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
8
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
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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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