Com. v. Hicks

596 S.E.2d 74

267 Va. 573

COMMONWEALTH of Virginia v. Kevin Lamont HICKS.

Record No. 011728.

Supreme Court of Virginia.

April 23, 2004.

William E. Thro, Deputy State Sol. (Jerry W. Kilgore, Atty. Gen.; William Hurd, State Sol.; Maureen Riley Matsen, Deputy State Sol., on briefs), for appellant.

Amanda Frost (Steven D. Benjamin, Richmond; Betty Layne DesPortes; Brian Wolfman, Washington, DC; Benjamin & Des-Portes, Richmond; Public Citizen Litigation Group, Washington, DC, on brief), for appellee.

William G. Broaddus; City of Richmond and Richmond Redevelopment and Housing Authority (John A. Rupp, City Atty.; Norman B. Sales, Senior Asst City Atty.; William H. Baxter, II; McGuireWoods, on brief), amici curiae, in support of appellant.

Housing and Development Law Inst. (Adam N. Harrell, Jr.; Lisa Walker Scott; Harrell & Chambliss, on brief); American Civil Liberties Union of Virginia, Inc.(Rebecca K. Glenberg, on brief); the Thomas Jefferson Center for the Protection of Free Expression (J. Joshua Wheeler; Robert M. O'Neil, on brief); Richmond Tenants Organization, Charlottesville Public Housing Ass'n of Residents, and ENPHRONT (Sylvia M. Brennan; Hong Tran; Joshua N. Auerbach; Debra Gardner; Nat. Housing Law Project; Northwest Justice Project; Public Justice Project; Public Justice Center, on brief), amici curiae in support of appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, Senior Justice.

LEROY R. HASSELL, SR., Chief Justice.

I.

In this proceeding, which has been remanded to this Court from the Supreme Court of the United States, we consider whether a redevelopment and housing authority's trespass policy is void for vagueness under the Fourteenth Amendment to the United States Constitution and whether that policy violates a defendant's right of intimate association guaranteed by the Fourteenth Amendment.

II.

In Commonwealth v. Hicks, 264 Va. 48, 58, 563 S.E.2d 674, 680 (2002)¹, we held that a trespass policy implemented by the Richmond Redevelopment and Housing Authority (Housing Authority) was overly broad and, therefore, violated the First and Fourteenth Amendments to the United States Constitution. The United States Supreme Court disagreed with our holding and concluded that the challenged policy was not overly broad in violation of the First Amendment. Virginia v. Hicks, 539 U.S. 113, 123-125, 123 S.Ct. 2191, 2199, 156 L.Ed.2d 148 (2003). The Supreme Court remanded the case to this Court so that we could consider whether Hicks may challenge his conviction on other bases, assuming that those claims had been properly preserved. This Court entered an order directing Hicks and the Commonwealth to identify issues that had been asserted in the circuit court that the litigants thought had been preserved for this Court's consideration. Subsequently, this Court entered an order directing the litigants to address the following questions:

"1. Whether the Housing Authority's trespass policy violates appellee's right of association in violation of the First Amendment?

"2. Whether the Housing Authority's trespass policy is unconstitutionally vague on its face or as applied to appellee?

"3. Whether the Housing Authority's trespass policy violates appellee's [rights to] freedom of intimate association in contravention of the Fourteenth Amendment?"

The litigants agree, in view of the Supreme Court's holding that the Housing Authority's trespass policy did not affect Hicks' First Amendment right to expressive association, that this Court need not consider the first question stated above. Therefore, we limit our consideration to the remaining questions set forth in this Court's order.

III.

The Housing Authority is a political subdivision of the Commonwealth of Virginia. The Housing Authority owns and operates several housing developments in the City of Richmond for low-income residents, including a housing development known as Whitcomb Court.

In an effort to eradicate illegal drug activity in its housing developments, including Whitcomb Court which was described as an "open-air drug market," the Housing Authority decided to deny access to its property to persons who did not have legitimate reasons to visit the housing developments. The majority of persons who had been arrested for drug crimes at the Whitcomb Court housing development were people who did not reside there.

The Richmond City Council enacted an ordinance that "closed to public use and travel and abandoned as streets of the City of Richmond," streets and sidewalks in Whitcomb Court because the streets and sidewalks were "no longer needed for the public convenience." The City conveyed the streets and sidewalks by recorded deed to the Housing Authority.

The Housing Authority, in its capacity as owner of the private streets and sidewalks, authorized

"each and every Richmond Police Department officer to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing

Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property."

Defendant, Kevin Lamont Hicks, was convicted in the City of Richmond General District Court for trespass upon the Housing Authority's property on December 12, 1997. The general district court sentenced Hicks on February 10, 1998.

Gloria S. Rogers, a manager for the Housing Authority, gave Hicks a letter dated

April 14, 1998. The letter states in part:

"This letter serves to inform you that effective immediately you are not welcome on Richmond Redevelopment and Housing Authority's Whitcomb Court or any Richmond Redevelopment and Housing Authority property, This letter is an official notice informing you that you are not to trespass on [the Housing Authority's] property. If you are seen or caught on the premises, you will be subject to arrest by the police.

"A copy of this notice is on file and another copy will be provided to the Richmond Police Department for [its] record.

"Virginia Code, Section 18.2-119

"Trespass After Having Been For-bidden to do So

"If any person without authority of law goes upon or remains upon the lands, buildings, or premises of another, or any part, portion or area thereof, after having been forbidden to do so, either orally or in writing by the owner, lessee, custodian, or other person lawfully in charge thereof, or after having forbidden to do so by a sign or signs posted . on such lands, buildings, premises or portion of area thereof at a place or places where it may be reasonably seen . . . he and/or she shall be guilty of a Class I Misdemeanor.

"Thank you for your cooperation. "Sincerely,

"[Signed Gloria S. Rogers]

"Housing Manager

"[Whitcomb]

"Development

"I, the undersigned, acknowledge receipt of this notice.

"[Signed Kevin Hicks] [4-14-98]

"Signature Date received

"[Signed Alfonzo Joyner] [4-14-98] "Witnessing Officer Date"

Even though Hicks signed and received the letter dated April 14, 1998 informing him that he could not appear on the Housing Authority's property, he re-entered the property and was arrested for trespass by the Richmond Police Department on April 20, 1998. He appeared in the City of Richmond General District Court on June 26, 1998, and he was convicted of trespass in violation of Code § 18.2-119.

On January 20, 1999, Richmond Police officer, James Laino, was driving his police cruiser in the Whitcomb Court housing development. He observed Hicks, whom he had known from previous encounters, Laino had been present when Hicks was arrested for a prior trespass offense on the Housing Authority's property.

Officer Laino stopped his "police car and started to speak with Mr. Hicks. [Laino] said, `I know you're not supposed to be out here.'" Hicks responded that he was "just getting pampers for his baby." Laino issued a summons to Hicks for trespassing. During Hicks' bench trial in the circuit court, Officer Laino testified that the buildings at the Whitcomb Court housing development where the defendant was arrested for trespass contained "red and white" signs that stated that the streets in Whitcomb Court "are privatized and all the property is privatized, no trespass."

Gloria Rogers gave the following testimony during the trial:

"Q: All right. Please tell the Court, has [Hicks] come and have you banned him from the [Housing Authority's] property?

"A: Yes. "Q: All right. Please tell the Court how that came about.

"A: It came about in two respects. Number one— . . . .

"Number one, when the police see a person in the development and they say that they live someplace, they confirm with the office. And Kevin Hicks, they quite often saw him in the development and he gave them an address and I would pull the file and confirm he didn't live there.

"Secondly, because of the domestic violence in the development.

"THE COURT: ... Ma'am, have you told him to stay off the property before?

"THE WITNESS: Yes.

"THE COURT: How many times?

"THE WITNESS: I talked to Kevin Hicks in person twice."

The Circuit Court of the City of Richmond convicted Hicks of trespass in violation of Code § 18.2-119. This conviction is the subject of this remand from the Supreme Court.

IV.

A.

Hicks argues that the Housing Authority's trespass policy is unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution.² He asserts that the Housing Authority's trespass policy grants its employees and police officers "sweeping powers to define as criminal the innocent conduct of using streets and sidewalks near public housing." Continuing, Hicks claims...