Elliott v. Commonwealth

Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.

RICHARD J. ELLIOTT

v. Record No. 003014

COMMONWEALTH OF VIRGINIA

JONATHAN O'MARA

v. Record No. 010038 OPINION BY
JUSTICE DONALD W. LEMONS
COMMONWEALTH OF VIRGINIA MARCH 5, 2004

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

On remand from the Supreme Court of the United States, we

consider the proper construction of the prima facie evidence

provision of Code § 18.2-423 and the severability of the

provision from the core provisions of the statute.

Additionally, we consider whether the convictions of the

defendants should be vacated and dismissed, vacated with the

opportunity for the Commonwealth to retry the defendants, or

whether the convictions should be affirmed.

I. Facts and Proceedings Below

On the night of May 2, 1998, Richard J. Elliott,

("Elliott") and Jonathan S. O'Mara ("O'Mara") erected a cross

in the yard of James S. Jubliee, Elliott's next-door neighbor,

and attempted to ignite it. According to the record, Elliott

conceived of the cross burning as revenge against Jubliee
because Jubliee had complained to Elliott's mother about

gunfire in Elliott's backyard. Elliott convinced two friends,

O'Mara and David Targee, to aid him in the burning.

The Commonwealth prosecuted Elliott and O'Mara for

attempted cross burning and conspiracy to commit cross burning

under Code §§ 18.2-423, 18.2-16, and 18.2-22. O'Mara pled

guilty to attempted cross burning and conspiracy to commit

cross burning but conditioned his plea upon the reservation of

his right to challenge the constitutionality of Code § 18.2-

423 on appeal. Elliott chose to be tried by a jury. The

trial court instructed the jury that in order to find Elliott

guilty of attempted cross burning, "The Commonwealth must

prove beyond a reasonable doubt . . . [t]hat the defendant had

the intent of intimidating any person or group of persons."

No instruction based upon the prima facie evidence provision

of Code § 18.2-423 was given. A jury found Elliott guilty of

attempted cross burning but acquitted him of conspiracy to

commit cross burning.

In Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738

(2001), an appeal consolidating the Elliott and O'Mara cases

with a third case involving Barry E. Black ("Black"), who was

charged under § 18.2-423 for burning a cross at a Ku Klux Klan

rally, we held that § 18.2-423 was facially invalid as

selective regulation of speech based upon content. Our ruling

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was premised upon the language of the statute and our

interpretation of the United States Supreme Court's ruling in

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). We held that

the statute was underinclusive, because it singled out "a

particular form of intimidating symbolic speech" for

punishment while leaving other forms unregulated. Black v.

Commonwealth, 262 Va. at 773-76, 553 S.E.2d at 743-45.

Additionally, we held that the language of the prima facie

evidence provision of the statute was overbroad because of its

chilling effect upon the exercise of free speech under the

First Amendment. Id. at 777-78, 553 S.E.2d at 746.

The Commonwealth appealed our decision to the United

States Supreme Court. In a plurality opinion authored by

Justice O'Connor, the Supreme Court held that the Commonwealth

may engage in content discrimination "[w]hen the basis for the

content discrimination consists entirely of the very reason

the entire class of speech at issue is proscribable."

Virginia v. Black, 538 U.S. 343, 361 (2003). Thus, the

Commonwealth may prohibit cross burning with intent to

intimidate, even though it fails to prohibit the burning of

other objects, because cross burning is significantly more

likely to intimidate. Id. at 363.

Although it concluded that the core provisions of Code

§ 18.2-423 were constitutional, the Supreme Court held that

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the prima facie evidence provision of the statute was

unconstitutional because it "strips away the very reason why a

State may ban cross burning" − the intent to intimidate. Id.

at 365. Using the language of the jury instruction given in

the case involving Black as the interpretation of the prima

facie evidence provision, the Supreme Court held that the

provision "as interpreted by the jury instruction" was

unconstitutionally overbroad. Id. at 364.

The Supreme Court vacated the judgment in Black v.

Commonwealth, dismissed the case against Black, and remanded

the Elliott and O'Mara cases to this Court to determine

whether the jury instruction given in Black's trial was the

proper interpretation of the prima facie evidence provision,

whether the prima facie evidence provision could be severed

from the statute if a constitutional interpretation could not

be found, and the proper disposition of the cases against

Elliott and O'Mara. Virginia v. Black, 538 U.S. at 367-68.

II. Analysis

A. Constitutionality of the
Prima Facie Evidence Provision

Code § 18.2-423, in effect at the time defendants

committed the offenses, provided:

It shall be unlawful for any person or
persons, with the intent of intimidating any
person or group of persons, to burn or cause to

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 be burned, a cross on the property of another,
a highway or other public place . . .
Any such burning of a cross shall be prima
facie evidence of an intent to intimidate a
person or group of persons.

A violation of this section is punishable as a Class 6 felony.

In Black v. Commonwealth, we held that the prima facie

evidence provision "sweeps within its ambit for arrest and

prosecution, both protected and unprotected speech." 262 Va.

at 778, 553 S.E.2d at 746. We based our holding directly on

the language of the statute, not the language of the jury

instruction used at Black's trial, because the statute itself

was the common thread among the three procedurally and

factually distinct cases.

Although the Commonwealth suggests an alternate

interpretation for the prima facie evidence provision, * we hold

that the instruction given at Black's trial properly

interprets the prima facie evidence provision of Code § 18.2-

423. The instruction provided: "The burning of a cross, by

itself, is sufficient evidence from which you may infer the

required intent." Of course, no one jury instruction contains

all of the applicable law in a given case. The law applicable

to the case is contained in multiple instructions which, taken

*
The Commonwealth argues that adding a statement to the
instruction explaining to the jury that prima facie evidence
is rebuttable would properly interpret the statute and remove
all concerns regarding constitutionality.

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collectively, give proper guidance to the jury. See Van Duyn

v. Matthews, 181 Va. 256, 261, 24 S.E.2d 442, 444 (1943);

Adamson v. Norfolk & Portsmouth Traction Co., 111 Va. 556,

561, 69 S.E. 1055, 1058 (1911).

The subject instruction must be read in context with the

general instructions given in virtually every criminal jury

trial in Virginia concerning reasonable doubt, presumption of

innocence, and the credibility of witnesses. These additional

instructions reflect general principles of criminal law and

procedure including that the defendant is not required to

produce any evidence, that the Commonwealth bears the burden

of proof beyond a reasonable doubt on every element of the

offense, that the jury must give impartial consideration to

all the evidence presented, and that the jury must weigh the

credibility of witnesses but may not arbitrarily disregard

believable testimony. Taken in context of the other

instructions, the subject instruction concerning the prima

facie evidence provision of Code § 18.2-423 properly

interprets the provision, but it does not save the provision

from unconstitutionality.

In Black v. Commonwealth, 262 Va. at 777-78, 553 S.E.2d

at 745-46, we held that the statutory provision concerning

prima facie evidence of intent to intimidate affects both

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protected and unprotected speech, and consequently, is

overbroad. The plurality in Virginia v. Black agreed:

The prima facie evidence provision permits a
jury to convict in every cross-burning case in
which defendants exercise their constitutional
right not to put on a defense. And even where
a defendant like Black presents a defense, the
prima facie evidence provision makes it more
likely that the jury will find an intent to
intimidate regardless of the particular facts
of the case. The provision permits the
Commonwealth to arrest, prosecute, and convict
a person based solely on the fact of cross
burning itself.

It is apparent that the provision as so
interpreted " 'would create an unacceptable
risk of the suppression of ideas.' " The act
of burning a cross may mean that a person is
engaging in constitutionally proscribable
intimidation. But that same act may mean only
that the person is engaged in core political
speech. The prima facie evidence provision in
this statute blurs the line between these two
meanings of a burning cross. As interpreted by
the jury instruction, the provision chills
constitutionally protected political speech
because of the possibility that a State will
prosecute − and potentially convict − somebody
engaging only in lawful political speech at the
core of what the First Amendment is designed to
protect.

538 U.S. at 365 (citations omitted). The plurality opinion in

Virginia v. Black properly noted that we "had the opportunity

to expressly disavow the jury instruction." 538 U.S. at 364.

We did not disavow it then and we do not accept the invitation

to do so now. Accordingly, we affirm our prior holding that

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the prima facie evidence provision of Code § 18.2-423 is

overbroad.

B. Severability of the Prima
Facie Evidence Provision

Elliott and O'Mara have argued that the unconstitutional

prima facie evidence provision cannot be severed from the

remainder of the statute and that, even if it is otherwise

possible to sever the prima facie evidence provision, the

procedural history of these cases prevents us from severing

the provision on remand. We reject both arguments.

1. Severability

Code § 1-17.1, first enacted in 1986, provides that

"[t]he provisions of all statutes are severable unless (i) the

statute specifically provides that its provisions are not

severable; or (ii) it is apparent that two or more statutes or

provisions must operate in accord with one another." Prior to

the enactment of this statute, "[a]bsent a severability

provision, a legislative act [was] presumed to be non-

severable." Board of Sup. of James City County v. Rowe, 216

Va. 128, 147, 216 S.E.2d 199, 214 (1975). Code § 1-17.1

changed that rule and provided a rule of construction for the

courts to apply to interpret even statutes passed prior to

1986. If the General Assembly intended for § 1-17.1 to apply

only to statutes passed after 1986, it could have included

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such language in the section. Instead, the statute refers

broadly to "[t]he provisions of statutes in this Code,"

without reference to dates of enactment.

Code § 18.2-423 does not fall within either of the

exceptions to the rule of severability established in § 1-

17.1. The cross burning statute does not contain language

stating that its parts are not severable, nor is the prima

facie evidence provision necessary to the operation of the

remainder of the statute. The fact that the provision is not

inextricably intertwined with the rest of the statute is

illustrated by the fact that the cross burning statute, now

codified at § 18.2-423, existed for 16 years, from 1952 to

1968, without the prima facie evidence provision. See Code

§ 18.1-365 (Supp. 1968). The statute was and can be effective

now in punishing intimidation without the prima facie evidence

provision. Therefore, we hold that the prima facie evidence

provision is severable.

2. Waiver of Severability

Elliott and O'Mara argue in this proceeding that the

Commonwealth waived the issue of severability by failing to

raise it prior to the appeal to the United States Supreme

Court. We disagree.

First, it would be incongruous to place the burden of

raising severability on the Commonwealth in this case when

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neither Elliott nor O'Mara relied specifically on the

unconstitutionality of the prima facie evidence provision

prior to the Commonwealth's appeal to the United States

Supreme Court. The Commonwealth properly responded to the

arguments raised by Elliott and O'Mara in their briefs to this

Court, which revolved around the unconstitutionality of

banning cross burning as a general matter.

A more elemental flaw in the waiver argument advanced by

Elliott and O'Mara is that it presumes that severability is an

issue that must be raised by one of the parties.

Severability, as codified in § 1-17.1, is a rule for judicial

construction of statutes. As such, the possibility of

severance cannot be waived by a party to a suit by failure to

raise it. Rather, it is the duty of the Court, faced with a

constitutional challenge to a statute, to consider sua sponte

whether an invalid portion of a statute may be severed to

permit the continued operation of the constitutional portion

of the statute. The Court cannot be forced to accept a flawed

construction of a statute or prevented from saving a statute

from invalidity simply because of an oversight or tactical

decision by one or both of the parties. For these reasons, we

hold that the prima facie evidence provision of Code § 18.2-

423 is severable from the remainder of the statute.

C. Application of the Brandenburg Standard

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 Because we held that Code § 18.2-423 was unconstitutional

for other reasons in Black v. Commonwealth, we found it

unnecessary to address challenges to the constitutionality of

the statute based upon Brandenburg v. Ohio, 395 U.S. 444,

(1969). Nonetheless, the parties addressed Brandenburg issues

before the United States Supreme Court. The plurality opinion

of the United States Supreme Court is silent concerning

Brandenburg; however, the language of the opinion precludes

any consideration of Brandenburg on remand.

The oft-cited case of Brandenburg v. Ohio involved a Ku

Klux Klan rally not unlike the facts presented in Black's

case. The United States Supreme Court held that

the constitutional guarantees of free speech
and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of
law violation except where such advocacy is
directed to inciting or producing imminent
lawless action and is likely to incite or
produce such action.

395 U.S. at 447.

Elliott and O'Mara argue that because we chose not to

address Brandenburg challenges in Black v. Commonwealth and

the United States Supreme Court plurality opinion in Virginia

v. Black is silent concerning Brandenburg, that we should

consider such a challenge on remand. We disagree.

Clearly, Brandenburg addresses First Amendment concerns.

Equally clearly, the United States Supreme Court plurality

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opinion in Virginia v. Black held that "[a] ban on cross

burning carried out with the intent to intimidate is fully

consistent with our holding in R.A.V. and is proscribable

under the First Amendment." 538 U.S. at 363. With the

Brandenburg issues before the Supreme Court of the United

States, it is inconceivable that the Court could make such a

clear statement about cross burning with the intent to

intimidate being "proscribable under the First Amendment" if

it had any concerns about failure to meet the Brandenburg

tests.

D. Constitutionality of § 18.2-423
under the Virginia Constitution

In Black v. Commonwealth, 262 Va. at 778 n.10, 553 S.E.2d

at 746 n.10, we declined to address claims that Code § 18.2-

423 violates Article I, § 12 of the Constitution of Virginia.

On remand, quoting Robert v. City of Norfolk, 188 Va. 413,

420, 49 S.E.2d 697, 700 (1948), Elliott and O'Mara argue that

the "Constitution of Virginia is broader than that of the

United States in providing that − 'any citizen may freely

speak, write and publish his sentiments on all subjects.' "

Elliott and O'Mara accurately recite the statement from

Robert; however, it is dictum. We take this opportunity to

declare that Article I, § 12 of the Constitution of Virginia

is coextensive with the free speech provisions of the federal

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First Amendment. Consequently, consistent with the plurality

opinion of the United States Supreme Court in Virginia v.

Black, we hold that, after severance of the provision

concerning prima facie evidence of intent, Code § 18.2-423

does not violate the First Amendment or Article I, § 12 of the

Constitution of Virginia.

E. Disposition of Elliott and O'Mara's Convictions

In the trial court, Elliott was tried by a jury; however,

no jury instruction involving the prima facie evidence

provision was given. In the trial court, O'Mara pled guilty,

reserving his right to challenge the constitutionality of Code

§ 18.2-423 on appeal. In its remand, the Supreme Court of the

United States "[left] open the possibility that . . . Elliott

and O'Mara could be retried under § 18.2-423." 538 U.S. at

367. Elliott and O'Mara argue that retrial would violate the

Double Jeopardy Clause of the Fifth Amendment. It is not

necessary to address their concerns regarding retrial because

we hold that retrial is not required under the procedural

postures of these cases.

Elliott was convicted by a jury that did not receive an

instruction regarding the prima facie evidence provisions. He

was convicted by the jury as if the provision was not in the

statute. He cannot be heard to complain about the

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unconstitutionality of a provision of the statute, found

severable, that played no part in his trial.

O'Mara's plea agreement in the trial court recites in

part:

Pursuant to Section 19.2-254 of the Code of
Virginia, the Commonwealth consents to allowing
the defendant to plead guilty to both charges,
conditioned upon the reservation of right to
appeal the ruling . . . regarding the
constitutionality of Section 18.2-423 of the
Code of Virginia. If the defendant prevails at
the conclusion of the appeal process, he shall
be allowed to withdraw his plea.

Additionally, a written Stipulation of Facts was signed by

O'Mara, his counsel, and the attorney for the Commonwealth

that stated:

On May 2, 1998, David Targee had approximately
fifteen individuals, including Jonathan O'Mara
and Richard Elliott, at his residence in
Virginia Beach. They were all consuming
alcohol. Elliott complained to Targee and
O'Mara about his neighbor and about how he
wanted to "get back" at him. It was suggested
(not by O'Mara) that they burn a cross in
Elliott's neighbor's yard. O'Mara and Targee
agreed, and they all went to Targee's garage
where a cross was built. They all got in
Targee's truck and drove to Munden Point Road
in Virginia Beach. Targee was driving, with
O'Mara in the front passenger seat and Elliott
in the back seat. Once there, Elliott handed
the cross to O'Mara, who also grabbed a can of
lighter fluid and went outside and placed the
cross in the yard of Elliott's neighbor. He
then poured lighter fluid on the cross, set it
on fire, and ran back to the car. Targee drove
them back to his house. The next morning,
Elliott's neighbor, James Jubilee, came out of
his house and observed the partially burned

14
 cross in his yard. He broke the cross and
placed [it] in the garage. He later called the
police.

Lastly, on the form entitled "Questions Asked the Defendant

Before the Court Accepts a Plea of Guilty," O'Mara answered

"yes" to the written question, "Are you entering the plea of

guilty because you are, in fact, guilty of the crime(s)

charged?"

On appeal to this Court from the trial court, O'Mara

never argued that the prima facie evidence provision of the

statute rendered the statute unconstitutional. His claim of

unconstitutionality was based upon arguments related to the

R.A.V. case and the Brandenburg case. The prima facie

evidence provision clearly played no part in his plea

agreement and no part in his appeal to this Court. O'Mara has

waived any claim of error based upon the unconstitutionality

of the prima facie evidence provision. Rule 5:25.

Finally, in our order of August 29, 2003, we directed the

parties to address certain issues on remand from the United

States Supreme Court. One of those issues concerning the

prima facie evidence provision was:

If the final sentence is not amenable to an
interpretation that would render it
constitutional, but it is severable, could
Richard J. Elliott and/or Jonathan O'Mara be
retried under § 18.2-423? More specifically,
should the Court order (a) that Elliott's
and/or O'Mara's convictions stand with no right

15
 to retrial, (b) that Elliott's and/or O'Mara's
convictions are vacated, but the Commonwealth
may retry either or both appellants, or (c)
that Elliott and/or O'Mara's convictions are
vacated, but the Commonwealth may not retry
either or both defendants?

In response, O'Mara only argued that his conviction should be

vacated and that he should not be retried. We note that

O'Mara does not assert that he has the right to withdraw his

guilty plea. Further, we note that O'Mara has not prevailed

on any issue he raised on appeal.

III. Conclusion

For the reasons discussed above, we hold that the prima

facie evidence provision of Code § 18.2-423 is

unconstitutionally overbroad under the First Amendment and

Article I, § 12 of the Constitution of Virginia. We hold that

the statute is severable and that the core provisions of the

statute that remain do not violate the First Amendment or

Article I, § 12 of the Constitution of Virginia. There is no

need to order retrials; consequently, the convictions of

Richard J. Elliott and Jonathan S. O'Mara will be affirmed.

Affirmed.

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