Wright v. Virginia Brief in Opposition to Petition for Writ of Certiorari

    In The

Supreme Court of the United States
October Term, 1972

No. 72-1632

STEVEN W ISE W R IG H T and  
CLARENCE ED W ARD  W RIG H T, JR.,

Petitioners,

v.

VIRGINIA,
Respondent.

BRIEF IN  O PPO SITIO N  T O  P E TITIO N  FOR  
W R IT  OF C ER TIO R AR I

A ndrew P. M iller
Attorney General of Virginia

Gilbert W. H aith 
Assistant Attorney General

Supreme Court Building 
Richmond, Virginia 23219



Page

Q uestion s  P r e s e n t e d ............................... -.....................-........-......... - ........ 1

S t a t e m e n t  O f T h e  C a s e .............................................................................  2

L a w  A nd A rg u m e n t

1. Was The Conviction Of The Defendants Constitutionally
Invalid On The Basis That It Was Obtained Pursuant To 
An Unconstitutional Statute Or On The Basis That There 
Was A  Total Lack Of Evidence Of Violation Of That 
Statute?........................................................................................  2

2. Were The Convictions Of Steven Wright For Resisting
Arrest And Clarence Wright For Assault And Battery 
And Resisting Arrest Also Invalid On The Grounds That 
All Of Their Actions Occurred Solely Because Of An 
Illegal Arrest Of Steven W righ t?..........................................  6

C on clu sion  .......................................................................................... -  7

C ertific ate  O f  S ervice ...............................................  7

TABLE OF CITATIONS 

Cases

Ashton v. Kentucky, 384 U.S. 195, 16 L.Ed.2d 469, 86 S.Ct.
1407 (1966) ................................................................................2, 4, 5

Bachellar v. Maryland, 397 U.S. 564, 25 L.Ed.2d 570, 90 S.Ct.
1312 (1970) ......................-..............................................................  5

Banks v. Bradley, 192 Va. 598, 66 S.E.2d 526 (1951) .................... 6

Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213 (1940) .... 5

Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L.Ed. 1031, 62
S.Ct. 766 (1942) ...........................................................................

TABLE OF CONTENTS

3



Page

Colten v. Kentucky, 407 U.S. 104, 32 L.Ed.2d 584, 92 S.Ct.
1953 (1972) ............................... ......................................................  5

Gooding v. Wilson, 405 U.S. 518, 31 L.Ed.2d 408, 92 S.Ct. 
1103 (1972) ........................................................................................................................................................................ . . . . . 3,  4

Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947) .. 3

Parker v. McCoy, 212 Va. 808, 812, 188 S.E.2d 222 (1972) .......  4

Taylor v. Commonwealth, 187 Va. 214, 46 S.E.2d 384 (1948) .... 4

Thompson v. Louisville, 362 U.S. 199, 4 L.Ed,2d 654, 80 S.Ct.
624 (1960) ......................................................................................5, 6

Statute

Section 18.1-253.2, Code of Virginia (1950), as amended.............. 3



In The

Supreme Court of the United States
October Term, 1972

No. 72-1632

STEVEN W ISE  W R IG H T and 
CLARENCE ED W A RD  W RIG H T, JR ,

Petitioners,
v.

VIRGIN IA,
Respondent.

BRIEF IN  O PPO SITIO N  T O  P E T IT IO N  FO R  
W R IT  OF C ER TIO R AR I

To the Honorable Chief Justice and Associate Justices of 
the Supreme Court o f the United States:

The respondent, the Commonwealth, of Virginia, respect­
fully submits the following brief in opposition to the 
granting of a writ of certiorari in the above matter. The 
parties will be referred to herein by their respective posi­
tions in the trial court, i.e, defendants Steven Wise Wright 
and Clarence Edward Wright, Jr, and Commonwealth.

Q U E STIO N S PRESENTED

The questions presented are set out in the brief o f the 
defendants.



2

S T A T E M E N T  OF TH E  CASE

Defendants’ statement of the case and statement of facts 
is substantially correct and is hereby adopted. In addition 
thereto, the Commonwealth directs the Court’s attention to 
the testimony of Deputy Sheriff Guthrie appearing at pages 
3-5 of the transcript of defendants’ trial, particularly with 
reference to said witness’s description o f the actions of the 
defendant Steven Wright, inasmuch as it is this description 
of said actions that shows the conduct of Steven Wright 
which was the basis for his conviction of disorderly conduct.

L A W  AN D  A R G U M E N T

1. Was The Conviction O f The Defendants Constitutionally Invalid 
On The Basis That It Was Obtained Pursuant T o An Unconsti­
tutional Statute Or On The Basis That There Was A  Total Lack 
O f Evidence O f Violation O f That Statute ?

The defendants rely upon a number of decisions of this 
Court holding various state criminal statutes unconstitu­
tional as being either vague or overbroad. The Common­
wealth submits that this reliance is misplaced in that said 
decisions are clearly distinguishable both factually and 
legally from the instant case. All o f those decisions involve 
statutes or ordinances which had the potential of unconsti­
tutionally abridging freedom of speech so as to cut off the 
opportunity for public debate, protest, and discussion, and 
the convictions were of a general nature thereby raising 
the possibility that the convictions were for a proper exer­
cise of the defendant’s freedom of speech.

For instance, Ashton v. Kentucky, 384 U.S. 195, 16 
L.Ed.2d 469, 86 S.Ct. 1407 (1966) is distinguishable be­
cause it involved a criminal libel statute which included the 
language “ any writing calculated to create disturbances 
of the peace,” and because the trial court instructed the



3

jury on the terms of the statute without limitation, thereby 
allowing the possibility that the conviction was based on 
unconstitutional grounds. It involved the possibility o f a 
conviction for breach of the peace where the offense was 
imprecisely defined and involved an intrusion on the de­
fendant’s First Amendment rights. By the same token, 
Gooding v. Wilson, 405 U.S. 518, 31 L.Ed.2d 408, 92 
S.Ct. 1103 (1972) involved a statute which punished only 
spoken words, thereby bringing about an obvious incursion 
on First Amendment rights, unless the state courts had 
supplied a requisite construction narrowly and precisely de­
fining the prohibitions of the statute so as not to violate 
freedom of speech, and in Gooding the state courts had 
not provided such construction.

However, this Court has recognized that when the state 
courts have provided such a construction of a state statute, 
that construction will be binding on the United States 
Supreme Court. Gooding v. Wilson, supra; Chaplinsky v. 
Mew Hampshire, 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 
766 (1942).

Contrary to the assertion of the defendants, the Com­
monwealth submits that the courts of this state have in 
fact defined what is meant by the provision in § 18.1-253.2 
of the Code of Virginia (1950), as amended, prohibiting 
persons to behave in a “ riotous or disorderly manner”  in 
any public place. In Hackney v. Commonwealth, 186 Va. 
888, 45 S.E.2d 241 (1947), the Virginia Supreme Court 
cites the “usual definition” of disorderly conduct as “ all such 
acts and conduct as are of a nature to corrupt the public 
morals or to outrage the sense of public decency, whether 
committed by words or acts.” The Virginia Supreme Court 
further stated that “ the dominant purpose of its enactment 
was to preserve peace and good order” ; and a person 
violates the statute if “ his conduct is such as tends to



4

corrupt public morals or to outrage the sense of decency 
of others . . . who may be within sight or hearing of the 
perpetrator.” See also Parker v. McCoy, 212 Va. 808, 812, 
188 S.E.2d 222 (1972). In Taylor v. Commonwealth, 187 
Va. 214, 46 S.E.2d 384 (1948), the Virginia Supreme 
Court, while not specifically defining disorderly conduct, did 
refer generally to the types of activity that the defendant 
in Taylor did not participate in so as to overturn her con­
viction for disorderly conduct. Those types of activity 
which the Court stated would be disorderly conduct were 
as follows: “ She had not disturbed any person or persons, 
or caused any commotion affecting, in any degree, the 
peace and good order of the bus. Neither her words nor her 
acts has a vicious or injurious tendency, offensive to good 
morals or public decency . . . .  She was guilty of no definite 
misbehavior or misconduct in the sense that she was dis­
orderly or turbulent.”

In no way does a prohibition on that type of activity 
bring about a broad incursion on freedom of speech such 
as was the case with the statutes in Gooding and Ashton 
referred to above. Furthermore, the conduct of the de­
fendant Steven Wright could by no stretch of the imagina­
tion be construed as conduct intending to exercise some 
asserted freedom of speech. While the defendant Steven 
Wright may have used spoken words as well as conduct in 
his attempts to interfere with Deputy Sheriff Guthrie, his 
speech was simply speech designed to argue and overcome 
the speech of Deputy Sheriff Guthrie and Mr. Kessler, the 
owner of the establishment. It was not the speech or the 
words of the defendant Steven Wright which were im­
portant in his conviction of disorderly conduct, but it was 
the manner in which he attempted to insert his speech and 
the manner in which he used physical conduct to overcome 
a discussion between two other persons and to disrupt the



5

normal duties of a law enforcement officer. The trial court 
went to great lengths to specify in detail the basis for his 
finding and conviction of disorderly conduct, and the find­
ings of the trial court were quite consistent with the 
definition of disorderly conduct previously given by the 
Virginia Supreme Court. This again was in no sense a 
general verdict under a broad reaching statute and in no 
sense left open for doubt the grounds or basis for the 
conviction, as was the case in Ashton, supra, and Cantwell 
v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213 (1940) relied 
upon by the defendants in their brief.

This Court has held that it is constitutionally permissible 
to rest a conviction for disorderly conduct on a finding that 
the defendant refused to obey police commands to stop 
obstructing the sidewalk so as to block traffic along it. 
Bachellar v. Maryland, 397 U.S. 564, 25 L.Ed.2d 570, 90 
S.Ct. 1312 (1970). The facts of the instant case are very 
similar to the facts in Colten v. Kentucky, 407 U.S. 104, 
32 L.Ed.2d 584, 92 S.Ct. 1953 (1972), and just as in 
Colten, the defendant in the instant case at the time of his 
arrest was not undertaking to exercise any constitutionally 
protected freedom. Rather, he appeared to have had no 
purpose other than to cause inconvenience and annoyance 
and disturbance to the Deputy Sheriff in question. There­
fore, the statute as applied to the defendant herein did not 
chill or stifle the exercise of any constitutional right.

The Commonwealth also submits that the defendants’ re­
liance on Thompson v. Louisville, 362 U.S. 199, 4 L.Ed.2d 
654, 80 S.Ct. 624 (1960) is misplaced. In Thompson, the 
conviction of a man who had been found guilty of loitering 
and disorderly conduct was reversed on the grounds that 
his conviction was totally lacking in evidentiary support. 
The proposition for which that case stands is simple and 
clear. It has nothing to do with concepts relating to the



6

weight or sufficiency of the evidence in any particular case. 
It goes rather to the question of whether a defendant’s con­
viction rests upon any evidence at all. The only evidence in 
Thompson was that the defendant was “argumentative” 
with the arresting officer as to why he was being arrested. 
As can be seen from reading the testimony o f Deputy 
Sheriff Guthrie, as well as from reading the opinion of the 
trial court, the defendant Steven Wright in the instant 
case certainly was more than simply argumentative with 
the arresting officer, and certainly there was enough evi­
dence on which to rest the conviction so as to at the most 
bring about a question of sufficiency of the evidence and 
not a question of the total lack of any evidence at all.

2. Were The Convictions O f Steven Wrigth For Resisting Arrest And
Clarence Wright For Assault And Battery And Resisting Arrest
Also Invalid On The Grounds That All O f Their Actions Occurred
Solely Because O f An Illegal Arrest O f Steven Wright?

The Commonwealth submits that the arrest of Steven 
Wright under the circumstances was proper and valid and 
therefore, the actions of Steven Wright and Clarence 
Wright in order to resist and prevent that arrest were 
clearly unlawful, and those convictions are valid and proper. 
The proposition set forth by the defendants in their brief 
in citing Banks v. Bradley, 192 Va. 598, 66 S.E.2d 526 
(1951) has no applicability where the arrest was proper 
since they refer only to the extent of the right to resist an 
unlawful arrest. Even for the sake of argument, if  the 
arrest of Steven Wright was illegal, the actions of Clarence 
Wright in jumping upon the back of one of the arresting 
officers and physically attacking him was certainly not 
justified, and therefore, his conviction for assault and 
battery was proper under any circumstances.



7

C O N C L U SIO N

For the foregoing reasons, the Commonwealth submits 
that the petition for a writ of certiorari should be denied.

Respectfully submitted,

A ndrew P. M iller
Attorney General of Virginia

Gilbert W. H aith  
Assistant Attorney General

Supreme Court Building 
Richmond, Virginia 23219

C ER TIFICA TE  OF SERVICE

I hereby certify that on or before the 10th day of Sep­
tember, 1973, I mailed three copies of the foregoing Brief 
in Opposition to Petition for Writ o f Certiorari to Samuel 
W. Tucker, Esquire, Hill, Tucker & Marsh, 214 East Clay 
Street, Richmond, Virginia 23219, counsel for petitioners.

Gilbert W. H aith  
Assistant Attorney General



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SUPREME COURT OF THE UNITED STATES 

OFFICE OF THE CLERK 

WASHINGTON, D. C. 2 0 543

OCT 3 1373
Samuel W. T ucker, Esq.
H i l l ,  Tucker and Marsh 
214 East C lay St.
Richmond, Va . 23219

RE: Steven W ise W right and C laren ce
Edward W right, J r . v .  VIRGINIA, 
72=*1632 ________ _

Dear S ir :

The Court today den ied  the p e t i t i o n  for 

a w r it  o f  c e r t i o r a r i  in  the a b o v e -e n t it le d  ca s e .

Very t r u ly  y o u rs ,

MICHAEL KODAK, J R ., C lerk

By ____.
___j  y, ^

Helen T a y lo r  (M rs.)  
A s s is ta n t  C lerk

/  James E. K u lp , Esq.
Assistant Attorney General of Virginia
911 East B ro a d e st .
Richmond, Va. 2.3219