*1 Claude M. SCIALDONE v. Virginia
COMMONWEALTH of Taylor Barry R. Virginia
Commonwealth Jones, Edward Jones Edward S. s/k/a Virginia. Commonwealth of 1737-06-1, Record Nos. 1738-06-1 and 1739-06-1. Appeals Virginia, Court of
Richmond.
Jan. *3 (Heather Golias; of Marvin D. D. Miller Law Offices Marvin Miller, briefs), Alexandria, appellants. on III, Attorney Assistant General Jeffrey,
Donald E. Senior (Robert General, Atwood, McDonnell, B. Attorney F. Karri General; Franklin, W. Assistant Attorney Gregory Assistant General, briefs), for Attorney appellee. FELTON, C.J., ELDER, FRANK, KELSEY,
Present: HALEY, PETTY, BEALES, POWELL, JJ., and CLEMENTS, Judge* Retired
UPON REHEARING EN BANC
KELSEY, Judge.
D. ARTHUR
Scialdone,
Taylor,
Barry
M.
R.
The trial court found Claude
*4
appeal,
of court. On
and Edward S. Jones
support
sufficient to
of this
held the evidence was
panel
Court
Commonwealth, 51 Va.
contempt findings.
Scialdone
724-27,
panel
340-41
App.
however,
retrial,
that the
ruling
remanded the cases for
hearing
*Judge
participated
decision of this case
Clements
in the
and
31, 2008, and
prior
retirement on December
to the effective date of her
17.1-400(D).
§
by designation pursuant
thereafter
to Code
court improperly conducted a summary contempt proceeding
and thereby deprived appellants of due process rights associ
718-24,
ated with plenary contempt.
Id. at
raised these points for the first and only solely time in support of a request under Code 19.2-319 for bail and a judgments A pending appeal. 19.2-319, motion under Code alone, standing does not preserve issues for appeal previ- ously raised in the trial court.
I. On July began jury trial of Frankie Dulyea on various criminal charges. Scialdone served as Jones, lead defense counsel at trial. third-year student, Taylor, law Scialdone’s law partner, assisted the trial, During defense. the course of the suspected the court Taylor Scialdone and had altered a document offered into evidence. The court also became concerned Jones had added insulting language to an exhibit offered for admission into evidence. The court investigated by these concerns examining documents and summoning additional witness testimo- ny documentary evidence. The court heard some of this evidence while Taylor and Jones were not in the present courtroom.
Anticipating end, where the investigation might court’s Scialdone stated he would “like to being know what [he’s] charged with” because he want to have a “may lawyer for that.” “I’m response, finding you the trial court ruled: contempt, you.... point all three of At this time that’s what’s of this happening.” Upon being finding, advised *5 summary to the Scialdone, objected nor Jones Taylor, neither any they request did findings. Nor contempt nature of contempt. with rights plenary associated procedural Shortly later. after days ended jury trial three Dulyea’s to trial court referred back jury discharged, had been to of stated: “Pursuant day made the first trial and ruling its in of 18.2-456, you contempt all of § I found three Code ruling, behind Upon rationale its explaining court.” Scialdone, to each serve ten Taylor, sentenced and Jones court of the jail again, a fine. Once none days pay $250 contempt objected nature of the appellants they request any procedural protec- Nor did of the findings. ap- That day, associated with same plenary tions filed of pellants appeal. notices later, days
A few filed with trial court appellants Relying for of Execution of on Code Stay Motions Sentence.1 19.2-319, they stay execution of the sentence requested of of contempt conviction the Court pending filed a appellants On also Motion Appeals. July that we Emergency Stay requesting of Sentence this Court our the sen- authority stay exercise under Code 19.2-319 court alleged tences The motions the trial pending appeal. court. stay pending had not ruled on the motions noting issued an “the circuit court’s oral We order that from the found of court ruling appellants bench” term. See to an jail Temporary and sentenced them active 2006). noted, we Stay (July response, Order further motions, 19.2-319, pursuant had “filed to Code with the circuit of each of the ten- asking court court for appeals sentences day pending Id. We temporary stay cases.” “a granted these time the circuit jail execution of the sentences until such it before pursuant court rules motions filed pending 19.2-319.” Id. Our remand was limited: specific Code July Taylor 1. Scialdone and filed their motions in the court on July 18. Jones filed his motion on “We direct the clerk of the circuit court to copy forward a addressing these motions” the written orders our clerk of Id. added). 14 days. (emphasis within *6 order, In response to our remand the trial court conducted a on the hearing for a At request stay pending appeal. hearing, argued they should be bail in granted pursue order to an appeal challenging the factual of sufficiency contempt findings legal validity of the summary contempt procedures. For the time during first the trial court proceedings, appellants argued the court improperly found them of guilty summary without contempt providing them prior with notice the charge, of an to opportunity prepare a defense, or the benefit of legal however, counsel. Appellants, did not ask the court contempt findings, withdraw its issue a outlining charges, show-cause order or continue the pro- ceedings they so retain prepare could counsel and defense. Instead, appellants summary criticized the of the nature con- tempt proceedings solely as a of preview they the arguments to intended make on appeal.
“[Bjased upon foregoing,” they appellants argued, were to entitled “an of of order execution of the sentenced] pending appeal of the to Court of conviction[s] of Appeals Virginia.” Stay Motions for of of Execution Sen- 2006). 17-18, (July tence motions, their attachment to appellants specifically made clear the of their scope argument requested the trial court: “This Court respectfully is consider these authorities support Stay Motion Id. at Attachment A. of pending appeal.” Execution Sentence The trial court denied the for a stay pending appeal. motion Appellants appealed § the trial court’s Code ruling 19.2-319 eventually Virginia secured from the Court an Supreme order staying pending appeal. execution the sentences stayed, Scialdone,
With the sentences continued. Taylor, appellate contending and Jones filed briefs the evi- dence as a guilty was insufficient matter of law find them that, They if argued court. also even the evi- sufficient, the erroneously dence were trial court conducted a them that, effect, deprived contempt proceeding law. plenary contempt under rights available process of due rejected challenge appellants’ A of this Court panel 724-27, Scialdone, 51 at evidence, Va.App. sufficiency of 340-41,2 process due accepted appellants’ but using plenary for retrial and remanded the cases argument petition filed a The Commonwealth contempt procedures. to remand rehearing panel’s decision contesting en banc peti- the Commonwealth’s granted for retrial. the cases We en to reconsider this issue. rehearing tion for banc
II. rehearing not en did banc Appellants petition and, thus, we panel’s decision the evidence sufficient finding reengage appeals. generally of these See aspect need 427, 432-33, Ferguson *7 (en banc) 692, (2008) (holding 695 en banc court S.E.2d for opinion” the panel would not address issues “affirmed banc”). “did We appellant petition rehearing which not en opinion those Id. limit panel reinstate as to issues. We proper- our en banc review to the whether question appellants challenge summary their nature ly preserved appellate and, so, of if the trial court contempt proceeding whether rights plena- of associated with deprived appellants procedural in the question answer the first ry contempt. Because we do not reach second. negative, we
III.
court
conduct
Appellants
erroneously
contend the trial
summary
proceeding
thereby deprived
ed a
with
process rights
plenary
them of due
associated
Union,
Int'l
Mine
Am. v.
generally
See
Workers
United
of
panel
justifying
conclu
reviewed
detail the circumstances
this
2. The
Scialdone,
Va.App.
applied
Taylor.
at 724—
sion as
to Scialdone and
51
27,
to consider
Bagwell, U.S. S.Ct. 129 (1994). however, record, 642 Nothing L.Ed.2d shows recognize ever asked the trial court any specific procedural right with plenary contempt. associated words, In other appellants argue the trial court erroneously them deprived they of rights requested. never procedural Rule of applies appellate 5A:18 challenges Commonwealth, 665, v. contempts, Singleton 52 672- Va.App. 73, 23, (2008), it just 26 does to other any non- jurisdictional See, claim of trial court error. Nusbaum e.g., 406, (2007) Berlin, 641 (barring S.E.2d argument that the court due process trial violated defendant’s “by rights convicting him of summarily [plenary] indirect contempt”). Appellants acknowledge point criminal this but argue their motions under their Code 19.2-319 to sen satisfy tences Rule disagree. 5A:18. We 5A:18,
Under a legal Rule raising argument sup port one relief type preserve does not appellate review the same argument support type another relief which was never Put another requested. way, “party when simply court, does not with the of the disagree action trial but action, trial seeks the take that action must be expressly sought.” Parker v. Thus, who litigant has order
merely “questioned the correctness” court’s but did “expressly indicate the action wanted trial [he] court to take” ground cannot that the erroneously failed to some action. required take Widdifield *8 Commonwealth, 559, 562-63, 159, Va.App. 43 600 161- S.E.2d (en (2004) banc) 62 (emphasis original). applies objections
This to principle uniformly to jurors,3 objections to the same evidence from different seating during unsuccessfully objects rulings party 3. A who to made the voir prospective juror appellate complaint juror has no to that dire of a juror. specifically he the trial court to strike that See unless asked Commonwealth, 6, 886, 433, v. 239 445 n. 389 894 Mu 'Min Va. S.E.2d
235
instructions,5 objections
cautionary
witnesses,4
requests
irregularities
to
objections
perjury,6
alleging witness
same:
is the
example,
point
In each
jury deliberations.7
circumstances,
litigant
a
egregious
in the most
Except
erroneously denied
trial court
that the
argue
appeal
cannot
trial
for in the
asked
he never specifically
him relief which
261,
Commonwealth,
Va.App.
29
See,
v.
Bennett
e.g.,
court.
(1999)
party
439,
(holding
objecting
“the
280,
448
511 S.E.2d
judge
it desires the
the action that
must
seek
expressly
152, 167-69, 116 S.Ct.
take”);
518
Gray v.
U.S.
Netherlands
cf.
(1996)
2083-84,
(holding a motion
2074,
This
basic to
nature of the
our
undergirds
application
procedural default
law. Like
courts,
most
we believe
is
adversary system
designed
“[o]ur
premise
around the
parties
know
is best for
what
them,
responsible
and are
for
advancing
argu-
the facts
States,
to relief.” Greenlaw v. United
entitling
them
ments
-
-,
2559,
-,
2564,
U.S.
128 S.Ct.
In this filed under motions Code asking 19.2-319 to stay trial court their sentences and admit them bail We the case pending appeal. remanded § the trial court to address those motions. “Code 19.2-319 person allows for who has been convicted of an offense to be appeal.” Bowling during released on bail of an pendency Commonwealth, 102, 354, 4, 51 108 n. Va.App. 654 S.E.2d 357 4 In respect, n. this “a bail is not an proceeding Rather, integral part guilt-innocence determination. it v. Common ancillary prosecution.” Askew is to the criminal wealth, (2006) 127, 138, Va.App. 638 S.E.2d 123 (quot 49 Smith, Commonwealth ing 337 Askew). (1985)) A motion (emphasis by added under § or call implicitly upon Code 19.2-319 does not expressly rulings judg trial court reconsider or vacate the prior its ment being appealed. short, appellants grant asked the trial court never any procedural right plenary contempt.8
them associated with It for us to the Code 19.2- altogether wrong would be recast motions for 319 motions into reconsideration defacto argue any exception applies, Appellants do not to Rule 5A:18 sponte. invoke See Edwards v. we will not one sua (2003) (en banc), aff'd order, 15, 2004). (Va. unpublished Oct. No. 040019 judge” to the trial of “fairness the case. Out merits of question on a a different twist “put should not courts appellate the trial court.” question presented to that is at odds with *10 232, 34, 44, 237 510 S.E.2d Shifflett, Commonwealth would argument, we accept appellants’ If were to we to vacate a sponte obligation the sua upon trial courts impose during time only for the first and grounds conviction on raised party standing when the appeal pending a motion for defendant, chose vacature, conspicuously the from the benefit unprecedented so would be as Doing not to seek such relief. where, as in cases problematic—particularly as it would be reason” for here, good have had a “may perfectly plenary under asking proceed the trial court specifically not at 672 n. 667 Va.App. 52 contempt proceedings. Singleton, statutory 26 “One such reason is S.E.2d at n. 3. not apply §§ and 18.2-457 do ‘constraints’ of Code 18.2-456 (citing Id. Robinson contempt proceedings.” indirect plenary, 583 S.E.2d (2003)). There, a parallels our case Nusbaum. many respects, summary contempt argued
lawyer was held for plena- available process protections he was entitled due order, lawyer of the final entry Prior to the ry contempt. (simi- objections” proceeding to the “specific stated here) “violated the trial court claiming lar to the ones asserted Nusbaum, 273 his Va. process rights.” due presented court that he lawyer The advised the trial at 504. any right he “preserved to “make sure” specific objections his finding. Id. The court summary contempt appeal” of his “to state on the record agreed lawyer and invited Id. at finding.” of court objections S.E.2d at 505. Nusbaum, however, the trial did not ask lawyer finding
court to “reconsider and set aside that “he was Stating for those reasons.” Id. court ruling,” its the circuit court to reconsider requesting lawyer advised court that he merely wanted to ensure that the final order “include ‘particulars’ objection” of his summary contempt conviction. Id. After hearing the law- yer’s specific objections to the contempt finding, entered a final order confirming its previous bench ruling finding lawyer in contempt. appeal,
On
the lawyer argued that “having made the circuit
objections,
aware
his
he had no obligation to ask the
court to
any
reconsider
matter since the court had the oppor-
tunity, within 21 days
order,
entering
final
to vacate
that order
change
its rulings.”
Id. at
Like the lawyer in
in
appellants
this
case never asked the trial court to vacate its oral contempt
findings.9 Nor did they ever seek permission to
the
relitigate
charges using plenary contempt procedures. Both
lawyer
in
appellants
Nusbaum and
in this case raised their argu
ments solely
appellate
purposes:
the former in an ineffec
tual effort at preserving the issue for appeal, the latter in an
unpersuasive effort to
pending appeal.
obtain bail
In neither
contempt pronouncements
The trial court's
merely
oral
were not
forewarnings
Virginia,
the court’s ultimate decision.
In
"orally pronounced
orders
immediately
from the bench” are
effective
Bazile,
and enforceable. Rollins v.
205 Va.
139 S.E.2d
memorializing
A written
contempt finding
order
an oral
of,
integral part
"does not constitute an
and should not be confused
with,
117;
judgment
itself.”
Id. at
139 S.E.2d at
see also
136, 139-40,
Jefferson
(2005) (”[T]he
principle
Rollins
does not affect the rule that:
'A court
”).
speaks only through its orders.’
however,
supply any
asked to
instance,
were the trial courts
sure,
only
differ-
To be
process protection.
due
neglected
in Nusb-
ence between Nusbaum
lawyer
and this case is the
its earlier
aum said he was
the trial court to vacate
asking
objections
summary
rulings
upon
process
based
his
here,
in the first
whereas,
objections
made no such
appellants
them later.
and thus had no reason
disavow
place
reasons,
“the trial
inconsequential
we find it
For these
she received and read
motions
acknowledged
appellants’
judge
finding
she entered the order
the men
before
19.” Post at
670 S.E.2d at
contempt Wednesday, July
could be
(emphasis
original). Exactly
thing
same
in Nusbaum. Prior to the
entry
the trial
judge
said about
order,
lawyer’s
final
open
he heard
court each
objec-
arguments challenging
summary contempt.
Yet, like
appeared
appel-
tions
on the later written order.
lants,
Nusbaum never asked
court to
lawyer
vacate its
the case could be
contempt findings so
relitigated
This discon-
using plenary contempt procedures.
fully negates
gave
nect
the assertion that
appellants
opportunity
court a sufficient
to “correct
error.”
alleged
Nusbaum,
here,
Post only
Because never asked the trial court to contempt procedures, they will not now be heard to plenary *12 by failing assert the trial court erred to do so. We reinstate panel’s sufficiency holdings and affirm the court’s Scialdone, and findings contempt against Taylor, Jones. Affirmed.
BEALES, J., in dissenting, part. in and concurring, part, case, I the three this difficult have concluded did, fact, preserve objections their to the “sum- court,
mary” contempt proceeding by used the trial as the trial court explicitly ruled that was hearing conducted under the summary contempt statute and reaffirmed that ruling after the appellants their written presented motions discussing the inconsistencies between the trial court’s stated intention to hold a summary and the actual proceeding hearing that court held. The trial court said at the final hearing:
Although you’ve summary been found contempt thus counsel, right have, fact, have no I read all of the papers and information submitted by Mr. Miller and I’ve also reviewed a memorandum of law by submitted National Lawyers. Association Criminal Defense
It that their appears position is that this is not but some other form of But I contempt. do not arguments persuasive. find their Although this was hearing appellants’ held to address mo- sentences, tion to stay the execution of their the trial court clearly considered the substance appellants’ arguments regarding procedure used the court to find them in Given the recent Supreme Virginia Court of decision in George 276 Va. 667 S.E.2d (2008), although appellants’ arguments timing (and this case were not as specific might prefer as we as the I majority agree of this Court would with the conclu- require), opinion sion of the dissenting appellants’ argument re- garding contempt procedure used here was preserved the trial court knew of and on appellants’ objections. ruled Berlin, Contrast Nusbaum 385, 402-04, (2007) specifically told (finding 503-04 Nusbaum that he was not that the court its asking reconsider ruling, argument regarding thus his the court’s procedure was I preserved appeal). Consequently, appellants’ believe Question regarding process Presented due must be addressed.
Contempt charges summary proceed- are tried either with a on its ing wherein court acts based own observations from the bench or with a wherein evidence plenary proceeding
241 is afforded the to the trial court and the accused presented is Normally, due of a defendant. this process rights traditional contempt—whether reflects the nature of the the difference i.e., court, “direct,” accused’s actions were before the or “indi- rect,” i.e., outside the of the court: presence
“The substantial difference between direct and a con- procedure. structive is one of [indirect] Where court, presence is committed of the it competent is for it to its own proceed upon knowledge facts, punish and to the offender without further (Citations issue trial in proof, any and without or form.” omitted). is,
“In dealing contempts—that with indirect such as are committed not in the presence of the court—the offender brought by must be before the court a rule or some other process; sufficient but the power punish of the court to is same both cases.” Com., Case,] [Burdett Burdett’s [838,] 845-46, 103 Va. [(1904)]. [878,] 48 S.E. 880-81 Commonwealth, Davis v.
682 Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more formal procedure adjudica- than an immediate tion the court.
Robinson v.
137, 145-46,
41 Va.App.
583
(footnote
(2003)
omitted;
S.E.2d
64
alterations in original);
States,
see also Cooke v. United
517, 535-37,
267 U.S.
45 S.Ct.
390, 394-95,
(1925). Here,
To determine the appropriate remedy for this procedural error, sufficiency of the evidence must be considered. Ferguson v. Common- Although majority opinion cites wealth, (2008) (en 427, 432-33, banc), it explain why sufficiency does not discuss convictions, support appellants’ process evidence to the due sufficiency arguments appeal, are intertwined this *14 in Ferguson. Id. at 430-32, the various issues were not 658 addition, at Ferguson’s remaining ques S.E.2d 693-95. the Court en banc did not the presented, tions ones that address, than related to different convictions the one that the Court en banc did consider. Compare Ferguson Common wealth, (2007) (three- 351, 355, 724, 50 649 S.E.2d 726 Va.App. Ferguson, 430-32, judge panel), Va.App. 51 at 658 S.E.2d at banc). Here, en (sitting sufficiency pro 693-95 the and due cess relate to the conviction for each arguments appel same lant, in by three-judge panel’s explanation as evidenced it sufficiency question only this case that addressed the “inso necessary far as to assure that their retrial on remand will not Scialdone v. violate double 51 jeopardy.” Finally, appel level, and, result, at a panel lants here won their appellant the one conviction of each was reversed. Converse Ferguson ly, panel opinion only Fergu reversed two of convictions affirmed the other three convictions. son’s any did not ask for review of of the three affirmed Ferguson convictions, and the appealing panel’s Commonwealth felony decision one of the child convictions regarding neglect or the implicate any did not affirmed convictions in Fer Therefore, malicious conviction. wounding overturned 432-33, guson, Va.App. at Court decided that reexamination of the convictions appropriately three-judge appropriate. affirmed was not panel that reasons, apply does not analysis, foregoing That same for the case, and, therefore, sufficiency of the evidence this addressed. must be Scialdone, was suffi-
In the of the evidence appellant case if evi- summary him even contempt, cient to convict of that the trial court about events occurred by dence collected on the solely its were excluded. Based presence outside Scialdone himself as to the trial presented documents defense, of his the trial court had sufficient part client’s guilty him of evidence find court. trial, day The first Scialdone to introduce an attempted (Exhibit 1), July exhibit dated listed the rules for Yahoo chat room. trial court ruled Exhibit 1 irrelevant was as the offense for which Scialdone’s client was being prosecuted occurred told the Scialdone that he hoped period to have rules for the relevant time break, later the trial. the lunch attempted After Scialdone (Exhibit 2) to introduce into evidence second exhibit that the trial court exactly except noted looked like Exhibit the date was bottom missing from the 2. The court Exhibit also noticed that the name for room sign-in the chat was different. then represented Scialdone to the court that Exhibit 2 was the document that his “father brought my client’s office when was repeated represen- [the client] arrested.” Scialdone this later, argument tation during over admission Exhibit 2. The court *15 put then told that Scialdone he could his client’s on the provide father stand to a foundation admission of that, the document. The father testified after his son was arrested, name, he sign-in and a relative used his wife’s found rules, the chat printed room stapled out two them pages, together, brought and them to use in Taylor his son’s defense. The trial court noted that only Exhibit had one and that page sign-in name was from different the name that the father he testified had used. then Scialdone claimed he first saw the during document lunch.
At this point, the trial court a discovered connection be- tween Scialdone’s secretary sign-in 2, and the name on Exhibit told Scialdone to call his her secretary and have come to the courthouse, and also Scialdone Taylor told to have come to the courthouse. The court proceeded then to take testimony the secretary Taylor, from and questions asked of Scialdone Jones, and and accepted various additional documents that printed were out from the computers law office. Scialdone’s Although Taylor both and Jones during were excluded much this testimony, acknowledged Scialdone’s counsel during before this Court en bane argument oral Scialdone was was, by from the trial court and not excluded the courtroom therefore, proceeding the entire as it present during contempt to him. related trial court that Ex-
Although represented Scialdone father, provided 2 had been to his office his client’s by hibit father, provided by that exhibit was not the one but clearly 1, a the date. copy instead was of Exhibit altered to omit As court, an a attorney duty an officer of the Scialdone owed to the honesty of truthfulness trial court. Scialdone’s that Exhibit representation cavalier jury, that he was authen- present document wanted Therefore, clearly duty. it not—violated this tic—when was investigate produc- the trial court continued to although summary of Exhibit that deviation from tion did not affect conviction. procedure unduly Scialdone’s Even excluded, testimony if the additional and evidence were evidence sufficient convict Scialdone remaining was still Therefore, summary contempt of court. as the error these beyond was harmless reasonable doubt rela- proceedings Scialdone, Dearing tion to see (2000), majority 124-25 I with the agree that his should be basic conclusion conviction af-
opinion’s firmed, I although this conclusion different reach reasons. contrast, found Taylor guilty trial court produced by based on the evidence witnesses investigate the court in its efforts to examined prof- 2—not based on the documents production Exhibit in the criminal open fered Scialdone in evidence jury presiding. trial over which the court was evidence in an to have Exhibit 2 attempt that Scialdone introduced *16 in Taylor any wrongdoing did not before implicate admitted fact, In was not even in the courtroom Taylor the trial court. tell him trial ordered Scialdone to call and to until the court court Only the after the trial asked come to courtroom.10 secretary, Although Taylor to the courthouse with Scialdone’s came during Taylor the the secre- trial court excluded from courtroom the testimony. tary’s Jones’s and Scialdone, did secretary, Taylor, of the and Jones questions implicated Taylor the in the find that evidence Therefore, the error commission a fraud the court. to was not id. Taylor’s relation conviction harmless. See harmless, Taylor argues As error and as the was I the was insufficient convict him contempt, evidence to sufficiency we should consider the of the believe also evidence if him in to determine the should be convict order conviction See, or Leybourne remanded retrial dismissed. e.g., I reviewing totality against Taylor, After the of the evidence would find that the trial court sufficient facts it to had before Taylor allow a rational factfinder to conclude that acted Taylor of court. person was first the law document, office see the original as the Ghent’sfather gave copy guidelines Taylor chat room’s rather than to addition, Scialdone. when secretary returned to office attempt court’s direction to to replicate Exhibit Taylor’s computer produced exactly a document like Exhibit except that document had a date at the bottom. Taylor himself he admitted that was in the office his partner when and working Jones were on the case and that he helped them prepare. He also testified Exhibit 2 was document father, him given that, the client’s and he claimed after it, Scialdone called asked him look he and found it on a table in room during their conference the criminal trial’s lunch secretary Taylor attorney break. The testified that was the who her to off room print asked the chat rules. facts,
Considering all these I would find that the evidence was sufficient to court’s support finding However, properly this evidence was not before the court Taylor’s im- summary contempt proceedings, Taylor was properly during excluded from the courtroom when hearing the trial court heard important parts Therefore, him. I testimony concerning would reverse Taylor’s remand conviction for new hear- plenary contempt inclined, if the trial or ing be so Commonwealth *17 the outright the conviction on rather than dismiss based Id. I must dissent from procedural Consequently, errors. majority Taylor’s the affirmation of conviction. opinion’s Finally, also was found in based on evidence Jones and taking evidence presented began after court The had as a witnesses. trial court Jones sworn questioning hearing Taylor from and the secre- testimony witness after prepare that the case before tary. helped Jones admitted he trial, that he was not the present but told the Instead, wife office lunch. he went out eat with his during he her then that created and used sister. Jones admitted name on Exhibit 1 and sign-in appeared that offending then printed that he out that document. trial court go ordered outside the courtroom while Scialdone Jones for 1 and presented explanations his Exhibits Jones, have Prior to confession the trial court did not him of summary sufficient evidence to convict Therefore, trial court’s was not harmless error error Jones, especially improperly the trial court also relation during part him from the of the excluded courtroom However, unlike the suffi- Taylor, him. proceedings against actually not before ciency to convict Jones was the evidence so, I presume in his would appeal, consequently, us him.11 of the evidence was sufficient convict totality Thus, reasons, I also Jones’s foregoing for the would reverse con- for a plenary conviction and remand conviction new be so if the trial or the Commonwealth tempt hearing, id. See inclined. majority I analysis, on concur foregoing
Based trial court’s conviction affirming the opinion’s conclusion However, Scialdone, grounds. I do so alternate although sufficiency evidence petition regarding the 11. Jones’s (Thus, argue panel or to granted. he did to convict was not support his was insufficient Court the evidence en banc that, Therefore, conviction.) majority agree conclusion of the I with the Jones, sufficiency of the consider we should not in relation to contempt finding. support the evidence to agree majority opinion’s as I cannot with the affirmation convictions, I Taylor’s respectfully and Jones’s dissent relation to those appeals, foregoing reasons. *18 J.,
ELDER, FELTON, C.J., CLEMENTS, with whom and J., join, dissenting.
I majority’s believe the application of Rule 5A:18 to bar this appeal reaches new in heights elevating form over substance extends boundaries of the rule far beyond those in previously Virginia’s Here, set out appellate decisions. appellants objected to the judge’s finding trial of contempt she when sentenced them. Although they did not detail the time, basis for their at objection they just did so a few days later in sentence, written motions for execution of of which they filed judge trial entered an order before memorializing her contempt ruling. importantly, More judge trial acknowledged she prior read the motions enter- ing the contempt order. The motions specifically challenged of validity the contempt rulings, alleging the trial judge, by calling evidence, witnesses and gathering exceeded the bounds of contempt proceedings without affording appellants the additional procedural rights they to which were entitled in non-summary proceedings. judge The trial was clearly made aware of appellants’ objections specific at a time findings when the matters were still within court, the breast of judge rejected expressly those arguments in a ruling later on the denying record motions for stay of execution facts, of sentence. On I these do not believe required were to request particular form of vacating relief—the or setting aside of the findings contempt and the related sentences made from the bench but not yet memorialized in ruling—in a written satisfy order to Rule 5A:18. For the reasons set out in the majority opinion at the panel stage, Scialdone 51 Va.App. 710-24, (2008), I 332-40 continue to believe each appellant was denied his to due right process proceed- ings clearly exceeded the bounds appropriate sum- mary contempt. I also continue to believe remand Scial- with Taylor proceedings comporting for retrial
done and Id. jeopardy principles. offend double process due would not Thus, 724-27, I dissent. respectfully at 340-41. I. majority opinion adequately I fails
Because believe the facts key of events and some of sequence recount events, briefly I detail those here: related to those Dulyea began Frankie criminal underlying When third-year student Jones Scialdone and law July Taylor, partner, Scialdone’s law was served as trial counsel. any proceedings in the courtroom for present when, in the midst of Dulyea’s Taylor appeared only case. Wednesday, directed Scialdone to July judge trial on Taylor and one in the courtroom summon telephone use the to court. The immediately the firm’s to come secretaries *19 any expla- them provide Scialdone not to with judge ordered secretary the Taylor Once and judge’s nation for demand. arrived, inquiry concerning significant portion judge’s a of of all occurred outside the questionable presence exhibit ever used the word judge before the trial but Scialdone and men in finding Once she did state she was Taylor both sufficien- challenged Scialdone and contempt, contempt, arguing of support finding of to cy the evidence Scialdone also negligence to at most. the evidence amounted said, “I may and proceedings the nature of the inquired about from the trial court lawyer,” ruling prompted want a which judge summary contempt. The proceedings were and indicated, Dulyea’s criminal] trial [Mr. “We will finish far as contempt] on matter as hearings have [the then we will to you might say.” ... want anything else trial on Dulyea’s of following conclusion Immediately 14, 2006, stated the basis judge the trial Friday, July pronounced a sentence of contempt and each man finding ordered Scialdone and fine for each. She and a days ten $250 16, and Sunday, July their begin serving to sentences Jones re- July Taylor reporting until Taylor delay allowed our sponded, exception please.” “Note for the record appeal judge’s contempt three then filed notices of men However, an because the trial court did not enter findings.12 and until rulings order sentences embodying filed, the notices of were of did appeal appeal notices after Wednesday, July take effect until the date on which was entered. See Saunders the final order 12 Va.App. days prior July 17,
On Monday, judge’s two order, entry of mo- Taylor Scialdone filed stay tions for of pursuant execution their sentences to Code § Tuesday, 19.2-319. On an July Jones filed identical that, Each of motion. the motions averred although the proceedings fashion, were a summary conducted in “[t]he upon conduct which the wholly Court relied was not contained within the record of the [underlying proceedings criminal] [against] Dulyea” and that Court conducted an investi- “[t]he gation that included [summoning interrogat[ing] ... wit- and] participants nesses who were not in the trial proceedings” using the deputy court’s gather sheriff from evidence computers at law counsel’s office. Appellants alleged that because the proceedings were not in fact summary proceed- ings, they should have been allowed time obtain counsel and Thus, prepare a defense. the basis of the stay motions for execution of sentence pending constituted a claim the likelihood of success on the merits of the appeals.
On Wednesday, July filed in the Court of Appeals an emergency motion for execution of sen- tence two indicating already of them were serving their sen- tences and that the circuit court been unwilling say “ha[d] *20 yes or to stay court, no” their motions in for filed that which they alleged tantamount a “[was] denial” of those motions. The Court of Appeals, in the of attempting course to resolve appellants’ motions, emergency learned the trial court had not yet or prepared entered a finding written order the men in Taylor appeal 12. Friday, July Scialdone and filed their notices of on 14. July Tuesday, Jones filed his notice of on 18. In the Court of the response Appeals’ inquiry, prepared contempt trial and entered the written order judge clearly judge The record indicates the trial ac- day. that she received and read appellants’ motions for knowledged the in finding she entered order men before then, Manifestly, at a time when the Wednesday, July authority trial to set aside the find- judge retained appel- she of ings plenary proceedings, and initiate was aware not have contempt proceedings lants’ claims that should have summarily been conducted and that should and prepare allowed time to obtain counsel a defense. been II.
Rule of ... provides ruling 5A.T8 court “[n]o objection a for unless the will be considered as basis reversal time together grounds with the therefor of was stated the Court except good cause shown or to enable ruling, justice.” of The of the Appeals purpose of to attain the ends reversals, unnecessary appeals, rule is avoid and mistrials judge to inform the trial of the action by requiring litigants so to consid- complained judge opportunity has timely corrective action. intelligently er the issue and take See, e.g., Robinson are exceptions Formal not rulings as the “makes known
necessary long party (1)] the the court to take or he [either action which desires [(2)] objections grounds his to the action his 8.01-384(A). § therefor.” Code 5A:18, legal a raising Rule majority holds that “Under type preserve of relief argument support one does another argument support review the same appellate (Emphasis was omit- requested.” relief which never type ted.) result some prior Although practical this has been scenarios, today, until neither particular factual cases under are court whose decisions any higher appellate this Court nor must be applied us binding principle has held such upon rule, majority unneces- all cases. such announcing beyond the text boundaries well sarily procedural bar tightens
251 which, 8.01-384(A), § quoted Rule and Code as 5A:18 provides that either a above, of the action expressly statement i.e., take, the to the he objecting the desires relief party seeks, or a statement of his objection to the court’s action preserve that grounds objection for is sufficient objection appeal. for factually
The are upon majority cases which relies distinguishable majority and do not dictate the result areas, case. few reaches this a well-defined established principles require objecting party specific a request A example requirement form relief. classic is the that a desires a mistrial one request promptly defendant who must upon occurrence the event on which he claims entitlement mistrial; a mere a objection request to the event or for a cautionary preserve instruction is insufficient to the mistrial See, e.g., Commonwealth, Bennett claim for appeal. 29 280, see also Manetta (1999); 511 Va.App. S.E.2d 448 123, 127 n. 340 S.E.2d n. (1986) that, (recognizing principle the well-settled where a successfully defendant objects to admission of evidence requests that it be stricken a ruling or obtains that evidence is admissible only purpose, a limited a has a duty give cautionary no or limiting instruction unless the one). defendant specifically requests cites Bennett The majority general proposition that “ party ‘the seek objecting expressly must the action that it However, Bennett judge desires the to take.’” a involved very specific objectionable factual context—allegedly com aby prosecutor ments made during closing argument jury in a trial. 29 at at 448. We made the context, statement quoted majority unique holding that allegedly improper “[w]hen comments are made trial, during argument a closing guilt phase [jury] seek objecting party expressly must the action that it added). take.” Id. desires the judge We (emphasis listed the only two choices under those circumstances a making cautionary motion for a mistrial or requesting instruction. Id. at 280-81, Court acknowledged prompt, request requiring specific a defendant make particular these circumstances is a rule under mistrial
for a “[tjhere to be requiring application,” appears “strict to which *22 281, 511 at 449. exception Virginia no in law.” Id. at S.E.2d Thus, our Bennett belies in assertion holding majority’s case. every a applies that such strict rule on and other situations in which majority focuses this a Virginia’s prompt request decisions have held that appellate important for a of relief is to avoid specific type particularly However, a require the need for not all situations retrial. 8.01-384(A) relief, § form of request specific a Code objection or that the stat- expressly acknowledges, require be no other. a more particular point ed at a time and Unless motions, rule as is the case for certain mistrial specific applies, court’s meet party challenging “may a a determination Lee, Lee v. 12 many ways.” mandates of Rule 5A:18 (1991) (en banc). 512, 515, 736, 404 S.E.2d 738 Va.App. instance, for his may For counsel make clear ground objection closing in motion to strike the evidence or a therefor may grounds also state the argument. Counsel set verdict or a motion to during motion to aside the Likewise, ... may objection include an reconsider. counsel in the final order or at least tender and reasons therefor judge. such an order to the trial (citations omitted); George see Id. at 515-16, 404 S.E.2d 738 (2008) Commonwealth, 773, 779, v. 276 Va. 667 S.E.2d 782 5A.18, of Rule (reversing applying the decision this Court did not phrase that use the holding “[ajlthough [the defendant] object variance,’ arguments [in ‘fatal his before jury’s and to set aside the jury moving to a instruction ing on of his put that court notice were sufficient verdict] indictment inconsistency between the regarding the position instruction”); Jay jury and the cf. (2008) 517-20, (holding 659 S.E.2d 315-17 dismiss jurisdictional grounds may of Appeals
Court Rules of comply requirement with the fail to appeals 5A:20(e) 5A:12(c) include principles that a petition “[t]he and to each law, relating and the authorities argument,
253 deny that, may question presented” although Court such on waiver it ... consider appeals principles, “should whether any strictly requirements failure adhere 5A:20(e) is insignificant, allowing Rule thus the court to ad- dress the of a question presented”). merits objections
Where a wishes to party preserve entry order, or through motion filed after the final decree he ruling must obtain a from trial court in compliance with Rule 1:1 in See preserve appeal. order the issue for Babcock, Weidman v. 40, 44, 167 Va. Smith, Smith (1991); (1994). However, party objections where a makes his
known to court prior entry to or at the time of of a final order or specifically decree does not disclaim the desire to have the court rule on those objections, entry of a final order or rejection decree adverse to those objections constitutes a *23 them preserves and them under Rule 5A:18 purposes for Kaufman, Compare v. appeal. 1200, 12 Va.App. Kaufman (1991) 1204, 1, 409 3 (holding objections preserved S.E.2d were for appeal party where known to “made his position his and through memoranda other written correspon- dence with court prior to the court’s issuance of its amended final decree” trial judge and “the ac- specifically with Nusbaum knowledged objections”), the existence of [his] Berlin, 385, (2007) 406-06, Va. 494, 273 S.E.2d 641 503-05 (holding appellant right challenge waived the his con- alia, where, on due inter tempt process grounds conviction he objected trial ruling court’s on due process grounds prior entry of the final but specifically order stated he was not asking change ruling already court to the oral pronounced and the objections trial court never ruled on the raised), and 559, he Widdifield (2004) 562-63, (en banc) (in 600 S.E.2d 161-62 a revoca- tion in which proceeding the trial court ruled the defendant was not entitled to credit previously for twelve months she served in a jail as condition of the suspension two-year sentence, prison first, during which “I defense counsel said understand,” said, elaboration, then and without “I’m not sure works,” remarks did not make holding counsel’s
that’s how it and, thus, “[a]ppellant any, relief, counsel desired clear what if there- grounds with the objection ‘together an failed to state ruling”). time of the for’ at the orders “contempt in footnote 8 that majority’s assertion immediately effective from the bench’ are
‘orally pronounced goes, far it but what is correct as and enforceable” principle upon which not make clear is that majority does judgments, to all just not those applies is based language this Bazile, 613, 616-17, Rollins v. Va. (1964) follow (involving trial for 116-17 by a ... to an examination “refusing to submit ing Rollins’s he whether was by the court to determine appointed physician Further, testify”). appear able physically Rollins, sequence the relevant the Court noted deciding only pronouncement included not the oral in that case events order unsigned of an spreading also the ruling of the but a particular the order book on ruling memorializing facts, the Court Id. at at 118. On those 139 S.E.2d day. on the order was signature the judge’s the lack of held order of conviction copy of the “[t]he and that dispositive not was August order book under date on the spread judicial determination of the the petitioner [Rollins] notice to which, fact, timely petition matter,” he filed after of the 617-18, Id. at pending appeal. for bond and motion rulings oral Thus, that all 117-18. to the extent enforceable, this fact does immediately effective are of the court’s endorsement that the date negate principle book without on the order order, spread the date it is or *24 time relevant endorsement, other is the date from which limit Rule 1:1 or calculated, i.e., 21-day time are periods filed notice prematurely of a date of effectiveness 139, 136, 269 Va. appeal. Cf. Jefferson the Rollins (2005) (“[W]e that out point S.E.2d only speaks rule that: ‘A court does not affect principle ” Smith, Cunningham (quoting through its orders.’ (1964))). 205, 208, 135 summary objections their Here, presented appellants stay in motions to execution of the their proceedings nature filed after the the motions were Although sentence. appel- and after pronouncement oral of sentence trial court’s did not notices of the notices of appeal, lants filed their order the trial court entered the written take effect until after The trial rulings and sentences. memorializing contempt its that, stated before it entered the expressly stay. it motions for July appellants’ order on read clearly The trial was aware of claims that the appellants’ summary proceedings were not fact contempt proceedings and, thus, they rights that should have been afforded various prepare time to counsel and a defense. The including obtain notice correct judge ample opportunity alleged had error the final order but to take no entering opted before because, in denying action as she later detailed on the record stay, the motions for she believed proceedings were proper and that received all the to which rights they were entitled. Nusbaum does not Supreme holding
The
Court’s recent
Nusbaum,
support a different result.
the Court relied on
grounds
concluding
process objections
dual
his due
were
barred
that Court’s Rule 5:25. 273 Va. at
at 504.
It
did not
his
emphasized
Nusbaum
raise
due
process objections for the first
time until more than two
months after the court found him in
and that he
instead,
objections,
never
requested
ruling
stating
on those
objections,
each time he asserted his
that he was not asking
Id. at
change
ruling.
the court to
its
III. Thus, contrary position taken the majority, appel- lants “responsibility] assumed advancing facts and relief,” arguments entitling them to see Greenlaw v. United — States, U.S.-,-, 2559, 2564, 128 S.Ct. 171 L.Ed.2d (2008) (citation omitted), “presented] argu- [those manner appropriate [an] in [an] ments] court[] Sanchez-Llamas see adjudication,” time for appropriate 2669, 2685, 165 L.Ed.2d Oregon, 548 U.S. 126 S.Ct. *26 of this issue on hold that our consideration 557 To because it judge” appeal ] is somehow “[un]fair[ at odds with the a different twist on a is “put[s] question see Commonwealth court,” to the trial question presented (1999), Shifflett, patently 237 is S.E.2d should not be used to bar consider- wrong, principle and this ation of this the merits. merits, panel’s set out in the
On the
reasons
majority
appellant
I continue to believe each
was
opinion,
clearly
right
process
proceedings
denied his
to due
exceeded the bounds
appropriate
Scialdone,
710-24,
I
at
Delano KING Virginia. COMMONWEALTH of Record No. 2029-07-2. Appeals Virginia,
Court of
Richmond.
Jan.