Kevin Lamont HICKS v. COMMONWEALTH of Virginia, 33 Va. App. 561

HUMPHREYS, Judge. Kevin Lamont Hicks appeals his conviction in a trial de novo appeal to the circuit court (trial court) for trespass.

Hicks complains that 1) the trial court erred in denying his motion to remand the case to the general district court with instructions for the matter to be tried before a different judge of that court and for the Commonwealth’s Attorney to prosecute the case in that forum; 2) the trial court erred in denying his motion to dismiss the prosecution on the grounds that his due process and First Amendment rights were violated; and 3) the trespassing statute is unconstitutionally vague and overbroad. We disagree and for the reasons that follow, affirm his conviction. I.

Background Previous to January 20, 1999, Hicks had been convicted of trespassing on the property of Whitcomb Court on February 10, 1998, and June 26, 1998, respectively, and of damaging property there on April 27,1998. Whitcomb Court is a housing project owned by the Richmond Redevelopment and Housing Authority (“Authority”). The City of Richmond, by ordinance, deeded certain city streets including the 2300 block of Bethel Street, to the Authority for the express purpose of privatizing and closing them to traffic by non-residents. “No Trespassing” signs were placed at intervals on the privatized streets.

The Authority authorized the Richmond Police Department to enforce the trespass statute on its property, including Whitcomb Court. On April 14, 1998, Mrs. Gloria Rogers, housing manager at Whitcomb Court, personally served a written notice on Hicks advising him that he was banned from the Whitcomb Court property. This notice specifically advised Hicks that if he were “seen or caught on the premises, [he would] be subject to arrest by police.” Hicks acknowledged receipt by signing a copy of the notice. On two occasions after receiving the notice, Hicks went to Mrs.

Rogers and sought permission to come back on the property. He told Mrs. Rogers that his mother lived there. His barment from the property was not lifted. On January 20, 1999, Officer James Laino observed Hicks walking in the 2300 block of Bethel Street. Officer Laino had personal knowledge that Hicks was barred from the property and had arrested him previously for trespassing. Hicks told Laino that he was there “to bring pampers for his baby.” Laino issued Hicks a summons for trespassing. Hicks was tried in general district court on the trespassing summons on April 21, 1999. Hicks was represented by counsel.

No prosecutor was present on behalf of the Commonwealth. Officer Laino testified and responded to questions by the court and was cross-examined by counsel for Hicks. Hicks then testified on his own behalf. Following direct examination, the court propounded several questions to which counsel for Hicks objected. Counsel for Hicks moved to strike Hicks’ “testimony in totality.” The court granted this motion. The defendant was convicted in general district court and noted his appeal to the circuit court.

Prior to trial in the circuit court, Hicks filed a motion asking the circuit court to remand the case for a new trial in the general district court before a different judge and with direction to the Commonwealth’s Attorney that his office represent the Commonwealth in the new trial. At the hearing on his motion, Hicks asked that, in the alternative to granting his motion to remand, the case be dismissed. The circuit court denied the' motion on the grounds that it lacked any authority to grant it.

Also prior to trial, Hicks moved to dismiss the charge on the ground that the Authority’s trespass policy violates the federal and state constitutions. At a hearing on this motion, Mrs. Rogers testified as to the trespass policy at Whitcomb Court. Through Rogers, a flyer was introduced into evidence which the Authority gave to residents and which described the privatization of the streets in the housing complex.

This flyer stated and Rogers confirmed in her testimony that nonresidents who have not been barred from the property and who can demonstrate that they have been invited by a resident are not affected by the trespassing policy. Rogers also testified that the open-air drug market in the area was the reason for much of the policy toward trespassers and that it is usually a member of the police department who gives the notice and warning. Mrs. Rogers testified that criminal acts on the premises, including those involving drugs or domestic violence, were grounds for barment.

She further testified that the police were authorized to warn non-residents to leave the property if they could not demonstrate that they were invited by a resident and to bar them from returning. Additionally, Mrs. Rogers indicated there was a process for having a barment lifted by submitting a written request through the Authority’s director of housing operations.

She also testified that any organization that seeks to use a privatized street must get permission first and requests to hold functions or pass out materials on the privatized streets are referred to a “community council.” She testified that she had not denied permission to anyone who had sought to pass out flyers on the complex property. The motion to dismiss on constitutional grounds was denied, and Hicks was subsequently tried de novo in a bench trial and convicted of trespassing. II.

Motion for Remand Hicks first argues that he was entitled to have his case remanded to the general district court for a new trial before another judge because the judge of that court who presided over the initial trial improperly assumed the role of a prosecutor by “cross-examining” him. The Supreme Court of Virginia has long held that there is no inherent damage to a fair trial when a judge asks questions of a witness. [A] trial judge [may] ask questions of a witness either on his examination in chief or on cross-examination. The practice is common and perfectly permissible.

Indeed, there are times when it is his duty to do so.

He is not to sit there and see a failure of justice on account of omissions to prove facts plainly within the knowledge of a witness, but the character of his questions should not be such as to disclose bias on his part, or to discredit the truthfulness of the witness. “For the purpose of eliciting evidence which has not otherwise been brought out, it is proper for the judge to put the questions to a witness either on his examination in chief or on his cross-examination, and where anything material has been omitted, it is sometimes his duty to examine a witness.” Mazer v.

Commonwealth, 142 Va. 649, 655, 128 S.E. 514, 516 (1925) (citations omitted). In addition, we have held that “the trial court, in the exercise of its sound discretion, may permit jurors to submit written questions to be asked of a witness.” Williams v. Commonwealth, 24 Va.App. 577, 582, 484 S.E.2d 153, 155 (1997). We also noted in Williams that “[t]he function of a jury is to assure a fair and equitable resolution of all factual issues.

The jury serves as the final arbiter of the facts, ‘charged with weighing the evidence, judging the credibility of the witnesses, and reaching a verdict’ in the case.” Id. at 582, 484 S.E .2d at 155. This function belongs no less to the court when serving as the fact finder. We need not determine here whether the general district court judge’s questions demonstrated an inappropriate bias or prejudice because the court granted Hicks’ motion to strike the questions as well as his answers.

In addition, the remedy provided to any defendant in a criminal case who perceives error on the part of a trial court is to exercise the right to appeal the matter to a higher tribunal. In the context of misdemeanors tried in the district courts, the General Assembly has established a right to a trial de novo in the circuit court. A de novo hearing means a trial anew. On appeal, a conviction in the district court is annulled, and a new trial is held in the circuit court. See Ledbetter v. Commonwealth, 18 Va.App. 805, 447 S.E.2d 250 (1994).

While it would clearly be preferable for the Commonwealth to be represented by counsel in every case in which it is a party, the General Assembly has declined to mandate such representation. Code § 15.2-1627(

B) recites the duties of Commonwealth’s Attorneys and their assistants. This statute only requires Commonwealth’s Attorneys to prosecute felonies and provides that a prosecutor “may in his discretion, prosecute Class 1, 2 and 3 misdemeanors.” Clearly, the General Assembly decided as a matter of policy to place the discretion for the representation of the Commonwealth in misdemeanor cases in the hands of the executive branch rather than the judicial branch of government. Hicks relies on the decision of the Supreme Court of the United States in Ward v.

Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), as authority for his argument that a trial de novo does not cure errors committed in a lower court. We find his reliance on Ward is misplaced. In Ward, the Supreme Court addressed a systemic problem of bias inherent in the infrastructure of local mayors’ courts. There, mayors of villages sat as judges in the courts, and a major portion of village income was derived from the collection of these fines.

In finding that such a scheme violates the due process rights of criminal defendants in the mayors’ courts, Justice Brennan noted that the constitutional infirmity was grounded in the separation of powers doctrine.

Although “the mere union of the executive power and the judicial power in him cannot be said to violate due process of law,” the test is whether the mayor’s situation is one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.” Plainly that “possible temptation” may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court.

Id. at 60, 93 S.Ct. at 83 (citations omitted). Hicks does not allege, nor do we find, such systemic bias in the procedural structure of the district courts in the Commonwealth. Thus, assuming without deciding that the questions propounded by the general district court judge constituted error, we find that the trial de novo in the circuit court provided an adequate remedy. III. First Amendment Hicks asserts that the Authority’s trespass policies violate his First Amendment right to freedom of association under the constitutions of the United States and the Commonwealth of Virginia.

Hicks was charged with violating Code § 18.2-119, which provides in pertinent part that “[i]f any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so ... [or] after having been forbidden to do so by a sign or signs posted ... shall be guilty of a Class 1 misdemeanor.” Hicks concedes that he had been forbidden to come onto the Whitcomb Court property and admits he did so notwithstanding his barment.

Furthermore, he apparently took no steps to appeal his barment through official channels of the Authority or the courts. Instead, Hicks argues that, notwithstanding the privatization of the street where he was cited, it was public property constituting a “public forum” under the holding of Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). We disagree. First, the Supreme Court of Virginia has specifically held that the trespass statute applies to publicly owned property. See, e.g., Johnson v. Commonwealth, 212 Va. 579, 186 S.E.2d 53 (1972); Jordan v.

Commonwealth, 207 Va. 591, 151 S.E.2d 390 (1966); Miller v. Harless, 153 Va. 228, 149 S.E. 619 (1929). In addition, we have held that an alleyway, which has been vacated by municipal ordinance and marked with “No Trespassing” signs, is not “intended for public use.” Miller v. Commonwealth, 10 Va. App. 472, 475, 393 S.E.2d 431, 433 (1990). “[T]he extent to which the Government can control access depends on the nature of the relevant forum.” United States v. Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571 (1990).

Regulation of a non-public forum requires only reasonableness and “not an effort to suppress expression merely because public officials oppose the speaker’s view. Indeed, control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Id. at 730, 110 S.Ct. at 3121-22 (citations omitted). The Attorney General cites Daniel v. City of Tampa, 38 F.3d 546 (11th Cir.1994), cert. denied, 515 U.S. 1132, 115 S.Ct. 2557, 132 L.Ed.2d 811 (1995).

The Daniel court considered the constitutionality of a Florida trespass-after-warning statute in the context of the property of the Tampa Housing Authority. There, as here, the stated rationale for the trespassing enforcement effort was to “provide a safe environment for citizens” in a place often used to sell drugs. Id. at 548. In concluding that the Tampa Housing Authority property was a non-public forum, the Daniel court found that the restriction on access was content neutral and reasonable and that Florida’s trespass statute was not vague or overbroad.

We find the Daniel analysis, applying Kokinda, to be persuasive. The Authority’s trespass policy serves a reasonable purpose and is content neutral. Once a person is barred, the person is subject to arrest if he or she returns to the property. We have previously upheld the delegation of authority by a public housing complex to police officers to bar unauthorized individuals from the property for the purpose of preventing crime, protecting property and preserving the peace. See Holland v. Commonwealth, 28 Va.App. 67, 502 S.E.2d 145 (1998).

Hicks also argues that the street privatization and trespassing enforcement policy infringes on his freedom to associate. We have previously noted that, although the First Amendment does not explicitly protect a “right of association,” the Supreme Court of the United States has recognized such a right in two circumstances, “intimate association” and “expressive association.” See Collins v. Commonwealth, 30 Va.App. 443, 517 S.E.2d 277 (1999). Hicks asserts that his right to intimate human relationships is infringed by the Authority’s policy.

In Collins, we held that “the liberty interest in intimate association is rooted in the necessity of affording ‘certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.’ ” Id. at 452, 517 S.E.2d at 281 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618-19, 104 S.Ct. 3244, 3250, 82 L.Ed.2d 462 (1984)) (emphasis added). The only evidence in the record of Hicks’ “intimate associations” in Whitcomb Court are his statement to Officer Laino that he was “bring[ing] pampers to his baby” and his statement to Mrs.

Rogers that his mother lived there. Assuming without deciding that this evidence constitutes a sufficient showing that Hicks’ right to association is implicated by the Authority’s trespassing policy, we consider whether the policy constitutes an unjustified interference with such intimate familial associations. As already noted, the policy serves a reasonable public safety purpose. Hicks was not a resident of Whitcomb Court. There is no evidence before us that Hicks was invited to the complex.

The trespassing policy contains procedures for a resident to secure permission for a guest to come onto the Authority’s property but the record is silent as to any efforts to comply with such procedure. Hicks was previously convicted of repeated criminal acts committed on the property. Any interference in Hicks’ right to intimately associate with residents of Whitcomb Court caused by his barment is limited to Authority property which, as already stated, though publicly owned, constitutes a “non-public forum” for First Amendment purposes.

We find on these facts that to the extent Hicks’ barment from the property interfered with his right to “intimate association” with residents of Whitcomb Court, such interference was reasonable, limited and justified. IV. Trespass Statute Finally, Hicks challenges the trespassing statute as unconstitutionally vague and further, that it is unconstitutionally overbroad.

We note, however, that while he attacks the statute on these dual grounds, his arguments focus instead on the Authority’s policies. “A penal statute is unconstitutionally void-for-vagueness if it does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Santillo v. Commonwealth, 30 Va.App. 470, 482, 517 S.E.2d 733, 739 (1999) (citation omitted). Code § 18.2-119 is by no means complex or difficult for one of ordinary intelligence to comprehend.

It punishes those who enter upon or remain upon the property of another after having been forbidden to do so by posted sign or personal admonishment. We do not find this statute unconstitutionally vague, either on its face or as applied to Hicks. We turn now to Hicks’ argument that the trespassing statute is unconstitutionally overbroad.

A statute may be overbroad if it “is one that is designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment.” Over-breadth is a doctrine whose reach dissipates when a statute proscribes primarily conduct and not speech. If a penal statute proscribes both conduct and speech, “the over-breadth of the statute must ... be substantial ... in relation to the statute’s plainly legitimate sweep.” Parker v.

Commonwealth, 24 Va.App. 681, 690, 485 S.E.2d 150, 154-55 (1997) (citations omitted). “[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court for [the statute] to be facially challenged on overbreadth grounds.” Id. (citing City Council v. Taxpayers for Vincent, 466 U.S. 789, 800-01, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984) (citation omitted) (footnote omitted)). We do not find Code § 18.2-119 to be overbroad. The legitimate purpose of the statute is to punish conduct, not protected speech.

It applies only on private or non-public property. The statute requires prior notice be given to those implicated by its reach. We do not find that the statute imposes a substantial burden on constitutionally protected conduct nor do we find any realistic danger that the First Amendment rights of parties not before the court will be significantly compromised. For all of these reasons, we affirm the decision of the trial court. Affirmed. .

The transcript of the trial in the general district court identifies the witness as "Officer James Hannah.” Although the discrepancy is not fully explained in the record, it appears that this witness was actually the same Officer James Laino who issued the summons and testified in the circuit court. . Code § 16.1-136 provides in pertinent part: "Any appeal taken under the provisions of this

chapter shall be heard de novo in the appellate court and shall be tried without formal pleadings in writing; and, ... the accused shall be entitled to trial by a jury in the same manner as if he had been indicted for the offense in the circuit court.” . Code § 15.2-1627(

B) provides in pertinent part: "The attorney for the Commonwealth ... shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both....”