COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
BRENT DAVID MARTTILA
OPINION BY
v. Record No. 2585-99-3 JUDGE LARRY G. ELDER
OCTOBER 24, 2000
CITY OF LYNCHBURG
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Randall J. Trost (Randall J. Trost, P.C., on
brief), for appellant.
No brief or argument for appellee.
Brent David Marttila (appellant) appeals from his bench
trial conviction for using violent, abusive language under
circumstances reasonably calculated to provoke a breach of the
peace in violation of Lynchburg Ordinance 27-13. 1 On appeal,
appellant contends the court erroneously (1) convicted him of
violating Code § 18.2-416 even though he was charged with
violating a Lynchburg ordinance and the Commonwealth did not
move to amend the charge; and (2) concluded the evidence was
sufficient to prove his behavior occurred in a face-to-face
encounter and was likely to provoke an immediate breach of the
peace. Because the record reflects that appellant was both
1
Appellant also was charged with failing to register a
vehicle and having no driver's license. He pleaded guilty to
those charges and does not contest them on appeal.
charged with and convicted for violating Lynchburg Ordinance
27-13 rather than Code § 18.2-416, we reject appellant's first
assignment of error. However, we agree that the evidence, as
found by the trial court, was insufficient to establish that
appellant's statements were uttered under circumstances having a
direct tendency to provoke an immediate breach of the peace.
Therefore, we reverse and dismiss appellant's conviction.
I.
BACKGROUND
At about 2:00 a.m. on June 24, 1999, Officer Hanson and
Lieutenant Swisher approached appellant to question him about a
vehicle registration problem. During an earlier encounter at
about 1:00 a.m., appellant had denied that the vehicle in
question belonged to him, and Officer Hanson had accepted
appellant's representations. However, when Lieutenant Swisher
saw appellant "standing at the [same] car" at about 2:00 a.m.,
Hanson and Swisher returned to question appellant further.
During the first encounter, appellant had the odor of alcohol on
his breath and was belligerent, and Hanson "was intimidated by
him." As a result, when the second encounter began, Hanson
called for backup, and Officer Edwards arrived on the scene
sometime thereafter.
While Hanson and Swisher were attempting to talk to
appellant during the second encounter, appellant walked across
the street from the car and sat on the front porch steps of a
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residence. Three or four other people were also seated on that
porch but did not make any threats or become involved in the
encounter in any significant way. When the officers asked
appellant to come down from the porch, he was uncooperative,
telling them to come up instead, and he "wouldn't answer any of
[the officers'] questions."
The officers--who had learned the vehicle did, in fact,
belong to appellant and that he had lived in Virginia for six
months without obtaining a Virginia driver's license or vehicle
registration--decided to effect an "investigative detention" in
the hope of gaining greater cooperation from appellant, and they
began to place him in handcuffs. When the officers decided to
place appellant in handcuffs and told him he was under arrest,
they were about twenty feet away from appellant's location on
the porch. As they approached the porch, appellant began to
make comments, and "the comments continued [as Swisher] actually
placed him in handcuffs" and Hanson "usher[ed] him off the front
steps." In a sarcastic, "slightly belligerent manner," "a
little louder than normal conversation, but [not] screaming,"
appellant "called [the officers] fucking pigs, [and said they]
were fucking jokes . . . [and] should be at a fucking donut
shop." 2 Although Officer Hanson believed appellant was "yelling
2
Each of the three officers gave a slightly different
account of precisely what appellant said, how close the officers
were to him when he made those statements, and whether he had
been handcuffed yet. Because the trial court found that
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the comments in a threatening fashion," appellant was seated
when he began to make these comments and did not shake his
fists, show a weapon or make any verbal threats. Appellant
stiffened up and did not attempt "to comply with [the officers']
commands" as they physically took him into custody and
handcuffed him, but they did not have to use their mace or other
weaponry, and appellant made no "motion to attack" any of the
officers.
Lieutenant Swisher testified that he was not afraid of
appellant and "didn't see anything that would lead [him] to
believe that Officer Hanson was fearful of [appellant]."
Officer Edwards testified that he "was cautious as far as
officer safety" but "wasn't afraid of [appellant]" and
"basically tuned [appellant] out" because he "didn't care to
hear what [appellant] had to say." Officer Hanson testified he
was "intimidated by [appellant]" during the first encounter and
that appellant "yell[ed] the comments [in the second encounter]
in a threatening fashion," but he gave no testimony that he was
intimidated, felt threatened, or thought he was going to have to
fight appellant during the second encounter.
Appellant was charged with violating Lynchburg Ordinance
27-13. However, at his bench trial, the court asked appellant's
appellant "use[d] the language as described by Officer Swisher"
"at the time he was being handcuffed" and that he did so "in a
slightly belligerent manner," we rely on these facts on appeal.
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counsel "which Code section . . . [appellant's breach of the
peace charge was] under." Counsel responded that it was "[Code
§] 18.2-416, breach of [the] peace." Counsel did not indicate
that appellant was charged under the corresponding local
ordinance and did not object to being tried under the statute
rather than the ordinance. All subsequent references at trial
were to Code § 18.2-416 rather than the corresponding Lynchburg
ordinance.
Appellant moved to strike at the close of the
Commonwealth's evidence and again at the close of all the
evidence. In denying the first motion, the court held that the
language in Ford v. City of Newport News, 23 Va. App. 137, 474
S.E.2d 848 (1996), concerning First Amendment protections for
verbal criticism of police officers was "dicta in [appellant's]
case" because Ford involved the disorderly conduct statute, Code
§ 18.2-415, whereas appellant's case involved the abusive
language statute, Code § 18.2-416. It also held that, even if
the statements regarding the amount of verbal abuse police
officers are required to absorb under the First Amendment were
applicable, the evidence, viewed in the light most favorable to
the Commonwealth, "has . . . risen above that level." In
denying the second motion and convicting appellant of the
charged offense, the trial court found as follows:
I find that at the time [appellant] was
being cuffed he did use the language as
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described by Officer Swisher and that was in
a slightly belligerent manner.
You have to remember that police
officers are human beings too. And while
they do have to absorb a certain amount of
abuse, they are protected by this statute
also for the reason that they might sort of
snap under the circumstances and do
something that would cause harm to the
defendant and be charged with something
themselves.
So these were fighting words under the
circumstances. That's the whole idea under
this statute. And I find [appellant] guilty
of violating Virginia Code § 18.2-416 in
that he used the language that he did under
the circumstances because [it was]
reasonably calculated to cause a breach of
the peace.
Although all references at trial were to Code § 18.2-416,
the conviction order indicates that the court found appellant
guilty of violating "27-13," the Lynchburg ordinance under which
he was charged.
II.
ANALYSIS
A.
JURISDICTION TO CONVICT UNDER VIRGINIA CODE
RATHER THAN LOCAL ORDINANCE
Appellant contends first that the court lacked jurisdiction
to convict him of violating Code § 18.2-416 because he was
originally charged under Lynchburg Ordinance 27-13 and the court
did not amend the charge to reflect the similar Virginia
statute. He admits he failed to object to this discrepancy in
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the trial court but contends the good cause and ends of justice
exceptions to Rule 5A:18 compel us to consider this error.
Assuming without deciding that appellant's assignment of
error is properly before us, 3 we nevertheless conclude that no
reversible error occurred. Settled principles provide that "[a]
court speaks through its orders and those orders are presumed to
accurately reflect what transpired." McBride v. Commonwealth,
24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). This
presumption also applies where an order conflicts with a
transcript of related proceedings. See Stamper v. Commonwealth,
220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979). Here, although
the trial transcript indicates the court convicted appellant
under Code § 18.2-416, the conviction order provides that the
conviction was rendered pursuant to "27-13," which is the
3
It is arguable from the record that appellant invited or
consented to being convicted under the statute rather than the
local ordinance. When the trial court asked appellant's counsel
at trial what code section applied, counsel responded that it
was "[Code §] 18.2-416, breach of [the] peace." Counsel did not
indicate that appellant was charged under the corresponding
local ordinance and did not object to appellant's being tried
under the statute rather than the ordinance. Counsel's closing
argument also referenced the statute rather than the ordinance.
Cf. Fontaine v. Commonwealth, 25 Va. App. 156, 163-65, 487
S.E.2d 241, 244-45 (1997) (holding that mere failure to object
to conviction for offense not lesser included in charged offense
does not constitute waiver of right not to be convicted for
offense not charged); Manns v. Commonwealth, 13 Va. App. 677,
679-80, 414 S.E.2d 613, 615 (1992) (holding that specific
request to trial court to convict of misdemeanor not lesser
included in charged felony barred accused from objecting on
appeal to being convicted of offense not charged or lesser
included).
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Lynchburg ordinance under which appellant was originally
charged. Because no inconsistency exists between the original
charge and the order of conviction, no reversible error exists.
B.
SUFFICIENCY OF THE EVIDENCE
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the appellee,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of the trial court will be
disturbed only if plainly wrong or without evidence to support
it. See id.
Lynchburg Ordinance 27-13, which is almost identical to the
language of Code § 18.2-416, 4 provides as follows:
If any person shall in the presence or
hearing of another curse or abuse such other
person, or use any violent abusive language
to such person concerning himself or any of
his relatives, or otherwise use such
language under circumstances briefly
calculated to provide a breach of the peace,
he shall be guilty of a class 3 misdemeanor.
4
Code § 18.2-416 provides as follows:
If any person shall, in the presence or
hearing of another, curse or abuse such
other person, or use any violent abusive
language to such person concerning himself
or any of his relations, or otherwise use
such language, under circumstances
reasonably calculated to provoke a breach of
the peace, he shall be guilty of a Class 3
misdemeanor.
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The Virginia Supreme Court has observed that the corresponding
state statute "is aimed at preventing personal, face-to-face,
abusive and insulting language" likely to "precipitate an
immediate, forceful and violent reaction by a reasonable
person." Mercer v. Winston, 214 Va. 281, 284, 199 S.E.2d 724,
726 (1973). The statute is constitutional if its application is
limited to words that "have a direct tendency to cause acts of
violence by the person at whom, individually, the remark is
addressed." Id. (citing State v. Chaplinsky, 18 A.2d 754, 758
(N.H. 1941), aff'd, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 2d
1031 (1942) (where accused, in custody of traffic officer on
city street, encountered city marshall, who was responding to
scene of riot precipitated in part by accused, and called him a
"God damned racketeer" and "damned Fascist" and said the "whole
government of Rochester are Fascists or agents of Fascists,"
evidence established that "appellations" were "epithets likely
to provoke the average person to retaliation, and thereby cause
a breach of the peace")). By analogy, any similar local
ordinance is constitutional if interpreted in the same fashion.
As we noted in Ford, 23 Va. App. at 143, 474 S.E.2d at
850-51, which involved a related statute also requiring proof
that the proscribed behavior has a "direct tendency to cause
acts of violence," the United States Supreme Court has
emphasized that
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"the First Amendment protects a significant
amount of verbal criticism and challenge
directed at police officers. 'Speech is
often provocative and challenging. . . .
[But it] is nevertheless protected against
censorship or punishment, unless shown
likely to produce a clear and present danger
of a serious substantive evil that rises far
above public inconvenience, annoyance or
unrest.'"
Id. at 143, 474 S.E.2d at 851 (quoting City of Houston v. Hill,
482 U.S. 451, 461, 107 S. Ct. 2502, 2509, 96 L. Ed. 2d 398
(1987) (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4,
69 S. Ct. 894, 896, 93 L. Ed. 1131 (1949))) (interpreting
statute proscribing interference with a police officer in the
execution of his duties). "The freedom of individuals verbally
to oppose or challenge police action without thereby risking
arrest is one of the principal characteristics by which we
distinguish a free nation from a police state." Hill, 482 U.S.
at 462-63, 107 S. Ct. at 2510; see id. at 463 n.12, 107 S. Ct.
at 2510-11 n.12 (citing with approval 1929 case reversing
conviction of individual who said to police officer, "You big
muttonhead, do you think you are a czar around here?" (quoting
Ruthenbeck v. First Crim. Judicial Court of Bergen City, 147 A.
625, 625 (N.J. 1929))). The United States Courts of Appeals for
the Second, Eighth and Ninth Circuits have applied Hill to hold
that "the 'fighting words' doctrine may be limited in the case
of communications addressed to properly trained police officers
because police officers are expected to exercise greater
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restraint in their response than the average citizen." 5 Buffkins
v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (holding as
5
To the extent Burgess v. City of Virginia Beach, 9 Va.
App. 163, 167, 385 S.E.2d 59, 61 (1989), holds law enforcement
officers are not required to exercise a higher degree of
restraint than ordinary citizens, we view it as conflicting with
the United States Supreme Court's holding in Hill, 482 U.S. at
461-63 & n.12, 107 S. Ct. at 2510-11 & n.12.
Burgess was briefed in this Court in 1987, the same year in
which Hill was decided. Although the decision in Hill was
released prior to the briefing in Burgess, neither Burgess nor
the City of Virginia Beach cited Hill to the Court, and the
Burgess opinion makes no reference to Hill.
In deciding Burgess, we noted Justice Powell's concurrence
in Lewis v. New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed.
2d 214 (1975), and held, in essence, that we were not bound by
it. See 9 Va. App. at 167-68, 385 S.E.2d at 61. We made no
reference to Hill, in which the United States Supreme Court
quoted Justice Powell's concurrence in Lewis and concluded, as
discussed more fully in the text of this opinion, that "[t]he
freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a
police state." Hill, 482 U.S. at 462-63, 107 S. Ct. at 2510.
In our subsequent decision in Ford, 23 Va. App. at 144, 474
S.E.2d at 851, we quoted extensively from Hill, recognizing, at
least implicitly, its holding that police officers are, in fact,
required to exercise a higher degree of restraint when
confronted by language or conduct which is offensive but does
not have a direct tendency to cause acts of violence by the
person to whom, individually, the language or conduct is
directed. Applying that standard to Ford's conviction for
disorderly conduct, we held as follows: "There is simply no
evidence in the record to support the reasonable belief that the
defendant's conduct would cause a reasonable officer to respond
with physical force or violence or that the officers considered
the defendant's throwing his arms in the air to be an assault."
Id. (emphasis added).
Thus, our decision in Ford recognized and applied Hill's
holding that the First Amendment requires properly trained police
officers to exercise a higher degree of restraint when confronted
by disorderly conduct and abusive language. Because our holding
in Ford interpreted and applied the United States Supreme Court's
precedent from Hill whereas our holding in Burgess did not
consider Hill, we find controlling the reasoning of Hill, as
interpreted and applied in Ford, and conclude that Burgess, to
the extent it conflicts with Hill and Ford, is not controlling.
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a matter of law that telling a police officer he was an
"asshole" while departing airport interview room did not
constitute fighting words in absence of evidence that speaker
became violent or threatened violence); see Posr v. Court
Officer Shield #207, 180 F.3d 409, 415-16 (2d Cir. 1999); Duran
v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990). These
requirements apply to both Code §§ 18.2-415 and 18.2-416 because
both have been interpreted to comply with the First Amendment
only if they punish specified acts or utterances that have a
"direct tendency to cause acts of violence by the person at
whom, individually, the [remark or conduct is addressed or
directed]." Mercer, 214 Va. at 284, 199 S.E.2d at 726
(interpreting predecessor to Code § 18.2-416); Squire v. Pace,
380 F. Supp. 269, 278-79 (W.D. Va. 1974) (declaring predecessor
to Code § 18.2-415 unconstitutional because not limited to acts
having direct tendency to cause acts of violence), aff'd, 516
F.2d 250 (4th Cir. 1975); 1976 Va. Acts ch. 244 (amending new
disorderly conduct statute, Code § 18.2-415, enacted pursuant to
1975 Va. Acts chs. 14, 15, to proscribe only conduct having
direct tendency to cause acts of violence).
Under this standard, we conclude, as a matter of law, that
appellant's words did not have the necessary "direct tendency"
to cause "an immediate, forceful and violent reaction by a
reasonable person" in the position of the police officers at
whom the words were directed. Although appellant stiffened up
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when the officers began to handcuff him, he made no threatening
gestures and merely expressed contempt for the officers in a
general sense when he called them "fucking pigs" and "fucking
jokes" and said they "should be at a fucking donut shop." See
Chaplinsky, 18 A.2d at 762 (noting that the words, "damned
Fascist," were "fighting words" when addressed to the average
American in 1941 but might not so qualify at a different time);
R.I.T. v. State, 675 So. 2d 97, 99 (Ala. Crim. App. 1995)
(noting that "[w]ords must be evaluated in the era in which they
are uttered--words that constitute fighting words change from
generation to generation, or even more quickly" and holding that
teenager's statement to officer, "fuck you," made in presence
only of officer and teenager's parents and brother as teenager
walked away from officer did not constitute fighting words under
heightened standard applied to police officers); Christine Egan,
"Fighting Words" Doctrine: Are Police Officers Held To A Higher
Standard, Or Per Bailey v. State, Do We Expect No More From Our
Law Enforcement Officers Than We Do From The Average Arkansan?,
52 Ark. L. Rev. 591, 591-92 (1999) ("Much has changed since
[Chaplinsky was decided] in 1942. Our society is much coarser,
both in its language and its conduct. What constituted
'fighting words' in 1942 is unlikely to even raise an eyebrow
today."). This is precisely the type of "verbal criticism [of]
. . . police officers" that is "'protected against censorship or
punishment'" by the First Amendment because it is not, under the
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circumstances established by the record, "'likely to produce a
clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance or unrest.'"
Hill, 482 U.S. at 461, 107 S. Ct. at 2509 (quoting Terminiello,
337 U.S. at 4, 69 S. Ct. at 896). Compare Mercer, 214 Va. at
284-87 & n.1, 199 S.E.2d at 726-28 & n.1 (denying habeas
petition for 1971 conviction under abusive language statute
where protester involved in racial disturbance that "approached
near riot proportions" waived his hands and uttered multiple
racial epithets at police officer, including "you white son of a
bitch," "you honky pig," "you white mother fucker," "white
bastard" and "pig").
For these reasons, we hold, as a matter of law, that the
evidence was insufficient to prove appellant's statements had a
direct tendency to provoke an immediate breach of the peace by
reasonably trained police officers in the position of the
officers to whom the remarks were addressed. Therefore, we
reverse and dismiss appellant's conviction on these grounds, and
we find it unnecessary to consider appellant's contention that
he did not make the statements in a face-to-face encounter.
Reversed and dismissed.
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