

• Decision Date: 27 February 2007
• Docket Number: Record No. 2385-05-4.
• Citation: 641 S.E.2d 134,49 Va. App. 344
• Parties: Luther Lee WISE v. Commonwealth of VIRGINIA.
• Court: Virginia Court of Appeals

641 S.E.2d 134

49 Va. App. 344

Luther Lee WISE v. Commonwealth of VIRGINIA.

Record No. 2385-05-4.

Court of Appeals of Virginia, Alexandria.

February 27, 2007.

Bonnie H. Hoffman, Deputy Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: BENTON and HALEY, JJ., and ANNUNZIATA, Senior Judge.

JAMES W. BENTON, JR., Judge.

The trial judge convicted Luther Lee Wise of obstructing justice in violation of Code § 18.2-460(C). Wise contends Code § 18.2-460(C) is unconstitutional, in violation of the First and Fourteenth Amendments, both facially and as applied to him. We hold the statute is not constitutionally infirm, and we affirm the conviction.

I.

A grand jury indicted Wise for felony obstruction of justice, in violation of Code § 18.2-460(C). In pertinent part, this subsection of the statute provides as follows:

If any person by threats of bodily harm ... knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty ... relating to the violation of any violent felony offense listed in subsection C of [Code] § 17.1-805, he shall be guilty of a Class 5 felony.

The indictment charged that Wise feloniously, by threats of bodily harm, knowingly attempted to intimidate or impede a law-enforcement officer engaged in the discharge of his duties.

In a motion to dismiss the indictment, Wise contended Code § 18.2-460(C) was overbroad and violated the First Amendment. The motion and supporting memorandum asserted, in part, that the statute criminalized mere words, infringed upon a substantial amount of protected speech, and did not require the Commonwealth to "prove that the words alleged to have been spoken by [Wise] intimidated or frightened the person to whom they were directed." The trial judge heard argument on the motion prior to trial and overruled the motion.

The evidence at trial proved a police officer arrested Wise for breaking and entering a residence, a violent felony offense listed in Code § 17.1-805(C) and incorporated in Code § 18.2-460(C). After a magistrate denied bail to Wise, Wise asked the police officer if he could make a telephone call. When the officer told Wise he could do so at the jail, Wise responded "Good. Because I'm going to use it to have you dusted." The officer testified he questioned Wise about his statement and his intent. When the officer told Wise he would obtain a warrant for the threat, Wise then said he only intended to call the magistrate's office to have the officer terminated from his employment. Upon arriving at the jail, Wise said to the officer: "The first thing ... I'm going to do when I get out is find you. I know where you live, or, I see you all the time in town. You're mine." Later, while in his cell, Wise said in the presence of another officer, "I'm going to stab that fucking cop."

Wise testified he was intoxicated during the incident and did not recall his statements. When asked if he responded "yes" to the officer's inquiry about whether "dusted" meant "killed," Wise said he did not recall his response. The officer testified on rebuttal, however, that Wise said "yes" when the officer asked him if dusted "meant he was going to have [the officer] killed."

At the conclusion of the evidence, the trial judge found that Wise's testimony was not credible, that Wise was angry when he made the threats, and that Wise made threats of bodily harm to intimidate the officer in the performance of his duties. The trial judge, therefore, convicted Wise of the felony of obstructing justice.

II.

Wise contends Code § 18.2-460(C) is facially unconstitutional in violation of the First Amendment because it is not narrowly tailored to avoid criminalizing constitutionally protected speech. He advances three specific arguments in support of this contention: (1) the statute "is not limited ... to only words having a tendency to incite the listener to immediate violence" and, thus, it contravenes the "fighting words" doctrine articulated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); (2) the statute's "use of the term `threat' ... does not remove it from [infringing upon] the class of protected speech"; and (3) the statute offends the First Amendment because it "is limited to statements made to law enforcement." The Commonwealth argues Code § 18.2-460(C) is facially valid because it does not reach a substantial amount of constitutionally protected speech. We hold that the statute is not overbroad in contravention of the First Amendment.

(A)

"As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied ... in hypothetical situations ... [; however, the Supreme Court has recognized a] limited exception ... for statutes that broadly prohibit speech protected by the First Amendment." Ulster County Court v. Allen, 442 U.S. 140, 155, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610-16, 93 S.Ct. 2908, 2914-18, 37 L.Ed.2d 830 (1973)). "The Court has repeatedly held that such a statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984). To invoke this exception and to establish that Code § 18.2-460(C) is overly broad in violation of the First Amendment, Wise initially must show the statute "punishes a `substantial' amount of protected free speech, `judged in relation to the statute's plainly legitimate sweep.'" Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003) (citation omitted). If the statute does not reach a substantial amount of constitutionally protected speech, Wise's overbreadth challenge fails. Id.; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

Wise first contends the statute is unconstitutional "because it is not limited in its application to only words having a tendency to incite the listener to immediate violence." In other words, he argues he cannot be punished under a statute that "criminalizes speech outside the bounds of the classic `fighting words.'"

The Supreme Court long ago noted "that the right of free speech is not absolute at all times and under all circumstances." Chaplinsky, 315 U.S. at 571, 62 S.Ct. at 769. Upholding a New Hampshire statute, the Court held states have the authority to punish "certain well-defined and narrowly limited classes of speech ... includ[ing] the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 571-72, 62 S.Ct. at 769 (footnote omitted). The Court did not hold, however, that those enumerated instances were exhaustive of the state's authority under the First Amendment. Indeed, as the following quotation demonstrates, the Supreme Court specifically referred to Chaplinsky when later recognizing another limited class of speech exempt from the protection of the First Amendment.

The protections afforded by the First Amendment ... are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766[, 769], 86 L.Ed. 1031 (1942) ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem"). The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" R.A.V. v. City of St. Paul, [505 U.S. 377, 382-83, 112 S.Ct. 2538[, 2542-43], 120 L.Ed.2d 305 (1992)] (quoting Chaplinsky v. New Hampshire, supra, at 572, 62 S.Ct. [at 769]).

Thus, for example, a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572, 62 S.Ct. [at 769]; see also R.A.V. v. City of St. Paul, supra, at 383, 112 S.Ct. [at 2543] (listing limited areas where the First Amendment permits restrictions on the content of speech). . . . And the First Amendment also permits a State to ban a "true threat." Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399[, 1401], 22 L.Ed.2d 664 (1969) (per curiam) (internal quotation marks omitted); accord, R.A.V. v. City of St. Paul, supra, at 388, 112 S.Ct. [at 2546] ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774, 114 S.Ct. 2516, [2529], 129 L.Ed.2d 593 (1994); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 373, 117 S.Ct. 855[, 865], 137 L.Ed.2d 1 (1997).

Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003).

"[T]hese areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)." City of St. Paul, 505 U.S. at 383, 112 S.Ct. at 2543. In other words, speech that contains a threat of physical harm "is independently proscribable" under the First Amendment. Madsen, 512 U.S. at 774, 114 S.Ct. at 2529. See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982) (noting that "[t]he First Amendment does not protect violence"); Milk Wagon Drivers Union of Chicago, Local 753...