Patrick J. Mannix, s/k/a Patrick J. Mannix,Sr.v CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
PATRICK J. MANNIX, S/K/A
PATRICK J. MANNIX, SR.
OPINION BY
v. Record Nos. 2797-98-3 and JUDGE SAM W. COLEMAN III
2798-98-3 JANUARY 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Nicholas E. Persin, Judge Designate
Randall B. Campbell for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Patrick J. Mannix was convicted in a jury trial of
disorderly conduct, in violation of Code § 18.2-415(A), and
obstruction of justice, in violation of Code § 18.2-460. On
appeal, Mannix argues (1) the trial court erred in refusing to
instruct the jury that a person has a right to resist an
unlawful ejection from a public meeting, (2) the trial court
erred in limiting his cross-examination regarding the Washington
County Board of Supervisors Chairman's knowledge of
parliamentary procedures for limiting or terminating a citizen's
comments during a public meeting, and (3) the evidence is
insufficient to support his convictions. For the following
reasons, we affirm the convictions.
I. BACKGROUND
The Washington County Board of Supervisors conducted a
public hearing to solicit comments from citizens regarding an
annexation agreement with the City of Bristol. Patrick J.
Mannix requested to speak during the "citizens' comments"
portion of the meeting. Mannix took the podium and began
questioning the county attorney regarding the legality of the
notice and advertising for the meeting. After Mannix posed
several argumentative questions, the board's chairman instructed
Mannix to confine his remarks to the annexation agreement.
Instead of complying with the purpose of the meeting, Mannix
became argumentative and accusatory with the chairman. The
chairman ruled Mannix "out of order" and directed him to take
his seat.
After Mannix ignored the chairman's repeated orders to be
seated, the chairman instructed two uniformed deputies from the
Washington County Sheriff's Department to remove Mannix from the
meeting. Mannix was informed that he was not under arrest, but
that he was "out of order" and was being ejected from the
meeting. Mannix refused to leave, stating repeatedly that if he
was not under arrest, he would not leave. The deputies forcibly
removed Mannix from the room. The deputies had difficulty
restraining Mannix, who was struggling and resisting their
attempt to remove him from the room. Mannix was arrested for
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disorderly conduct and obstruction of justice. Both deputies
testified that they sustained minor injuries.
II. ANALYSIS
A. Jury Instruction
Mannix argues that the trial court erred in refusing to
instruct the jury that if he was being unlawfully ejected from
the public meeting, he was entitled to use reasonable force in
resisting the unlawful ejection. Mannix's proffered instruction
stated, "[i]f you find that the Defendant used reasonable force
to resist his unlawful ejection from a public meeting, then you
will find the defendant not guilty of the offense of Obstruction
of Justice." The trial court refused the instruction, stating
that the instruction improperly assumed and informed the jury
that the ejection from the meeting was unlawful. Mannix neither
objected to the court's explanation nor offered an amended
instruction.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). The trial court did not err by
ruling that the proffered jury instruction was an incorrect
statement of law because it presupposed that Mannix's ejection
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from the meeting was unlawful. The trial court did not err in
refusing to give an instruction that contained an erroneous
statement of the law. See Woodard v. Commonwealth, 19 Va. App.
24, 28-29, 448 S.E.2d 328, 330-31 (1994). Furthermore, "[t]he
court is not required to give an instruction sua sponte." Manetta
v. Commonwealth, 231 Va. 123, 127-28 n.2, 340 S.E.2d 828, 830 n.2
(1986). Although it may be reversible error for a trial court to
fail to properly instruct the jury on the basic elements of the
charged criminal offense, see Campbell v. Commonwealth, 14 Va.
App. 988, 992, 421 S.E.2d 652, 654-55 (1992) (en banc), aff'd in
part, 246 Va. 174, 431 S.E.2d 648 (1993), the trial court has no
duty sua sponte to correct or re-write a party's erroneous
instruction which does not address the elements of the offense,
the burden of proof, or the presumption of innocence. See Whaley
v. Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973).
B. Evidentiary Issue
Mannix next argues that the trial court erred in refusing
to permit defense counsel to question the board chairman
regarding his familiarity with parliamentary procedures under
Robert's Rules of Order to limit or terminate debate on an
issue. He argues that the question was relevant because it
related to the "legality" of the chairman's conduct, his ruling
that Mannix was out of order, and whether Mannix had the right
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to resist ejection. Mannix also argues that the evidence was
probative of his "state of mind."
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Brown v.
Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117 (1996)
(quoting Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d
407, 409 (1994)). "Evidence which tends to cast any light upon
the subject of the inquiry is relevant." Cash v. Commonwealth,
5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988). "Relevant
evidence which has the tendency to add force and effect to a
party's defense is admissible, unless excluded by a specific rule
or policy consideration." Evans v. Commonwealth, 14 Va. App. 118,
122, 415 S.E.2d 851, 853-54 (1992).
Assuming the chairman failed to adhere to an acceptable or
an applicable set of rules of procedure, Mannix was not entitled
to be disorderly and to disrupt the meeting from proceeding in
an orderly fashion. Thus, the chairman's knowledge of the rules
of parliamentary procedure was not relevant to whether Mannix
was lawfully ejected from the meeting. Regardless of the board
chairman's adherence to acceptable parliamentary procedures,
when Mannix insisted on speaking to issues other than those for
which the public hearing was called, and in interrogating the
county attorney, the board chairman had the right to rule him
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out of order, direct that he be seated, and have him forcibly
ejected when he resisted and refused to desist. See City of
Madison Joint School Dist. No. 8 v. Wisconsin Employment
Relations Comm'n, 429 U.S. 167, 175 n.8 (1976) (recognizing that
a governing body may confine a public meeting to a specified
subject matter); see also Scroggins v. City of Topeka, Kansas,
2 F. Supp. 2d 1362, 1372-73 (D.C. Kan. 1998) (collecting cases).
Accordingly, Mannix's forcible ejection from the meeting under
the circumstances was not illegal, and the chairman's knowledge
of parliamentary procedure could not affect that holding.
C. Sufficiency
On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all reasonable
inferences fairly deducible therefrom. See Commonwealth v.
Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). We review
the evidence that tends to support and uphold the conviction,
and we will affirm the conviction unless it is plainly wrong or
lacks evidentiary support. See id. at 520, 499 S.E.2d at 265.
Intent may be shown by the circumstances, including a
person's conduct and statements. See Nobles v. Commonwealth, 218
Va. 548, 551, 238 S.E.2d 808, 810 (1977); Hancock v. Commonwealth,
12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). "[T]he
reasonable inferences to be drawn from proven facts are within the
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province of the trier of fact." Fleming v. Commonwealth, 13 Va.
App. 349, 353, 412 S.E.2d 180, 183 (1991). A fact finder may
generally infer, moreover, that a person intends his deliberate
acts. See id.
1. Disorderly Conduct
Mannix argues that the evidence was insufficient to support
his conviction for disorderly conduct. He argues, citing Ford
v. City of Newport News, 23 Va. App. 137, 474 S.E.2d 848 (1996),
that neither his verbal exchanges with the county attorney and
the board chairman, no matter how inappropriate, nor his refusal
to leave the podium and be seated rise to the level of
disorderly conduct. Furthermore, he argues that the
Commonwealth failed to prove that he had the specific intent
required under the statute to support the conviction.
Section 18.2-415 provides that: 1
[a] person is guilty of disorderly conduct
if, with the intent to cause public
inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he:
1
Section 18.2-415(B) provides that a person who
"[w]illfully . . . disrupts a meeting of the governing body of
any political subdivision of this Commonwealth or a division or
agency thereof . . ." shall be guilty of disorderly conduct if
the disruption "(i) prevents or interferes with the orderly
conduct of the meeting . . . ." Although Mannix's conduct
appears to fit squarely within this provision, the jury was not
instructed on this subsection. Therefore, the applicability of
that provision is not before us.
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A. In any . . . public building, . . .
or public place engages in conduct having a
direct tendency to cause acts of violence by
the person or persons at whom, individually,
such conduct is directed[.]
Mannix's reliance on Ford is misplaced. In Ford, police
officers were patrolling an area known for drug activity and
prostitution. The officers approached the defendant, who was
pushing a bicycle in a small park. When one of the officers asked
the defendant to approach him, the defendant became "loud, angry,
and uncooperative." The defendant used offensive language and
threw his arms into the air. The defendant was arrested for
disorderly conduct. On appeal, we reversed the defendant's
conviction for disorderly conduct, finding that the officer had no
reason to believe the defendant's conduct, no matter how offensive
or rude, would provoke a violent response from the person or
persons at whom the conduct was directed. See 23 Va. App. at 144,
474 S.E.2d at 851. Further, we found in Ford no evidence to
support a reasonable belief that the defendant's conduct would
cause a reasonable officer to respond with physical force. See
id. Rather, the officers, who had no reason to suspect him of
criminal activity, could simply have walked away from the
defendant when he was unwilling to talk with them and continued
their investigative patrol.
Here, however, the evidence viewed in the light most
favorable to the Commonwealth proves that Mannix disregarded the
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board chairman's instructions to refrain from questioning the
county attorney and to confine his comments to the annexation
agreement. After being warned numerous times, Mannix persisted
in the inappropriate questioning. The board chairman declared
Mannix out of order and instructed him repeatedly to take his
seat. The board chairman could not disregard Mannix's conduct.
The fact finder could infer from Mannix's refusal to leave the
podium when instructed to do so by the presiding officer that he
intended to cause a public inconvenience or annoyance at the
hearing. The meeting had been disrupted. The chairman was
unable to solicit comments from other citizens while Mannix
remained at the podium. In order to proceed with business, the
board chairman deemed it necessary to have Mannix forcibly
removed from the meeting. The fact finder could infer from
these circumstances that Mannix was aware his conduct would
cause the presiding officer to respond with physical force. The
board chairman declared Mannix out of order, directed the
deputies to come forward, and advised Mannix that if he did not
take his seat he would be forcibly removed from the premises.
Unlike the police officer in Ford, the board chairman could not
disregard Mannix's conduct and continue the meeting with Mannix
remaining at the podium. He had to be removed. Under these
circumstances, the evidence was sufficient to support Mannix's
conviction for disorderly conduct.
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2. Obstruction of Justice
Mannix, relying on Brown v. Commonwealth, 27 Va. App. 111,
497 S.E.2d 527 (1998), argues that the evidence was insufficient
to support his conviction for obstruction of justice because he
was legally permitted to use reasonable force to resist the
unlawful ejection. By analogy, Mannix argues that if one is
permitted to use reasonable force to resist an unlawful arrest,
one is also permitted to use reasonable force to resist an
unlawful ejection from a public meeting.
Assuming, without deciding, that a similar principle to
that articulated in Brown applies to an unlawful ejection from a
public meeting, Mannix failed to show that he was unlawfully
ejected from the meeting. Nothing in the record indicates that
the board chairman acted outside of his authority in limiting
and subsequently terminating Mannix's comments. Although
citizens may be given the privilege to speak during a public
meeting, the right to do so is not unlimited. Rather, the
chairman of a public meeting has a legitimate interest in
conducting the meeting in an orderly and effective manner.
Furthermore, the board chairman's knowledge or lack of knowledge
of parliamentary procedure was not relevant to whether Mannix's
ejection was lawful. Regardless of the chairman's knowledge of
parliamentary procedure, the board chairman had the right to
have Mannix forcibly removed from the public hearing when he
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refused to address the call of the meeting and refused to be
seated after his time elapsed. Accordingly, the evidence is
sufficient to support the conviction for obstruction of justice.
In summary, we find that the trial court did not err in
refusing to give Mannix's proffered jury instruction and in
limiting his examination of the board chairman and that the
evidence was sufficient to support the convictions. We,
therefore, affirm.
Affirmed.
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