Lead Opinion
The Daily Press, Inc. and Ashley Kelly (collectively “appellants”) appeal from an order of the Circuit Court of the City of Newport News (“trial court”) directing the Commonwealth and defense counsel in the case of Commonwealth of Virginia v. Lillian Callender (Nos. CR10-01420, CR10-01421, and CR10-01422) [hereinafter Callender ] to remove original photographs and an autopsy report, admitted into evidence during the Callender trial, from the public court file in that case, and placing photocopies of the exhibits that were retained in the court file under seal. Appellants assert the trial court failed to make the required findings under Press-Enterprise Co. v. Superior Court,
I. BACKGROUND
On August 9, 2010, a grand jury in the City of Newport News indicted Lillian Callender and Michael Stoffa for felony child neglect of Callender’s seventeen-month-old and twenty-seven-month-old daughters, in violation of Code § 18.2-371.1(A), and for second-degree murder of Callender’s seventeen-month-old daughter, in violation of Code § 18.2-33. Following a bench trial on January 24, 2011, the trial court convicted Callender of second-degree murder of her seventeen-month-old daughter and felony child neglect of both
In March 2011, Kelly, a reporter for The Daily Press, Inc., requested permission from the clerk of the trial court to review the public court file related to Callender’s trial. The clerk denied appellants’ request. On March 28, 2011, without notice or hearing,
On April 20, 2011, at a hearing on appellants’ motions, the trial court granted appellants’ motion to intervene in Callender without hearing argument, “finding that [appellants] [are] a proper party to this hearing.” The trial court further “[found] that the [o]rder entered March 28, 2011 was over-broad in sealing the entire file.” After hearing argument
The trial court, over appellants’ objections, ordered the clerk of the court “to secure the withdrawal of the original exhibits [admitted into evidence at Callender’s trial] and to place under seal the photocopies of same to be retained in the Callender file.” It further ordered the clerk of the court to release the original exhibits to the Commonwealth and Callender’s counsel for use at Stoffa’s upcoming trial. It ordered the Commonwealth and Callender’s counsel to return the original exhibits “to the Callender file should an appeal be noted in her case” and, in any event, to return the exhibits to the court file “after the trial of Michael Stoffa has concluded.” Finally, the trial court ordered “that the remainder of [the court] file shall be available for public inspection,” and “[o]ther than the exhibits withdrawn as authorized above, as well as copies thereof secured by the clerk, and other reports customarily deemed confidential and not available for public inspection, the [c]ourt’s [March 28, 2011] [o]rder to seal is rescinded.”
On May 6, 2011, appellants petitioned this Court to issue a writ of mandamus ordering the trial court to vacate its April 22, 2011 order in which it permitted the Commonwealth and Callender’s counsel to withdraw the original trial exhibits from the Callender court file and sealed the photocopies of the exhibits that were retained in that file. We denied appellants’
[t]he trial court had no duty to seal the trial exhibits, and its decision to do so involved an exercise of the court’s discretion. See [Perreault v. The Free Lance-Star,276 Va. 375 , 389,666 S.E.2d 352 , 360 (2008) ]. Accordingly, mandamus does not lie to order the trial court to reverse a decision reached in its discretion.
In re The Daily Press and Ashley Kelly, No. 0924-11-1 (Va.Ct.App. May 24, 2011).
On August 26, 2011, appellants petitioned this Court for appeal from the trial court’s order permitting the removal of the original trial exhibits by the Commonwealth and Callender’s counsel and sealing the photocopies of the exhibits retained in the Callender court file. We granted appellants’ petition for appeal on October 27, 2011. In addition to the two assignments of error raised in appellants’ petition, we ordered additional briefing from the parties addressing (i) whether appellants’ assignments of error were waived under Rule 5A:18 and (ii) whether we had jurisdiction to hear an appeal from the order of the trial court sealing the file in part in this case.
II. ANALYSIS
Jurisdiction
The threshold question presented is whether Code § 17.1-406(A)(i) confers jurisdiction on this Court to hear an appeal from an order of the trial court permitting the Commonwealth and Callender’s counsel to withdraw original trial exhibits from the Callender court file and placing photocopies of the exhibits that were retained in that file under seal. Appellants assert that this Court is the proper venue for their appeal because, as third-party interveners in Callender, they constitute an “aggrieved party” petitioning for appeal from a “final conviction in a circuit court,” pursuant to Code § 17.1-406(A)(i). The Commonwealth contends this Court is not the proper venue for this appeal because appellants merely chai
Code § 17.1-406(A)(i) provides, in pertinent part, that “[a]ny aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of ... a crime, except where a sentence of death has been imposed____”
(i) Interpreting Code § 17.1-I06(A)(i)
When interpreting statutory language that
“is plain and unambiguous, we are bound by the plain meaning of that statutory language. Thus, when the General Assembly has used words that have a plain meaning, courts cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.”
Beck v. Shelton,
The legislature chose to use the words “from a final conviction in a circuit court of ... a crime” in delineating our jurisdiction under Code § 17.1-406(A)(i). (Emphasis added).
Further, in demarcating our appellate jurisdiction under Code § 17.1-406(A)(ii)-(iv), not in issue here, the General Assembly authorized this Court to entertain appeals from, respectively, “any final decision of a circuit court,” “any final order of a circuit court,” and “any final order for declaratory or injunctive relief.” (Emphases added). “When the General Assembly uses different terms in the same act, it is presumed to mean different things.” Campbell v. Commonwealth,
(ii) Supreme Court Precedent
The Supreme Court’s holdings in Commonwealth v. Southerly,
In Green,
Here, as in Southerly,
Consistent with the principles of statutory construction and the rationale articulated by the Supreme Court in Southerly and Green, we conclude that this Court does not have jurisdiction to consider appellants’ appeal from the trial court’s order directing the removal of original exhibits from the Callender court file and placing photocopies of those exhibits under seal. Appellants were not aggrieved by and do not appeal “from a final conviction” in the trial court. Code § 17.1-406(A)(i). The trial court’s order to remove exhibits and place under seal photocopies of those exhibits was not a purely criminal matter falling under the Court’s jurisdiction, pursuant to Code § 17.1-406(A)(i).
Transferred.
Notes
. Code § 17.1-208 provides, in pertinent part:
Except as otherwise provided by law, any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof, except in cases in which it is otherwise specially provided.
. Six months later, following a bench trial on May 26, 2011, the trial court found Stoffa, Callender's co-defendant, guilty of second-degree murder of Callender's seventeen-month-old daughter and felonious child neglect of both Callender's daughters, and sentenced him on August 19, 2011.
. In Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574,
. In isolation, this statement might be read as suggesting that this Court has jurisdiction over appellants' appeal from the trial court's order as one that arises "from [an] action on motions filed and disposed of while the trial court retainfed] jurisdiction over [the Callender ] case.” Southerly,
. Code § 19.2-306(A) provides, in pertinent part, that "[i]n any case in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court.”
. Appellants cite Hertz v. Times-World Corp.,
Appellants assert they adhered to the process endorsed by the Supreme Court in Hertz by intervening in the trial court, thereby making themselves a party to Callender. Appellants contend they constitute an "aggrieved party” who “may present a petition for appeal to” this Court because Callender did not involve "a sentence of death” and the sealing order entered in that case was adverse to their interests as third-party interveners. Code § 17.1-406(A)(i).
The Commonwealth asserts that appellants' reliance on Hertz is misplaced because the Supreme Court never purported to identify which appellate court would have jurisdiction over an appeal of a trial court's sealing order. See Hertz,
We agree with the Commonwealth. Nothing in Hertz, a case decided before Southerly and Green, suggests that an appeal from a circuit court’s sealing order in a noncapital case constitutes a criminal appeal, much less an appeal from a "final conviction ... of ... a crime” over which this Court could exercise appellate jurisdiction pursuant to Code § 17.1-406(A)(i).
. Code § 8.01-677.1 provides, in pertinent part:
[N]o appeal which was otherwise properly and timely filed shall be dismissed for want of jurisdiction solely because it was filed in either the Supreme Court or the Court of Appeals and the appellate court in which it was filed thereafter rules that it should have been filed in the other court. In such event, the appellate court so ruling shall transfer the appeal to the appellate court having appropriate jurisdiction for further proceedings in accordance with the rules of the latter court.
Concurrence Opinion
concurring in part, dissenting in part, and dissenting from the order of transfer.
I concur in the majority’s recitation of the facts in Part I. I also concur in its conclusion in footnote 6 that the decision in Hertz v. Times-World Corp.,
I.
A. JURISDICTION
This Court’s appellate jurisdiction in criminal matters is defined by Code § 17.1-406(A), which provides that “[a]ny aggrieved party may present a petition for appeal to the Court of Appeals from ... any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of death has been imposed.As a general rule, the Supreme Court of Virginia has appellate jurisdiction in civil matters. See § 8.01-670. Interpreting Code § 17.1-406(A), the Supreme Court has explained
it is the nature of the method employed to seek relief from a criminal conviction and the circumstances under which the method is employed that determine whether an appeal is*225 civil or criminal in nature. If the method consists of an appeal from the conviction itself or from action on motions filed and disposed of while the trial court retains jurisdiction over the case, the appeal is criminal in nature.
Southerly,
B. MOOTNESS
Pursuant to the trial court’s order, when Callender noted her appeal, the original exhibits were returned to the case file and the sealing order was lifted. Thus, the Commonwealth contends the appeal is now moot. However, the opportunity for appellants to review those exhibits contemporaneously with Callender’s convictions (and prior to Stoffa’s trial) has passed. See Richmond Newspapers, Inc. v. Commonwealth,
In this Court, Globe challenges that portion of the trial court’s order ... holding] that [the statute at issue] requires, under all circumstances, the exclusion of the press*226 and general public during the testimony of a minor victim in a sex-offense trial. Because the entire order expired with the completion of the rape trial at which the defendant was acquitted, we must consider at the outset whether a live controversy remains. Under Art. Ill, § 2, of the Constitution, our jurisdiction extends only to actual cases or controversies. Nebraska Press Assn. v. Stuart,427 U.S. 539 , 546 [96 S.Ct. 2791 , 2796-97,49 L.Ed.2d 683 ] (1976). “The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ” Ibid., quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. [498] 515 [31 S.Ct. 279 , 282,55 L.Ed. 310 (1911) ].
.... It can reasonably be assumed that Globe, as the publisher of a newspaper serving the Boston metropolitan area, will someday be subjected to another order relying on [the statute’s] mandatory closure rule. See [DePasquale,443 U.S. at 377-78 ,99 S.Ct. at 2904 ]; Richmond Newspapers, Inc. v. Virginia, 448 U.S. [555] 563 [100 S.Ct. 2814 , 2820,65 L.Ed.2d 973 (1980) ] (plurality opinion). And because criminal trials are typically of “short duration,” ibid., such an order will likely “evade review, or at least considered plenary review in this Court.” [Stuart ], supra, at 547 [96 S.Ct. at 2797 ]. We therefore conclude that the controversy before us is not moot within the meaning of Art. III....
Id. at 602-03,
Although the exhibit-sealing issue in the instant case does not involve a mandatory provision like in Globe Newspaper Co., the trial judge here, noting he was “the Chief Judge for
Thus, I would hold the appeal is not moot.
C. CONSTITUTIONALITY OF THE ORDER SEALING THE EVIDENCE
Appellate review of a ruling on a request for closure of a hearing or trial on constitutional grounds is de novo, In re The Charlotte Observer,
The United States Supreme Court’s rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights. The Sixth Amendment “directs, in relevant
The right of the public and press to an open trial may give way to certain other rights, “ ‘such as the defendant’s right to a fair trial,”’ Presley, 558 U.S. at -,
Before a court may exclude the public from any stage of a criminal trial:
“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”
Id. (quoting Waller,
Possible alternatives to closing a criminal proceeding for fear of tainting the jury pool may include changing venue, postponing trial, or sequestering the jury. Stuart,
This case involves the trial court’s sealing of exhibits admitted at trial rather than the closing of the trial itself. Virginia’s appellate courts have held the same principles that apply to determine whether a constitutional right of access exists to
Here, the autopsy report and photos had not yet been offered into evidence in Stoffa’s case because no trial had yet occurred, and nothing in this record indicates whether they had been made available to Stoffa’s counsel via discovery. Stoffa was not a party to the proceedings against Callender, the matter in which appellants intervened and to which the trial court’s sealing order pertained. Nothing in the record indicates Stoffa received formal notice of appellants’ motion opposing the sealing, and neither Stoffa nor his attorney was present at the hearing.
The Court’s consideration is the dissemination and publication of information contained in the original exhibits prior to the introduction of those documents by the Commonwealth [in Stoffa’s subsequent trial, which the trial court believed was scheduled for the next month] ... so as to not violate or prejudice or bias the interest of the Commonwealth or a defendant.
[U]ntil those exhibits are properly introduced against another defendant, there are issues regarding discovery [and] admissibility as to their effectiveness against other defendants.
Certainly anyone can get a transcript as to what occurred in the trial ... [but][t]he only one that has read these documents [as a result of their admission in Callender’s trial] has been the Court.
It doesn’t have to do with trying to be secret about [any particular exhibit]. It has to do with preserving the right of the Commonwealth or the defendant until it comes in. It has to do with not allowing a member of the public to come in and damage it in any way or destroy or remove it from the file.
The trial court made no specific findings in its written orders.
Thus, the court failed to articulate the required specific findings to establish “an overriding interest [existed] that require[d] closure, that closure [was] essential to preserving higher values than the presumption of openness,” and that “the closure order [was] narrowly tailored to serve that interest.” In Re Times-World Corp.,
Other courts have considered the impact, in matters involving multiple defendants not tried together, of providing access to exhibits admitted in one defendant’s trial when another defendant remains to be tried. In In re National Broadcasting Co. (United States v. Myers),
[Djespite the extensive publicity about Abscam ..., about half of those summoned for jury selection had no knowledge of Abscam, and only a handful had more than cursory knowledge. Even the intensive publicity surrounding the events of Watergate, very likely the most widely reported crime of the past decade, did not prevent the selection of jurors without such knowledge of the events as would prevent them from serving impartially.
.... We do not believe the public at large must be sanitized as if they all would become jurors in the remaining Abscam trials. The alleged risk to a fair trial for the Abscam defendants yet to be tried is too speculative to justify denial of the public’s right to inspect ... evidence presented in open court.
If voir dire examination should reveal that at a particular time and location there is genuine difficulty assembling an impartial jury, or even that the effort to do so risks unduly narrowing the cross-section from which the trial jury will be selected, trial courts can take additional protective measures through the granting of a continuance or change of venue.
If voir dire was sufficient to avoid any bias problems in the Abscam cases, so too should it have been sufficient in this case to permit appellants to have access to the requested exhibits. Even the prosecutor in the Callender and Stoffa matters conceded that the possibility of tainting the jury pool, in the event Stoffa changed his mind and decided to exercise his right to trial by jury, probably was not enough to justify sealing the exhibits admitted in Callender’s trial.
The Commonwealth argues on brief that “it appears ... appellants intended, not just to examine the exhibits, but to make copies of them for their own use.” It contends that the decision in Smith v. Richmond Newspapers,
Whether the First Amendment guarantees a right to copy exhibits capable of being duplicated appears to be an open question in Virginia. See Smith,
The record contains no other basis for the trial court’s decision to seal the exhibits in Callender’s case which is any stronger than the weak “potential jury bias” argument already evaluated. Although the trial court here did not articulate a basis for sealing specifically tied to the facts of this case, it said generally that “until those exhibits are properly introduced against another defendant, there are issues regarding discovery, there are issues regarding admissibility as to their effectiveness against other defendants.” (Emphasis added). The exhibits at issue here—the autopsy report and related photos of the deceased child—were admitted against Callender, the deceased child’s mother, in Callender’s bench trial based on allegations she failed to protect the child. Nothing articulated in the record indicates those exhibits would not also have been admissible against Stoffa, whom the Commonwealth contended was the party more directly responsible for the child’s death. In addition, Rule 3A:ll(ii) expressly permitted Stoffa, “upon written motion,” “to inspect and copy or photograph any relevant ... written reports of autopsies.” The record in this case contains no evidence concerning discovery requests defendant Stoffa may or may not have made in his related case. However, even assuming Stoffa failed to request the autopsy report in a timely fashion, any tactical desire of the Commonwealth to prevent Stoffa from obtaining, via the record in Callender’s trial, an autopsy report he failed to request in his own case would not provide a sufficiently compelling justification under the First Amendment for the
The trial court noted a legitimate concern about preserving the physical integrity of the exhibits so as to “not allow[ ] a member of the public to come in and damage [an exhibit] in any way or destroy it or remove it from the file.” Counsel for appellants argued a narrowly tailored method of addressing this concern would be to require the parties to substitute photocopies for any exhibits removed from the file. The trial court directed the parties to follow this procedure of submitting photocopies for the withdrawn exhibits but then sealed the photocopies, clearly not the narrowest method of protecting the physical integrity of the evidence.
Thus, I would hold the trial court’s sealing of the exhibits at issue was unconstitutional.
D. LEGALITY OF THE ORDER UNDER CODE § 17.1-208
Code § 17.1-208 provides in relevant part:
Except as otherwise provided by law, any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person and the clerk shall, when requested, furnish copies thereof, except in cases in which it is otherwise specially provided.
This statutory language, which “has endured for more than a century,” was “intended to recognize the generally accepted
The record establishes that under the statute, like under the Constitution, the trial court abused its discretion both in refusing the requested inspection and in failing to make the specific findings required to support that refusal, including an evaluation of less restrictive alternatives.
II.
In sum, I respectfully dissent from the ruling transferring the appeal. Thus, I would reach the merits of the appeal and conclude that the trial court, by sealing the exhibits without
. In granting the petition for appeal, we directed the parties to address whether appellants preserved all assignments of error included. The Commonwealth states on brief that its "review of the record reflects that all of the present arguments are reviewable under Rule 5A:18.” The record supports the Commonwealth's concession regarding preservation.
. Presley thus implicitly overrules in part the decision in Richmond Newspapers,
. The Commonwealth concedes this point on brief. See also Globe Newspaper Co. v. Pokaski,
. Although the prosecutor said she had spoken to Stoffa's counsel and implied he shared her concerns about release of the autopsy report and photos to the press, her comments on this point were not entirely clear.
. "fT]he so-called Abscam cases” were widely publicized "criminal prosecutions of Members of Congress and other public officials on bribery and related charges arising out of an elaborate F.B.I. undercover 'sting' operation.” Nat’l Broad. Co.,
. In sealing the photocopies, the court noted the risk of possible damage to the actual exhibits was "rare" and was "not the Court's only consideration.”
. Code § 17.1-208 expressly permits the court to deny a request for copies of the records.