*1
v. Virginia. COMMONWEALTH of Taylor Barry R.
v. Virginia. Commonwealth of Jones, Edward Edward S. Jones s/k/a
v. Virginia. Commonwealth of 1737-06-1, 1738-06-1, 1739-06-1. Record Nos. Virginia, Appeals
Court Chesapeake.
April *7 (Heather Golias; Marvin D. Miller Law Offices of Marvin D. Miller, briefs), Alexandria, on appellants. III, General; Jeffrey,
Donald Attorney E. Assistant Karri (Robert Atwood, McDonnell, B. Attorney Assistant General F. General; Attorney Franklin, Gregory Attorney W. Assistant General, briefs), for appellee. FELTON, C.J.,
Present: KELSEY, ELDER and JJ.
ELDER, Judge. Scialdone, Barry
Claude M. R. Taylor, Edward S. Jones each appeal from a finding summary contempt § violating appeal, Code 18.2-456.1 On each contends the proceeding in which he was convicted for was not a and, summary proceeding thus, he that was denied improperly his process rights,2 notice, due the rights to including pretrial defense, present represented and to be by counsel. We hold each the appellants right was denied his to due process, and we reverse and remand for proceedings further issues, cases legal Because these involve interrelated facts and we *8 See, have purposes consolidated them for e.g., decision. Surles v. 146, 155, 563, Mayer, (2006). Va.App. 48 567 S.E.2d briefs, appellants equal protection rights On also assert their were However, any violated. none has articulated basis for assertion this Thus, argument. either on or at brief oral we each conclude has 5A:20(c); Commonwealth, argument. Littlejohn waived that See Rule v. (1997). Va.App. 482 S.E.2d the Common- if the trial court and opinion
consistent with this advised. wealth be so
I. BACKGROUND 12, 2006, by tried Dulyea Frankie was Beginning July offenses, online all of which stemmed from for several jury in and 2005 with an undercov- April May conversations he had twelve-year-old girl. Dulyea was posing officer as a police er Barry Taylor, and by attorneys Claude Scialdone represented by a law They Inc. were assisted Taylor, & Scialdone student, in the participated All three men Edward Jones. trial, Taylor but did not Dulyea’s case for preparation trial, served as lead counsel at trial. Scialdone appear in to assist him. was the courtroom present Jones officer, police undercover Scial- cross-examining the While rules age-limit applicable to ask her about the attempted done Dulyea in which had con- the online chat room she of the rules dated proffered copy versed. When Scialdone trial, the Commonwealth July day prior it did not was irrelevant because objected that the document objec- sustained the period. time The court proper cover the alia, line of ruling inter tion, you pursue want to this “[I]f [,] the rules that were you would have to have questioning “I can introduce that responded, in in place 2005.” Scialdone case____I rules that were believe we’ll have part my [the place 2005].” behalf, Later, in his own Scial- Dulyea testifying when arrested, you did make an you “After were inquired, done in that chat room check out the rules of Yahoo effort to “the rules objected that you were in?” The Commonwealth After exclud- was arrested are not relevant.” [Dulyea] after proffered set of court examined a second ing jury, the trial stated, [you proffered earlier] chat rules first “[T]he rules they printed were the bottom of So ... had a date on 7/11/06. to be the appears me what You’ve now shown yesterday. no date on the bottom.” just print with thing exact same off printed rules “were proffered that the Dulyea indicated *9 asked, The is my my “Why father and cousin.” court step twice, a then print there not date on the bottom?” and stated got to have some sort authentication on it.” “[I]t’s When the court inquired why “print[ed] trial Scialdone had [them] again yesterday,” they off said had been Scialdone unable Dulyea’s locate the that copy provided father had to them. The court “it very easy” noted would be create such a document out “whit[ing] print the bottom time and then just runfning] copy said, it.” you want to “[I]f Scialdone voir dire us while we’re presence outside the of the I jury, have no with problem that.”
The trial court then asked the Commonwealth posi- for its The assertion, tion. Commonwealth agreed with the court’s stating, very “It’s suspicious that that document exactly the objected same as the document that today.” we to earlier The trial court then recently noticed the most proffered copy of the rules bore different “Welcome so and so” line—a different name, screen indicating person signed a different on had access rules. argued Scialdone the challenged document containing the rules regardless was admissible presence or absence of a print Dulyea date because testify would both that he was familiar with place the rules in before his online contact with the undercover officer and after and that proffered document accurately set out those rules. The trial said, “Well, you can ask him of things”; all those “it’s just the document itself causing problem.” that’s me the The that, court then date, indicated in the print absence of a court was “not convinced that this was done the time—that this is an authentic If printed document. it were out aon computer, it should have a print just date the bottom like one you offered a couple ago.” of hours The court noted that, although the person printed screen name of the who it different, it just gotten. “doesn’t mean that wasn’t I need to know a date.”
Still presence outside the of the jury, Scialdone then called Dulyea’s father to the in an attempt stand to authenticate the second set of rules so that the court would admit it into evidence, but testimony Dulyea the elder progressed, that the upon questioning from the court apparent
it became printed rules he obtained and December copy name “pdu- that bore the screen two-page was a document names, copy that the his wife’s screen lyea,” one of attempted to recently room rules had most chat Scialdone it had been one-page showing admitted was a document have using name “wndydpooh.” someone the screen printed by *10 secretary’s what his inquired The court then of Scialdone answered, was, “Wendy,” he the trial court name and when her I over thought. “Yeah. That’s what Get responded, from the court I don’t Right here.... now. Call her because tell anyone’s presence----Just talk to her outside you want to got here. five minutes.... Tell Wendy to come over She’s too____It I’m them until Taylor] giving to come is 3:19. [Mr. p.m. at 3:34 when The court recessed and reconvened 3:30.” Barry arrived. secretary Wendy Suttlage attorney Taylor said, you go I need to wait out in the judge Taylor, The “Mr. Wendy, you I in here.” The then showed judge hall.... need the bearing chat rules screen Wendy Suttlage the room sheet it. questioned Suttlage her about “wndydpooh” name trial Sunday preceding it out the the printed testified she on not whether the Taylor. the of Mr. She did recall request at sheet, at bottom of the and she included a date the printout judge inquired altered the document. The then having denied The attorneys any questions the had her. Com- whether “No, Your Honor.” attorney responded, monwealth’s the judge Suttlage The then sent out of courtroom trial he Taylor recognized to stand. testified that Taylor called the rules. further Upon the chat room printout bearing the not when the sheet was he said he did know questioning, said, one, think, I us given that was to but “This is the printed client, trial court said “that Dulyea.” Mr. When the by our user interesting Wndydpooh’s since it’s under very would be it,” he responded he “[e]xplain Taylor name” and asked the that the client to look for document “was called and asked in a pile “found the document he off’ and that he dropped said on working had been they room table where the conference the Taylor case.” denied out date at “whit[ing] altering any bottom” or document in way. follows,
The court then stated as without mentioning word “contempt,” you—one you, “One of of the three of I Jones, guess—Mr. you’re in this going too—is to come clean about this.... [S]omebody better take the fall or everybody take fall going to for this.” further,
The trial attempted press Taylor he but insisted, “All I was asked to look do was to document— any look for document talked about the adults being the chat room.” He he very indicated familiar with the case, rules page because when “we were in preparation for the we had very looked this document multiple times because it was crucial to our case.” When the trial court inquired why Taylor further thought he the document retrieved was the document their them, said, client brought had he “[It only was] document the stack had this material on it.”
The trial court then had return Suttlage to the courtroom *11 and, upon further questioning, Suttlage reiterated that she printed prior the rules the in Sunday to trial a response to specific request so, from Taylor to do and she said she handed the document Taylor. to The trial court Taylor why then asked presumed he the document he from Suttlage received on Sunday your was “the you one client gave years two ago.” Taylor “Well, ma'am, responded, it’s the same document.” said, When the court “Mr. you Taylor, better come clean with me right now. going Taylor responded, What is on?” “I don’t know, ma’am,” and the told him to wait in the hall. judge
The trial court then swore questioned Jones and him about what it believed was the removal of copyright fraudulent exhibit, he, and too, date information from any but denied of it. The court knowledge then asked who “ran ... off’ “this copy rejected other that we morning this that’s dated “Oh, responded, off, Jones I ran Your Hon- 7/11/2006.” focus, or.” Changing inquired the trial court then about the exhibit, screen name on that copy asking, “Whose idea name, is a Mr. Nazi3]? a is screen West joke [the added). (Footnote Scialdone, talking.” some you better do said, “Oh, every your questions,” I’ll answer one Scialdone testified: him under oath. Scialdone placed and the us, gave he had retained Dulyea—when I know Mr. he [Taylor] things screen about adult Barry couple these about it. This my knowledge chat rooms. That’s extent of me dated handed the one to that was morning they when afterwards, to find the one that was I realized we needed file; in the [Taylor] I to look file included and asked if it. I know how to work e- they to see could find don’t I my desk. don’t my and little windows and stuff mails Wendy my secretary. not go any into that stuff. is I if secretary. Sunday is don’t—I don’t know. my Antonia print she didn’t it for me. printed something, she about “westisana- inquired the trial court once more When zi,” mat- pleaded ignorance computer about again Scialdone ters, responded: and the trial court assume, I would copy,
But know how white out you being that is been done this document which what’s being years ago but was represented given you two Taylor’s secretary or Mr. by your secretary run off actually Sunday. on v
jfc here, if not criminal. is a ethical issue There serious í¡í # % ^ firm, Scialdone Mr. it’s Somebody your Scialdone—and direction, and you your it’s and under Taylor. So Somebody has perpetrated in this case. you’re lead counsel court, it----I I will to the bottom of get fraud this *12 Mr. Taylor Jones—get Mr. and finding you am both and with it and we will deal in here—in contempt; them back Judge appeared Patricia actually as "westisanazi.” 3. The screen name presiding Dulyea’s trial. L. West was you may after the trial. And if it out that not comes one reconsider; any knowledge, may point have had I at this but in of you time all are involved. Taylor courtroom,
When and Jones had come back into further, judge inquired joke the trial “Whose idea of a is that?____ [wjestisanazi? You Anybody up want fess off, it you ran Mr. Jones. Did do it?” Jones admitted he that did and said he chose screen name “westisanazi” because “I upset thought some of I very rulings, about and it was unfair to the client.”
The it in finding trial that was all three men repeated contempt, saying, “We will finish this trial then will and we have hearings on this matter as far ... anything you else might Otherwise, want to say. just it will be sentencing Is hearings. there else anything anybody say right wants to now?” Mr. objected, When Scialdone “I saying, don’t think you there’s any finding basis of in contempt,” me the trial court recited the facts as follows: I
THE COURT: have a document that you tried to offer evidence, into you argued and that vehemently it was a your document client his father provided you when, fact, two years ago in your it’s document printed out secretary you Sunday Taylor. and Mr. Those are facts.
MR. Judge, printed anything SCIALDONE: no one out for me. That not true.
THE COURT: You lead are counsel. That was printed you out for and Mr. if Taylor. Taylor And Mr. wants to it, can; take the full fall right he but it’s of you now both on the line ... somebody Mr. Jones as well. ifSo out, can; wants to break ranks rat somebody they but otherwise the of you three are in contempt. said,
The court also will coming “these documents not be unless can you find the top ones that have at the pdulyea and a date at the bottom which case I don’t think you actually can find true Taylor documents.” made an unsuc- attempt cessful to locate the at the document firm’s offices *13 At allowed the trial court. span twenty-five minutes time, agreed court to request, that at Scialdone’s the same jury, the said all day “you break for the dismissed but over get until we those documents back going anywhere aren’t the docu- Taylor’s When search failed to reveal here.” accompany Wendy her to ment, judge the trial directed baliff to Suttlage try back the law office and asked to Suttlage to to the room rules that were identical generate a chat copy no line. “wndydpooh” the with the screen name date ones 5:16 purpose p.m. The for this from 4:49 until court recessed p.m. “[wjhether that ultimately [the
The trial court concluded not, actually room or that’s ‘pdulyea’ rules] exist[ ] chat the copy irrelevant” to the issue because totally “a attempted the Mr. to have admitted bore rules Scialdone over the evidently something ... was laid on space where it whited copied copier date and it was on a or was copyright the you see a line on one that something. out or Because can it’s me the was and you clearly copyright that where gave been altered.” said, being “I’d to know what I’m
Mr. Scialdone then like with, contempt, contempt, whether it’s civil criminal charged And have that.” may lawyer or whatever it is. I want to a responded, The trial court
Well, I’m all right finding you summary contempt, now you.... you going three of all knows what’s [0]ne It is this has been altered. here. so obvious that document mean, I the explanation no that one of except there is other you your your three of office or someone someone them to directions altered the documents and then offered are not. something they the court as one Taylor again—the then asked see the documents Mr. to screen name Scialdone had offered bearing “wndydpooh” the same name that bearing into evidence and one screen Suttlage request during had court’s generated were not the Taylor argued recess. When the documents line emphasis same and that the on the lack of date court’s have different faulty “[o]bviously, they was because must said, “Wendy, can I pages print differently,” ... it out. you try get page print need this exact do, I you Because ... when think it’s have ... both going you and the date when it copyright print [at bottom] out.” time, gone Taylor
While Suttlage second offered *14 testimony additional about his retrieval of the chat room rules for day. the lunch during Taylor Scialdone recess that ar- gued, might negligence be on our but I think part; “[I]t don’t it’s contempt judge.” judge The trial repeated finding her copy clearly that the by had been altered someone remove the date.
When Suttlage copies returned with additional of the chat room printed rules from computers various the law firm’s offices, the judge found that the one Mr. “printed from Taylor’s computer replica is the exact of the one that was introduced into for except copyright gone” evidence is where “a piece of it paper placed copied over and off.” [was] At p.m. 6:18 the court the night. recessed for Dulyea’s 13,
When trial July resumed on Scialdone offered reconstructed that appeared “pdu- document to be the 2005 lyea” rules, chat room which he said was found in pieces during a search of his firm’s trash. When the Commonwealth objected grounds on of relevance because rules dated were December whereas the relevant was in March period trial court objection sustained the and refused copy stated, admit the of the rules. The court also “this has issue,” nothing to do with the contempt which what involved the court concluded was “an offering obviously altered docu- innocence, ment.” When Scialdone again protested his said, document, court “It was an obviously manufactured so stop with the on you charade that.” “Now whether it or knew not, clean, I don’t know. And I you said until someone comes are with Taylor tainted that. Unless Mr. wants to come it, here and fall on say you’re his and he did swor[d] tainted with it.” July trial Dulyea’s the conclusion of Mr. on
Following ruled as follows jury the trial dismissed issue: contempt 18.2-456, I found all three Pursuant to Code Section Scialdone, I Mr. and Mr. you Taylor court. a fraud you attempted perpetrate found that the two of Taylor, altering the upon you, the court Mr. document you, presented to be to this court and Mr. Scial- done, offering the court. that fraudulent document to 18.2-456, clearly That under Section misbe- very falls havior of an officer of the court in his official character. Jones,
You, violated 3 of 18.2-456 which Sec[tion] Mr. vile, assaulting language deals contemptuous, [sic] with published judge respect to or addressed had, had, in It any or to be such a court. proceeding act or on, name, that covers a screen West goes your creating but Nazi, then with the document obtained that screen name court. being offered to the *15 great thought a of how to deal with this given
I’ve deal Now, contempt range merely being matter.... can from to progressing late to court to under some circumstances the the to what way up and for court all disrespect rudeness you the three of have done. that consid-
In at the continuum acts could be looking than I much worse contempt, anything ered can’t think the an document and it to attorney offering a false creating If can’t those who are officers court as true. the court trust professional, system to be and whole court honest will fail.... end, your I to that
To come the conclusion that have maxi- require behavior dishonesty unprofessional and days you each of to ten sentencing mum I’m punishment. to the order to be sent jail copy fine with and $250 State Bar. Virginia the record Taylor responded, exception please,” “Note our trial responded, everybody’s exception.” and the “Note That day, Taylor appeal same Scialdone and filed notices of finding. 16, 2006, July
On Scialdone and their began serving Jones Taylor, sentences as ordered. with permission from the trial court, report was scheduled to at a later time so that he could be married and honeymoon previously take his scheduled. 17, 2006, July Taylor
On Scialdone and filed motions for stay of execution of sentence in which they right asserted their contempt proceeding present a defense have counsel. On July Jones filed both a notice of appeal and a motion stay of execution of sentence in which he asserted the same rights Taylor Scialdone and had asserted. addition, In the three motions averred that when the trial court found them in contempt Dulyea’s at the conclusion of trial, it “read a prepared ruling and immediately left the bench without giving [appellants] opportunity present evidence, to present any to have argument [or] the assistance of counsel.” Appellants they noted were able merely “to take exception to the ruling as trial judge] leaving [court’s] [the the courtroom.” In the memoranda their accompanying mo- tions, appellants asserted that although proceedings were fashion, in a summary conducted conduct which upon “[t]he the Court wholly relied was not contained within the record of ” the proceedings of the trial in Commonwealth v. Dulyea Court conducted an investigation “[t]he included the [summoning interrogation and] witnesses who were not participants the trial proceedings” the use of the court’s baliff to gather evidence from computers at counsel’s law Appellants office. alleged they should have been time allowed to obtain counsel and prepare a defense.
By July counsel, the men had retained Marvin Miller, Alexandria, whose offices were in Virginia. By located letter faxed to the trial court that day, sought Miller an expedited ruling that, on the for stay requested motions and if a hearing on the motion required, by it be conducted
telephone day. conference that same The trial court later indicated it “heard about faxed that [the letter]” but “[some- in body they the clerk’s office said don’t accept faxes” and that, result, the trial court see faxed “[did not] [the The trial court also later letter].” indicated motion was hearing not set for because “[no one] it.” call[ed][to] set[] 19, 2006, counsel, July appellants On filed in the Court of Appeals emergency an motion for stay execution of sen- tence indicating already two of them were serving their sen- tences that the circuit court been unwilling say “ha[d] yes court, or no” to their motions for in stay filed which they alleged tantamount to a denial.” The “[was] Court of Appeals also received appellants’ appeal notices of of their contempt convictions in day. Appeals, The Court of course of attempt to resolve the appellants’ emergency motion, yet learned that the trial court had not prepared or entered a finding written order the men in In contempt. response Appeals’ the Court of the trial inquiry, court prepared and entered the contempt day. written order that July
The 2006 contempt order found Scialdone and 18.2-456(4) “(misbe- in Taylor contempt violating § Code character)” havior of an officer of the court in his official 18.2-456(3) “(Vile, in contempt violating § Jones Code contemptuous insulting language or addressed to or published had, of a in judge respect any for or act or or to proceeding had, be or like language presence such court used his intended for his for or in act hearing respect such proceeding).” noting After documents are filed and “[t]hese part made a of the record of this contempt proceeding,” 18.2-456(1) “pursuant § court also found that such misbe- presence havior of the court obstructed and interrupted justice,” presumably the administration of this lan- applying to the actions of all three men. guage July after order receiving Also fax, from the trial that afternoon via Court the execution of Appeals “grant[ed] temporary stay [the jail until that the circuit court appellants’] sentences such time *17 of also Appeals motions.” The Court pending rules on the copy forward a clerk of the circuit court to “direct[ed] to the clerk of addressing these motions the written orders and Jones days today.” within 14 Scialdone this Court stay. to that pursuant released from incarceration were indicat- the trial court July In held on proceedings stay of the motions for filing ed it was aware of the 17, that it read the Monday, July execution of sentence on motions, up to show “kept waiting that it for [the matter] it was but that never did because on docket” [the court’s] “[i]t it trial court confirmed that entered never set.” The 19. The trial court also Wednesday, July order on the men’s July indicated on fact attorney “circumvented this Court and went to the Court case, your them that we wouldn’t hear was not Appeals, telling particularly appreciated” you-all didn’t bother to set “[s]ince [the motion].” indicated, I got stay
The trial court then from “[0]nce I Appeals, pending hearing stay, the Court of on the went put today,” ahead and asked our Clerk to it on the docket for Miller, inquired why attorney, the men’s Marvin was not present hearing. for the The men averred that none of them had received that a personal hearing service notice would said, be on July night held Scialdone also “Last Marvin on hearing going Thursday, told me that was to be could be here.” The because he had trials this week and not Thursday trial court “It not to be on responded, going on It’s reporters Thursday. because we don’t have court said, “I Wednesday.” Scialdone don’t Monday, Tuesday just rely my lawyer,” make I and the arrangements. trial have a to counsel responded, right court ‘You don’t not under- anyway.... summary proceeding. you It is Do averred, “I we have a right stand that?” Scialdone believe counsel,” said, ‘Well, the trial can believe you I anything you going you, like.... But am to accommodate you since have hired counsel. But he will need to be here Wednesday.”
The pressed trial court then regarding Scialdone not wheth- er or when he had personal received service but when he had received actual notice hearing. Scialdone indicated Miller had told him Sunday evening that the would hearing be Thursday and that he did not have actual notice of a hearing Monday until morning Monday morning. He indicated he court Norfolk when called “they my me [from office] ... and they said we had to be here.” The trial court noted *18 that on Sunday, arranged Scialdone had to have a court reporter present Monday questioned on and accuracy notice, Scialdone’s statements about actual re- Scialdone sponded he had made arrangements those because
Mr. Miller told me that he should have someone over here [b]ecause, court, this morning with I dealing this am not chances____I taking any don’t know you-all what are doing. You don’t notice us. No one calls us. one No tells us anything. And if think I you just am going to not send here, somebody wrong. over I will spend a hundred and fifty dollars to make sure.
After additional argument between the court and counsel notice, said, about the trial court Scialdone, Mr. I very find it that interesting you didn’t have knowledge actual hearing yet this until this morning, you called the court reporter to have her here at nine o’clock this I morning----Frankly, think it is a lie on if your part, you get right want to down it.... I you think are lying to I you me. think knew that it was set today why and that is you reporter had the court here. you get
And didn’t notice. You are I right. have discov- problem. ered that I was out of town Thursday Friday. I have discovered problem. And that Iwhy wanted here, you-all because we will right set it now with the three of you here in court. And that is the notice you will get. indicated, The court then
So it needs to be heard on Wednesday. felony That is a day. That is a day when we have a court reporter here. I you know are charged not with a felony, but this arises out of a here. felony reporter case. There needs be a attorney’s says Your letter he cannot be here tomorrow. So it I Thursday think—Wednesday. we will hear responded, Scialdone “I think he said—he couldn’t be
When said,” Thursday respond- here until is what he the trial court ed, “I says don’t think his letter that.” Scialdone indicated they glad reporter.” would “be a court The trial provide further, court responded, “Obviously,” and commented “His says Tuesday letter he is the western district on and that is said, all it says. Wednesday.” Taylor So he can be here “Okay.” said, At hearing, the conclusion of the the trial court “We will see him on Wednesday morning. Please let him know.” Apparently, the Clerk’s Office also notified Mr. Miller hearing that the would Wednesday be held on “because the Virginia Beach courts hear these Mondays, matters on Tues- days and Wednesdays.”
At the held on hearing Wednesday, July for which unavailable, the appellants’ attorney was the trial court denied stay sentence, the motions for of execution of reasoning follows: you’ve
Although summary been found *19 counsel, have, fact, thus have right no I in all read papers and by [your information submitted attorney,] Mr. Miller[,] and I’ve also reviewed memorandum of law by submitted the National Association of Criminal Defense Attorneys.
It appears that their position summary is that this is not contempt but some contempt. other form of But I do not arguments persuasive. find their I imagine any cannot worse misbehavior in the attorneys presence of the court or so near thereto as to interrupt obstruct or the adminis- justice tration of than in this case.
Furthermore—that’s Subsection 1 of 18.2-456. But 3 and vile, 4 addressing insulting language and misbehavior of an character, officer of the court in his official which I also in in finding you contempt, cited ... do have the not that requirement the actual act occurred in the courtroom. Even it’s not though required except under Subsection 1 to actually court, have occurred in these acts did occur in court and had to be dealt with immediately to preserve the integrity of the you may trial. While all not have intended for me to see the document containing the screen name Nazi, you West is a nonetheless offered it into evidence. Your intent is irrelevant.
Furthermore, you may while not have actually manufac- tured the courtroom the fraudulent document you authentic, offered as certainly it was continuing nature because of the fact you offered it into evidence courtroom.
As to the record, assertions that not everything is on the I disagree. I saw Iwhat believed to be unethical conduct on the part of the three of you, and I had an obligation to determine if you were trying perpetrate a fraud on the court. appears That on the record.
As to obtaining your office, first, documents from there objection was no posed by any you. Second, I went out my way to make clear on the record that attorney/client And, confidentiality third, would be maintained. your em- ployee, my deputy, not produced requested materials. my only On direction he was to her escort to and from court Again, observe what she did. all of this is on the record clear, and it’s very so assertions that something missing from the record are untrue. v
Hi H* H* Hi such, As I do you not believe that have a substantial of prevailing likelihood and thus appeal your request for stay is denied.
v v Hi H« H« Hi Scialdone, recently Monday you Mr. as lied to this *20 by your court. There were several references attorney potential Monday 2006,] [July hearing date letters Monday. to me dated Your court reporter before was also proceedings Yet Sunday. you [in called insisted 24, 2006,] had actual notice of Monday, July you only hearing Monday morning. this entire case that pattern during There is a behavior I reviewing the matter should be aware of. dare anyone say picture by your supporters, that once the entire is seen I how standing find alone. don’t see you may yourself defend transcript your can read the entire still anyone unethical, shameless behavior. denied____
Your motion is court to our Taylor exceptions, please.” asked the “note portions All three men served of their sentences before the Supreme stay Court of execution of their Virginia granted pending appeal. sentences
II. ANALYSIS
A. PROCEDURAL BAR
The Commonwealth contends each
waived
appellant
his
right
challenge
his summary contempt conviction on due
process grounds
properly present
because he did not
these
Berlin,
Nusbaum v.
objections to the trial
Citing
court.
(2007),
Va.
Rule provides ruling 5A:18 of the trial court “[n]o ... will be considered as a basis for reversal unless the objection together grounds was stated with the therefor at the time of the ruling, except good cause shown or to enable Appeals justice.”4 Court of to attain the ends of As the Appellants stay averred in their motions to execution of sentence that give specific objections the trial court did not them chance to make
704 brief,
Commonwealth expressly acknowledges on purpose reversals, of the rule is to unnecessary avoid appeals, mistrials requiring litigants to inform the trial judge of complained action judge so that the has the opportunity consider the issue intelligently timely and take corrective See, Commonwealth, 574, action. v. e.g., Robinson 13 Va.App. 576, (1992). 885, 413 S.E.2d 886 A party “may meet the Lee, mandates of Rule in many ways.” 5A:18 Lee v. 12 512, (1991) (en banc). 515, 736, Va.App. 404 S.E.2d 738 instance, For may counsel make clear the ground for his objection a motion to strike the evidence in closing or argument. may Counsel also state the grounds therefor during a motion to set aside the verdict aor motion to Likewise, reconsider. may counsel objection include an and reasons therefor in the final order at least tender such an order to the trial judge. 515-16, (citations omitted).
Id. at 404 S.E.2d 738 Formal exceptions to rulings necessary are not as long party as the known “makes to the court the action which he desires the court to take or his objections to the action of the court and 8.01-384(A). his grounds § therefor.” Code Where a party objections wishes to preserve appeal through motion filed after entry final decree or order, he must obtain a ruling from the trial court in compli ance with Rule 1:1 in preserve order to appeal. issue for Babcock, 40, 44, See Weidman v. 241 164, Va. 400 167 S.E.2d (1991); Smith, 427, 433, v. 269, Smith 18 444 Va.App. S.E.2d (1994). However, 274 where a party objections makes his known to prior the court entry or at the time of of a final order or decree and not specifically does disclaim the desire to have the court rule objections, on those entry of a final order contemporaneously ruling July with her from the bench on immediately
because "she they only left the bench” and were "able to exception ruling judge] take leaving [the] [the the courtroom.” appeal, appellants On allegations provide make no contention that these "good object cause” for their "good failure to under Rule 5A:18's Commonwealth, 761, exception. cause” Va.App. See Edwards v. 41 (2003) (en banc) (holding Appeals may 589 S.E.2d Court of "good justice” exceptions not raise cause” sponte). or "ends of sua rejection of constitutes a objections to those or decree adverse purposes Rule 5A:18 for them under preserves them and 1200, 1204,409 Kaufman, Va.App. v. appeal. See Kaufman (1991) preserved were (holding objections S.E.2d his known to the trial court party where the “made appeal correspon and other written through his memoranda position of its the court to the court’s issuance prior dence with ac judge specifically “the trial amended final decree” and see also Nusb objections”); the existence of knowledged [his] *22 aum, 402-06, (holding at 641 at 503-05 273 Va. S.E.2d on right process challenge waived the to raise due appellant where, alia, to objected conviction inter he appeal contempt entry to ruling process grounds prior the trial court’s on due specifically asking of the final order but stated he was not ruling already pronounced trial the oral and change court raised). objections he the trial court never ruled on Scialdone, rulings holding The court issued verbal in 12 Taylor, contempt July July and Jones on both 14. 12, July Taylor challenged On the suffi Scialdone both ciency of the evidence to a support finding contempt, arguing negligence evidence amounted most. Scial inquired proceedings done also about the nature of the said, lawyer,” “I want a which a from the may prompted ruling summary trial that the proceedings contempt. were At on the men proceedings days, the conclusion of the those objected objec rulings only generally. general to those These tions, alone, any standing preserve specific were insufficient to However, objections appeal. speaks through a court its orders, Commonwealth, 674, e.g. Va.App. written Walthall v. 679, 169, 171 (1987), and the court did not enter the S.E.2d 19, in until finding appellants July written order Prior each filed a motion for entry, appellant 2006. to that that, of execution of in which he averred al stay sentence fashion, in though summary were conducted a proceedings upon wholly conduct which the Court relied was not “[t]he pro within the the [underlying criminal] contained record of Instead, ceedings [against] Dulyea.” alleged, each “[t]he an that included the investigation [summon- Court conducted ing interrogation of and] witnesses who were not participants in the trial proceedings” and the use of the deputy- court’s gather sheriff to evidence from computers at counsel’s law office. Appellants alleged that because the proceedings were not in summary fact proceedings, they should have been allowed time to obtain counsel and prepare defense. Mani- festly, the basis of the motions for stay of execution of sentence pending appeal constituted claim of the likelihood of success on the merits.
Most importantly, the trial court stated on the record that, prior entering 19, the contempt July order on it had received the stay had, motions to execution of sentence and fact, Thus, read the motions. when the trial court entered the order finding appellants it contempt, was well aware of argument their that the proceeding was not a summary one they and that believed the trial court in failing erred to afford them certain due process rights. Although appellants had time, filed their of appeal prior notices to that filings these did not deprive the trial court jurisdiction to act on the objec tions contained their motions because the early filed notices appeal did not take until effect the final order was entered July Commonwealth, See Saunders v. 12 Va.App. (1991). 402 S.E.2d In light of the trial court’s *23 admission that it read stay prior the motions for to entering order, the final it was irrelevant that the trial court did not formally rule on appellants’ entry motions until after of the final order and after the of Appeals Court had acted to enter a Thus, stay of execution of their sentences. on the facts of this case, appellants’ stay motions to execution of sentence and the therein, supporting grounds alleged filed before the trial court order, entered the final were more alerting effective at the trial court to the appellants’ objections than would have been the commonly accepted practice of the final endorsing order objected “seen and to” for the same Kaufman, reasons. See 1204, 12 Va.App. at 409 S.E.2d at Accordingly, 3-4. we hold goals that the of Rule 5A:18were met.5 states, majority’s imposes upon 5. The dissent “The ... view a trial court sponte obligation grounds the sua to vacate a conviction on for raised
707
in
does not
holding
recent
Nusbaum
Court’s
Supreme
The
Nusbaum,
case, involved
like this
a different result.
compel
§ 18.2-456.
contempt
under Code
attorney
an
who was held
396,
contempt
at 499. Nusbaum’s
273 Va. at
S.E.2d
to have
alleged
in which he was
from an incident
stemmed
jury,
the
an
in the
attorney
presence
another
shoved
by
judge.
but not
the trial
that was seen
the bailiff
incident
390-95,
The court declared
Id. at
asked the circuit court to recite in its order Nusbaum’s
objection
to the
determination of
summary
stay pending appeal
only
during
when
the first and
time
a motion for
defendant,
],
standing
conspic-
party
to benefit from the
vacatur[
uously
clearly
chooses not to seek that relief.” Our decision
states
that,
large part
appellants filed their motions
it rests in
on the fact
when
stay,
judge
yet
judgment
expressly
the trial
had not
entered
final
Further,
stay
did so.
stated she read
motions
she
before
text,
greater
supra, only
judgment
explained in
detail
after final
in the
Saunders,
appeal
was entered did the notices of
take effect. See
*24
155,
Thus,
duty
Va.App.
impose
greater
at
Id. (emphasis added).
During the “final
later,
six
hearing”
days
discussion
“[a]
again arose
concerning
objections to the
of court
finding that Nusbaum wanted to
the final order.” Id.
recite
In the
discussion,
course of that
Nusbaum’s counsel “again
stated that he was not requesting the circuit court to reconsid-
”
er its
ruling
merely
making sure that
the court’s
final order would “include the ‘particulars’ of his objection” to
the contempt
Id. (emphasis
added).
conviction.
When the
final
entered,
order was
Nusbaum noted a more detailed due
process objection
order,
on the final
contending the conviction
alia,
because,
violated his rights
inter
“it
summary
was a
notice,
proceeding with no
cause,
attachment;
rule to show
alleged
contempt was indirect and not personally wit-
nessed
trial judge, and the contempt charge was not
brought by
Id. at 398 n.
the Commonwealth.”
The Supreme Court concluded that Nusbaum’s
process
due
objections were barred under that Court’s Rule 5:25.
Id. at
403-06,
709 Because Id. at 403-04, 641 at 504. S.E.2d on appeal. raise to circuit court opportunity not afford the an “Nusbaum did that he now on issues process the due intelligently rule on waived raises,” held those issues were “therefore the Court 406, 641 Id. at at 505. S.E.2d appeal.” readily from Nusbaum distinguishable in holding The the Here, very of during stage the first cases. appellants’ 12, July specifi- conducted on Scialdone contempt proceedings, whether proceedings, about nature of the cally inquired the criminal, said, want a may was civil “I contempt the ruled the proceed- In the trial court lawyer.” response, Although did not ings summary contempt. Scialdone were objected point, issue the men pursue the further pro- findings punishment to the generally contempt Further, the July days within after orally nounced four contempt sentences pronouncement appellants’ court’s oral before trial court had entered the order days and two the challeng- men in filed motions finding contempt, appellants the specific merits on the ing contempt findings the on the based claims the court’s process they appeal—that due assert on Although to -violated their proceed summarily rights. decision to challenges stay these were made via motions execution sentences, the the clear that their contents of motions made challenged validity of their convictions and appellants Further, articulated their reasons for that belief. specifically Nusbaum, who a specifically unlike twice disclaimed desire rule never objections, appellants have the trial court on his trial court they indicated that did not wish have the and in process arguments attempted their due fact consider court, ruling a motions the trial albeit prompt obtain on the in execution their sentences. seeking stay the context cases, two Finally, key proceed- distinguishing record, the trial court made clear it read those ing held on motions—and, thus, appellants’ due process was aware of 19, July finding it 2006 order claims—before entered Nusbaum, Thus, contempt.6 unlike in appellants appellants July days entering 6. Seven after the written order on effective, appellants’ appeal the trial after the notices of became 710 the circuit court an opportunity
“afford[ed] to rule intelligently process ],” id., on the due issues that [they] now thereby raise[ satisfying requirements of Rule 5A:18.
B. MERITS
“ ‘Contempt is defined as an act in disrespect of the
court or
processes,
its
or which obstructs the administration of
”
justice, or tends to
the court
bring
into disrepute.’
Carter v.
Commonwealth,
(1986)
Va.App.
S.E.2d
(quoting 4A
Jurisprudence
§
Michie’s
Contempt
(Repl.Vol.
1983)).
*26
any
It
embarrass,
includes
act “which is calculated to
hinder, or obstruct the
court”
of
discharge
responsi
its
396,
7-8;
bilities.
Id. at
345 S.E.2d at
Potts v. Common
wealth,
(1946).
855, 859,
529,
184 Va.
36 S.E.2d
530
“It has
long
recognized
been
and established that a court is invested
with
power
punish for contempt,
by
both
the inherent
nature and constitution of
by
the court and
[statute].”
Commonwealth,
291,
v.
Higginbotham
294,
206
142
Va.
S.E.2d
746,
(1965);
Nusbaum,
749
399,
see
Both the common law and Virginia’s statutes rec ognize two of contempt, kinds direct and indirect. Carter v. Commonwealth, 791, 807, 96 780, (1899); Va. 32 S.E. 782 see § Code 18.2-456 (setting categories out of contempts that are subject considered direct and being punished summarily). Traditionally, direct contempts are those committed within the view of the court and for which immediate vindication of the court’s authority and integrity is considered necessary, where contempts indirect are those not committed within the view of the court and for which additional procedural safeguards Savin, provided. 267, must be E.g. 274-77, In re 131 U.S. 9 699, 700-02, (1889) 150, S.Ct. 33 L.Ed. 152-53 4 (citing William Blackstone, Commentaries on the England Laws 286 (1769)); Commonwealth, Burdett v. 838, 845-46, 103 Va. 48 rejected process clearly due claims for reasons it articulated record, denying on the stay the motions for execution the sen-
tences.
711 (1904). may punished be contempts Direct 878, 880-81 S.E. 845-46, at 880- Burdett, at 48 S.E. 103 Va. summarily. E.g. to con respect used with “summarily” when The word made, adjudication must be the time the not to tempt “refers any with dispenses which procedure of the to the form but hearing.” and a formal or examination proof further 294, 142 at 749. 206 S.E.2d Va. Higginbotham, in the presence committed contempt Where own knowl- upon it its court, proceed competent it is offender without facts, “and to punish edge Ex any form.” without issue or trial further proof, (1888) 77, 289, ]. L.Ed. 405 [ 9 S.Ct. Terry, 128 U.S. parte is, are not such as contempts—that with indirect dealing In must the court—the offender in the presence committed a rule or some other the court brought be before process____ sufficient (citations 845-46, omit-
Burdett,
at 880-81
“[O]nly possible power least ‘[t]he cases.” United end should be used proposed’ 1808, 319, 1802, Wilson, 95 S.Ct. 421 U.S. States v. Dunn, (1975) Anderson v. (quoting 194-95 L.Ed.2d (1821)). Wheat.) (6 “Trial 5 L.Ed. U.S. *27 to confusing offenses guard against ... must be on courts of to the administration their with obstruction sensibilities they may properly punish justice,” only the latter of which States, 148, 153, 356 U.S. 78 S.Ct. Brown v. United contempt. (1958). “Summary 622, 626, punishment 2 596 L.Ed.2d ” with disfavor.... Sacher always, rightfully, regarded is 451, 454, States, L.Ed. 72 S.Ct. v. 343 U.S. United (1952). part in relevant as follows: provides § 18.2—456 Code contempt, for may issue attachments judges The courts and cases: following in the summarily, only them punish court, near (1) or so in presence Misbehavior of the administration interrupt or thereto as to obstruct justice;
(2) violence, Violence, judge or threats of to a or officer of court, juror, to, a party going attending or to witness or court, in or for act or returning respect any from or of proceeding had or to be in court. had such (3) Vile, contemptuous or insulting language addressed published or a in judge respect any for or act or had, had, court, or to be in proceeding language such or like used in presence his for his or in hearing intended for respect of such act or proceeding; (4) Misbehavior of an officer the court in his official character;
(5) court, or an Disobedience resistance of officer of the juror, other person any witness or lawful process, judg- ment, decree or order of the court.
The legislature may has punishment also limited the that be imposed contempt in of summary falling cases under subdivi- (1) 18.2-457, sion § § of Code 18.2-456. to Code “No Pursuant shall, court jury, without a for any contempt such Code [under 18.2-456(1) ], § impose exceeding a fine imprison or more $250 than days.7 ten The range punishment a circuit court impose summary authorized to for contempt under § other of Code subsections 18.2-456 is not governed § statute. See Code 18.2-458 district court (granting judges “the same as a ... power [judge] circuit court to punish “in summarily contempt” no court except [district contempt] $250, case shall the fine or imprisonment exceed exceed ten days”). Although the statute trial authorizes situations, judges punish summarily the enumerated summary punishment mandatory. Further, is not trial court punish, nonsummary retains common law authority to fashion, types not enumerated the statute. Commonwealth, 145-46, E.g. 41 Va.App. Robinson v. Although requires jury heightened punish- § Code 18.2-457 before offenses, (1) may imposed provides ment be it subdivision also indictment, any may, "in such case the without an information or any pleading, impanel jury imprison- formal the fine to ascertain *28 proper may give judgment according ment inflicted to to be verdict.” (2003) nonsummary contempt pro- (involving 60, 64 S.E.2d to appear). failure attorney’s ceeding of sum- imposition contends the appeal, appellant each On rights case violated his the facts of this mary punishment trial, to the and be notice, present a defense prepare to to against a self- counsel, privilege and to assert of assistance summoning court’s Each to the trial points incrimination. obtain evi- those witnesses testify having witnesses in proceeding that the the court’s review as indicia dence for fact, not, summary proceed- was which each was convicted thus, entitled to those due and, that each ing appellant power the court’s Evaluating above. process rights listed light process due summarily contempt convict for by the Fourteenth on the states requirements imposed Constitution,8 we hold Amendment to the United States Scialdone, vio- Taylor, and Jones convictions of contempt and must be set aside. process lated due recognized, has Supreme States Court As the United find of courts to precedent power confirms “Longstanding Pounders v. impose punishment.” summary contempt Watson, 2359, 2361, 138 L.Ed.2d 117 S.Ct. 521 U.S. (1997). 976, 981 expressly equated the Supreme Court has never
8. The United States
by
rights protected against
the Fourteenth Amendment's
state invasion
protected against
federal invasion
Due Process Clause with those
identically
Clause. See
almost
worded Due Process
Fifth Amendment’s
Const,
life,
(“No
liberty,
deprived
person
V
shall ... be
U.S.
amend.
Const,
law.”);
property
process
U.S.
amend. XIV
or
without due
life,
("[N]or
any person
liberty,
property
any
deprive
shall
State
Nevertheless,
law.”).
defining
process
the area of
due
without
contempt
summaiy
punishable
conduct
what constitutes in-court
procedural
process safeguards to be followed in its
due
and
exercise,
basic
coverage of the Fifth and Fourteenth
the Court has treated the
without comment. See
Due Process Clauses as coextensive
Amendment
Oliver,
499,
(1948) (applying
To
order in
room
preserve
the court
for the proper
business,
conduct of
the court
act instantly
must
to suppress
physical
disturbance or violence or
obstruction or disrespect
to the court when
court.
occurring
open
There is no
need
of evidence
assistance of counsel before punishment,
because the court has
summary
seen the offense. Such
vindication of the court’s dignity
authority
necessary.
It has
so in the
of the
always been
courts
common law and
punishment
imposed
the
process
is due
law.
of
States,
534-35,
394,
517,
390,
Cooke v.
267
United
U.S.
45 S.Ct.
(1925)
added).
767,
69 L.Ed.
773
(emphasis
Supreme
As the United States
Court has made
clear,
power
punish
to
summarily
contempt is limited
because it
“an
provides
exception
the normal
process
due
counsel,
as a
requirements, such
and the
hearing,
opportunity
Pounders,
988,
to call witnesses.”
521
at
117
at
U.S.
S.Ct.
2362,
[F]or a court to exercise the but limited power punish contempt without adequate heard, court-disturbing notice and to be opportunity misconduct not in the only must occur court’s immediate presence, judge personal knowledge but must have acquired of it his own of the by contemptuous observations conduct. Oliver, 257, 274-75, 499,
In re 508, 333 U.S. 68 S.Ct. L.Ed. 92 682, Commonwealth, (1948); 222, 695 see Gilman v. 275 Va. (2008) (acknowl- 1, 474, 227-28 & n. & n. 1 657 S.E.2d 476 edging distinctions between direct and indirect noting that did not her Gilman “contest the characterization of short, In conviction as one direct contempt”). power punish misconduct, covers summarily “only charges open court, in presence judge, which disturbs the court’s business, where all essential elements the misconduct actually by are under the the court eye are observed [and] Oliver, 275, 509, the court.”9 333 at S.Ct. at L.Ed. U.S. 68 92 summary proceedings, In
715
Savin,
277, 9
131
at
added);
also
U.S.
see
(emphasis
at 695
309,
at
153;
9 S.Ct.
702,
Terry, 128 U.S.
33 L.Ed. at
S.Ct. at
the offense
elements of
81,
410. “If some essential
32 L.Ed. at
so that he must
by
judge,
personally
are not
observed
knowledge
for his
about
made
others
on statements
depend
elements,
according to
process requires,
due
these essential
case,
procedural
accorded” his
that the accused be
the Cooke
opportunity
notice and
including “adequate
process rights,
due
275-76,
509,
Oliver,
Applying
principles
a
conviction both
Supreme
summary contempt
Court reversed
delay
allegedly
because too
occurred between
great
act and the
and because
contemptuous
contempt proceeding
for a
judge
“request
hearing
denied the contemnor’s
not
that the
though
the merits” even
the record did
establish
contemptuous
“was
aware of the
judge
personally
[in-court]
1780,
215,
29
action when it occurred.”
Further, as one federal circuit court of appeals noted in a case an involving altercation that occurred in the court room, even where the misbehavior fully court, occurs in open
if the situation was so confused that the judge could not clearly observe and accurately record what each defendant done, had summary conviction [is] inappropriate.... [T]he theory allowing summary [behind contempt]10 is that no hearing is necessary because the judge already knows the facts. If he facts, does not know the a hearing necessary If, to discover what the facts are. despite the uncertainty, had, no evidentiary hearing is the obvious risk is that innocent persons may be summarily adjudicated and pun ished. Marshall,
United States v. (9th Cir.1971) 451 F.2d (footnote added). circumstances, Under such “the proper is, practice by rule or other process, to require the offender to appear and show why cause he should not be punished.” Id.
As the United States Supreme Court has explained, th[is] distinction finds any its reason not more the ability *31 of the judge to see and hear what happens in the open court that, than in danger the unless such an open threat the to orderly procedure of the court flagrant and such a defiance of person the and presence of the judge before the in public original quoted 10. The passage from summary Marshall refers to the contempt provision of Federal Rule of Criminal Procedure 42. That merely accepted rule codified principles, applicable constitutional summary States, contempt proceedings, e.g. v. United 348 U.S. Offutt 11, 13-14, 11, 13, 11, (1954) 75 S.Ct. (quoting 99 L.Ed. Advisory 16 42, Committee's note that the enactment of Rule which took effect in “ 1946, law, ‘substantially existing a restatement of parte Terry, Ex 289, 77, 405; Cooke[], 517, 534, 128 U.S. 9 S.Ct. 32 L.Ed. 267 U.S. 45 390, ”), S.Ct. 69 767' applied L.Ed. which the Court has in both federal cases, supra and state see note
717 it, justice,” of Blackstone has “very place the hallowed instantly punished, demoralization of suppressed not court’s follow. Punishment without issue authority will contrary ordinarily trial was so to the usual and indis- of judgment, constituting process, due pensable hearing before everything that the court saw that went assumption in open required exception; to justify court was but need for of the penal dignity immediate vindication of the court created it. however, court,
When the
is not in
contempt
open
there is
such
in
right
process].
no
with
dispensing
[due
reason
Cooke,
536,
394-95,
Therefore, process prosecution due of law in the of contempt, court,
except that
[entirely]
open
requires
committed
in
charges
accused should be advised of the
and have
a reasonable
of
opportunity
by way
meet them
defense or
explanation____[T]his
counsel,
includes the
if
assistance
requested,
give
and the
to call
right
testimony,
witnesses
relevant either to the issue of
complete exculpation or
extenuation
the offense and
mitigation
penalty.
537,
395,
added);
Id. at
L.Ed.2d and ‘criminal be 522] on someone has not been posed protections who afforded requires that the Constitution proceedings,’ such criminal *32 718 1423], [1430], Feiock, 624, 632, [99 485 S.Ct. [108
Hicks v.
U.S.
(1988),”
setting
particu
cases
out the
citing
L.Ed.2d 721]
nonsummary con
protections applicable
lar constitutional
Gilman,
228-31,
2,
at
n.
275 Va.
&
tempt proceedings). See
(in2
a district court
appeal
657
at 476-78 & n.
S.E.2d
judge’s
on the district
summary
contempt finding
criminal
(1)
certificate,
holding
applicable proce
§
Code
18.2-459
derive from the Due Process Clauses be
safeguards
dural
“
” with
prosecutions’
such
are not
‘criminal
proceedings
cause
and, thus, that the
in the
of the Sixth Amendment
meaning
right
have a
Amendment
of confron
contemnor “did not
Sixth
(2)
v.
appeal,
overruling Baugh
tation” in her circuit court
Commonwealth,
368,
(1992),
14
417
to the
Va.App.
S.E.2d 891
we
holding
holding
express
extent its
“is inconsistent with the
here”). Further,
to assistance of counsel and to a
right
nonsummary
proceedings
under the
jury
attach
crime.
512
any
Bagwell,
same circumstances as for
other
See
826-27,
2557,
(holding
at
114
at
1.
Scialdone
Finding of
analysis
due process
Based on our constitutional
above,
constitutionally ap
§
may
we hold
18.2-456
be
Code
summarily for con
permit
punished
Scialdone to be
plied
behavior that Scialdone
to the extent it delineates
tempt only
“actually
that was
eye
of the court” and
engaged
“under
Oliver,
at
68 S.Ct. at
court.”
333 U.S.
observed
elements of the
“If
essential
92 L.Ed.
some
*33
offense
not personally
[were]
observed
the
by
judge, so that
had
depend
[she
by
to]
statements made
others for [her]
knowledge
elements,
about these essential
due process re-
quired]
be accorded” his procedural
[Scialdone]
due
process
275-76,
rights.
509,
Id. at
Under settled principles,
by an attorney
“[d]eceit
may
punished
be
aas
if the
deceit is an
abuse
functions
States,
of his office....”
1,
Clark v. United
289 U.S.
12,
993,
(1933).
53 S.Ct.
77 L.Ed.
Submission of
a document that wholly
is
fraudulent or contains falsehoods is
punishable
Ford,
as contempt. United
990,
States v.
9 F.2d
(D.Mont.1925),
991-92
Clark,
cited
approval
with
289 U.S.
12,
468,
at
Thus, here,
proffer
Scialdone’s
to the court of the chat room
rules that bore
copyright
date,
no
print
if a contempt
because the document
fraudulent,
was
was a contempt for
which Scialdone could
punished
be
summarily.
Assuming
the moment that the absence of the copyright
print
dates
sufficient,
more,
without
support
finding that
document had been fraudulently altered,
the contempt was
complete when Scialdone offered the document into evidence.11
“
Because
‘all of the essential elements of the misconduct
under the eye
[occurred]
of the court
actually
[and] [were]
”
court,’
observed by
Pounders,
sufficient the dates. removing in fact Scialdone
However, punish trial court did not time that it indicate at that that time and did not summarily at contempt. him in holding the idea of entertaining was even Scialdone, the court summarily against proceeding Instead of Taylor, partner, his law telephone ordered Scialdone secretaries, “[g]et the firm’s one of Wendy Suttlage, ques- trial court then now.” The here____Right over [them] Jones, extensively to and Scialdone Taylor, Suttlage, tioned when. Under the document and printed who had determine court, having altered no one admitted from the questioning *34 express make an the trial court Only then did document. the “cop[ied]” out” and had finding “white[d] that someone date; that observe to remove the rules order chat room counsel; finding indicate it was Scial- and was lead Scialdone done, contempt. all in and Jones Taylor, to there, Suttlage It asked not however. stop
The court did that were chat room rules copy a try generate to had offered into the ones Scialdone in format to identical Suttlage accompany evidence, deputy it had the court trip that for this When purpose. to the firm’s offices back ones identical to the a of the rules yield copy failed to to the offered, Suttlage trial court sent back had the Scialdone ... time, try get “I to to saying, you need try firm to a second it just print it like this and looking page[,] [g]et this exact do, I to have the out[,] going think it’s you when [b]ecause at the have going [the date] and it’s also to copyright here Thus, found is already “[i]t the court had although bottom.” altered,” it was has been so obvious that this document that the prove evidence to to obtain additional attempting docu- a Suttlage generated been altered. After document had “the that the court found was Taylor’s computer ment from introduced into evidence the one that was replica exact of paper “a gone” piece where copyright for the except off,” for the the court recessed copied over it and placed [was] trial, the court Dulyea’s Following the conclusion evening. attempted found a on perpetrate Scialdone to fraud the court by offering a fraudulent document to the court.
Thus, assuming
deciding
without
the absence of the
sufficient,
more,
to
copyright
print dates was
without
support
finding
fraudulently
the document had been
altered,
was complete when Scialdone offered
the document into evidence. To the extent the trial court had
authority
summarily
hearing
Scialdone
without
punish
evidence,
any additional
it did not do so. Because the court
did not
proceed
punish
summarily
engaged
Scialdone
issue,
extensive efforts to obtain more
evidence
Scial-
done was
to the
process rights
entitled
due
available in a
nonsummary
Further,
contempt proceeding.
degree
culpability
Scialdone’s
was not discernable without the court’s
of Taylor
examination
and Jones to
respective
determine their
culpability,
Thus,
levels of
as well.
the particular
“[u]nder
here,
facts and circumstances
we are
the opinion
that even
though the alleged misbehavior
... by [Scialdone] was com-
mitted in
presence
[when
the court
he offered the
allegedly
evidence],
fraudulent exhibit into
should
[court]
have
had
rule specifying
contemptuous
the alleged
acts
[Scialdone],
served on
be followed
a full
hearing
matter,
instead of exercising
discretionary summary pow-
[its]
er
§
under Code
Higginbotham,
[18.2-456].”
Accordingly, we reverse Scialdone’s contempt conviction.
2. Finding
Contempt Against Taylor
of
above,
Applying the
set
we
principles
out
hold the
trial court had no authority
punish Taylor summarily.
to
Scialdone and law student
the only people
Jones were
who
made
appearances
Dulyea’s
formal
at
trial. Taylor did not
formally appear
Dulyea’s
trial and was not
present
court
when Scialdone offered the allegedly fraudulent exhibit into
time,
evidence. At that
the court had no knowledge, other
than
Taylor’s
the fact of
status as Scialdone’s law
partner,
Taylor
in any way
was involved
with the preparation of the
at
document
issue or the
submission
into
document
“
Thus,
true
‘all
at
it was not
evidence
trial.
[Taylor’s] misconduct
under
[occurred]
elements of
essential
by the
actually
observed
eye
[and] [were]
the court
”
Pounders,
988, 117
at
521 U.S. at
S.Ct.
court.’
Oliver,
275,
Before “wndyd- the screen name about who used tioned Scialdone question he not answer that and Scialdone said could pooh.” The exhibit “until lunchtime.” that he had not even seen the secretary’s name what his trial court then asked Scialdone answered, respond- court was, “Wendy,” trial and when he ed, I her over here.” The thought. “Yeah. That’s what Get firm from the courtroom to had call his law court Scialdone court, it authorized Wendy to come to and Suttlage tell As “to come over here.” Suttlage only to tell Scialdone call, it telephone make the trial court listened Scialdone said, Taylor responded “Tell to come too.” Scialdone [Taylor] but he would “tell people “a room full of at the office” said had them there” and come court. [Taylor] leave arrived, the Suttlage trial court excluded Taylor When and Suttlage from courtroom and under Taylor questioned courtroom, back into the brought Taylor The court then oath. oath, him, well. questioned Only him placed under court of his involve- Taylor did the trial learn questioning after Thus, Taylor’s the document at issue. role procuring ment sum- alleged contempt properly punished in the could not be result marily. surely knew his actions would Taylor evidence, this fact is the document into submission of but it is contemptuous, relevant to whether his behavior was acts, his if determining contemptuous not the test for whether could any, punished summarily. be Thus, we Taylor’s contempt reverse conviction. Finding Contempt Against Jones in summary contempt
The trial found Jones 18.2-456(1) (3). Based our constitution- § under Code
723 analysis above, process al due we hold these subdivisions of may constitutionally applied permit summary the statute be punishment contempt only they pro- to the extent that scribe engaged eye behavior Jones “under the of the court” Oliver, “actually by and that was observed the court.” 333 at 68 at U.S. S.Ct. at 92 L.Ed. 695. “If some essential personally elements the offense not ob- [were] by judge, served the so that depend to] had state- [she ments made others for about these knowledge [her] essen- elements, process tial due ... require[d] be [Jones] 275-76, accorded” his procedural process due rights. Id. at at at S.Ct. L.Ed. 695.
Plainly, offering the act of into evidence document bearing the screen name “westisanazi” could be found to constitute type both the of “[misbehavior in the presence of the court” 18.2-456(1) punishable § under “[v]ile, Code contemptu- ous or insulting language” meeting the additional require- (3) ments of Thus, subsection of that same code section. person offering the document bearing that screen into name evidence subject could have been summary punishment contempt on that basis. As with the of the case document alleged fraudulent, to be charged offeror was with “knowledge of] contents of he pres- [the] document[] ..., and presentation ented] a representation [was] that this duty Ford, performed.” been ha[d] F.2d
However, here, the trial court did not summarily convict exhibit, Scialdone, for contempt based on the offeror presence “westisanazi” screen name on the exhibit. Instead, placed Scialdone, it Suttlage, Taylor, and Jones under oath and sought to elicit an admission from one themof about who had devised the derogatory screen name and caused it to be included on upon the exhibit. It question the direct the trial you] court—“You [said ran off copy [that rules], chat room Mr. you Jones. Did do it?”—that Jones indicated he had in fact typed the derogatory screen name. The trial not court did observe Jones’s use name screen and had rely on Jones’s confession to establish his involve- ment in the contempt. *37 above, power punish
As
a court has the
to
set out
all
which]
of misconduct
...
summarily “only charges
[of
of
eye
the court [and]
the
... are under the
essential elements
of
275,
Oliver,
at
are
the court.”
333 U.S.
actually
by
observed
added).
of
509,
In cases
(emphases
68
at
Thus, conviction and remand we reverse Jones’s opinion. with this proceedings additional consistent
Ip. Support Sufficiency Evidence to Taylor’s Convictions
Scialdone’s we grounds, Although procedural we reverse on Taylor’s sufficiency-of-the-evidence address Scialdone’s and their retrial necessary to assure arguments12 insofar as jeopardy: will double remand not violate proceeding] the contempt [in If the evidence adduced an is entitled to he appellant], insufficient to convict [either would entitled, is a remand for retrial acquittal; if he so jeopar- double prohibition against violate Constitution’s 1, States, 437 98 in Burks v. U.S. dy. As established United 2141, (1978), sufficiency analysis full L.Ed.2d 1 57 S.Ct. Jones, too, to challenge sufficiency the evidence attempted conviction, appeal petition was denied as to that his support his but issue. 725 satisfy Jeopardy- the mandate of the Double required Clause of the federal Constitution. Commonwealth, v.
Parsons 32 529 Va.App. S.E.2d (2000). 810, assessment, 812-13 “In this making we consider evidence,” all regard admitted without for whether it was properly likely any admitted or is to be admitted in subse- Commonwealth, Hargraves v. quent retrial. 37 Va.App. 312-13, (2002). And, 743 any S.E.2d the case of sufficiency review of the the evidence a defendant’s “ appeal, ‘we must view all light the evidence most favorable the Commonwealth and accord to the evidence all Id. at reasonable fairly inferences deducible therefrom.’” Commonwealth, Clark v. (quoting S.E.2d *38 406, 409-10, (1999)) (other Va.App. 517 S.E.2d citation omitted). standard,
Viewed under this in the evidence admitted the trial court was support sufficient to finding a that Scial done and Taylor engaged in constituting misbehavior cont See, Carter, e.g., 2 Va.App. at empt.13 345 S.E.2d at “ alia, inter as, (defining contempt ‘an in disrespect act of the court processes, or its which obstructs the administration of ” supra, § 2)). justice’ Michie’s, 4A (quoting The trial judge Taylor intentionally found the that to document “alter[ed] be presented to this court” the removing print copy right dates and that actually Scialdone that fraudu “offer[ed] lent document to the purposes court.” For of assessing appli Clause, cation of the Double Jeopardy we hold the evidence supports those findings. supported
The evidence a finding that when Dulyea Frankie Taylor him, retained Scialdone and represent provided to he Taylor with a two-page copy of the Yahoo room chat rules need Taylor’s We not consider whether Scialdone’s and behavior particular § violated a subsection of Code 18.2-456. code That section the contempt does not define outer limits of behavior that constitutes purposes sufficiency analysis; merely aof rather it sets out the categories legislature purported of for which to the has Robinson, summary adjudication punishment. authorize See Va.App. at & at 144-46 n. 583 S.E.2d 62-64 & n. 7. Taylor “pdulyea.” a name of bearing
dated 2005 and screen the rules because very generally he familiar with admitted was case, preparation [they] for the had “[they] while were ... multiple times because rules [the [the looked rules] case.” Additional evidence established crucial to were] [the] trial, secretary, Sunday prior Taylor on the to had his a of the rules for him Wendy print one-page copy Suttlage, “wndydpooh” she the screen name from Yahoo and that used trial, preparing in order to do so. When Scialdone and copy to the rules their Taylor had been unable locate result, morning a at trial on the given client had them. As 12, 2006, copy a first offered into evidence July Scialdone 11, 2006, July rules a date of screen bearing print name Scialdone testified that after trial “westisanazi.” he and said rejected originally proffered the rules he if place “have have the rules that were 2005” he would to questioning line of related pursue particular wished rules, the rules the [copy he “realized we needed to find in the provided],” [Taylor] client had and he “asked to look file they if find it.” to see could him at
Taylor July admitted Scialdone called the office him “the [copy to look for rules] and asked off,” dropped although Taylor later claimed that the client then Taylor would suffice. thought any copy he rules copy of the rules had provided one-page Scialdone using the screen name printed by been retrieved and someone That by Suttlage. copy “wndydpooh,” the screen name used *39 evidence, rules, date or print the when offered into bore no of found, date, “you a line the trial court can see copyright and that the into is evidence] the second of rules offered copy [on altered,” and it’s been where clearly copyright where the was it and was “something copyright was laid over on the date something.” on or it whited out or copier a was copied Jones, Scialdone, altering all the Suttlage denied Taylor, and any in way. chat room rules subject “wndydpooh” copies retrieve of Suttlage print trial had Ms. and The court the the computers rules each of the Yahoo chat room from copyright printouts print bore and firm’s All those office. the comparing printouts Suttlage dates. various rules Ms. By evidence, to the the generated second set of rules offered into trial the that the only printout court determined matched other the set of spacing, margins, formatting and of second the printout generated Taylor’s computer. rules was The this judge printout replica” found was an “exact of the second set proffered except presence rules for the of the copyright print evidence, and dates. This taken whole viewed as a and Commonwealth, in the light most favorable to the a supported Taylor, so, finding although doing intentionally that he denied removed the and copyright print copy dates from chat room rules he to provided Scialdone offer into evidence “ rules, as the 2005 behavior ‘in disrespect of court its ” processes, or which justice.’ obstructs the administration of 2). Id. Michie’s, supra, § 4A (quoting This same evidence supported finding Scialdone’s behavior also constituted contempt. Whether Scialdone knew Ford, the document had been altered not dispositive. See 9 F.2d (holding at 991-92 submission a document containing punishable falsehoods and that “lack knowledge actual does not [of falsehoods] constitute defense, only an but extenuating mitigation”). circumstance Further, if Scialdone had made inquiry reasonable client his prior offering evidence, the second set of rules into could he have ascertained based on the different screen names and fact that the second set of comprised rules one rather page than two that the set second of rules was not the set client his had printed provided attorneys. and to his
Thus, remand for retrial Taylor of Scialdone and does not offend double jeopardy principles.
III. reasons, For we these hold each of the appellants was denied rights due we process, and reverse remand for further proceedings consistent with this if trial opinion Commonwealth be so advised.
Reversed remanded. *40 J.,
KELSEY, dissenting. path process The discourse on due cuts a broad majority’s contempt law. Problem bedeviling principles through the is, properly none of it is before us. a then-third- appeal, lawyers
On the defendants—two not raise due they any specific law did year student—concede Nor objections appeal. to their notices of process prior filing reconsider, vacate, a to to they any did time file motion to aside, the trial any specifically asking set other motion filed a motion to they court to reverse its decision. What was § jail the See Code 19.2-319. stay pending appeal. sentence held, now, that a Virginia No court has ever until appellate preserves issues stay jail pending appeal motion to sentence in a motion prior never once either to the conviction or raised set aside the to after conviction. just this sure, Virginia rejected the Court Supreme
To be Berlin, reasoning sort of Nusbaum v. 273 Va. direct, (2007). case, In that held lawyer S.E.2d he was summary appeal contempt complained indirect, to available for process protections entitled the due the entry judgment, Prior to the of final plenary contempt. objections” lawyer summary proceeding to “specific stated here) the trial asserting the ones asserted (very similar to Id. at 641 S.E.2d process rights.” court “violated his due he wanted to at 504. advised the trial court that lawyer The so, and, doing specific objections make it aware of his con- right appeal” “preserved any “make sure” he not, however, court to He did ask the trial tempt finding. Id. court for finding aside “reconsider and set added). (emphasis hearing Id. After those reasons.” the trial specific objections contempt finding, lawyer’s to its bench confirming previous a final order court entered ruling finding lawyer contempt. that, “having made the circuit lawyer argued appeal,
On
obligation
he had no
ask
objections,
court
of his
aware
oppor-
the court had the
any
matter since
reconsider
order,
vacate
the final
days
entering
within 21
tunity,
that order and change its
Id. at
rulings.”
641 S.E.2d at
*41
503. The Virginia Supreme
flatly
Court
The
disagreed.
lawyer
complain
could not
on appeal that the trial court erred
in
vacating
not
its contempt
on due
finding
process grounds,
held,
Nusbaum
lawyer
because the
never once asked the court
issues,
to do so. “Those
whether the circuit court violated his
due process rights by summarily
him
convicting
of indirect
criminal contempt, with no notice of the charge,
plenary
no
criminal hearing, and no substitution of the Commonwealth as
the prosecuting party, are therefore waived
appeal.”
Id. at
406,
5:25).
In our the defendants made even less of an effort to preserve the process due issues than the lawyer did in Nusb- Here, aum. the defendants raised their due process argu- ments only support of their motion for stay jail of the sentence pending appeal. At no point they did ever ask the court, trial orally either or in writing, to set aside its contempt findings based upon these objections. Nusbaum, As in trial court did not vacate its contempt findings based upon the after-the-fact process due objections because, quite simply, it was not asked to do so.
The majority’s contrary view imposes upon a trial court the sua sponte obligation to vacate a conviction on grounds raised for the first and only time during a motion for stay pending appeal when the party standing to benefit vacature, from the defendant, conspicuously chooses not to seek that relief. That the defendant does not ask the trial court to vacate the conviction does not matter—the court grant should it anyway. I find this conclusion hard to understand and harder still to defend.
Equally unconvincing is the effort at distinguishing Nusb-
aum.
“Most importantly,”
reasons,
the majority
the trial
”
“had,
court in our case
in fact, read
the defendant’s due
process arguments and thus was “well aware” of
specific
objections being
Ante,
asserted.
at
660 S.E.2d at 331
(emphasis in original).
“key”
That is
in distinguishing our
Nusbaum,
case from
the majority
Ante,
emphasizes.
at
Nusbaum, however,
lawyer specifi-
In
In default Nusbaum, in our it all the more to defendants applies contrary to the is as majority’s holding unpersua- case. The unprecedented. sive as it is
I respectfully dissent.
COMMONWEALTH Record No. 0597-07-4. Virginia, Appeals Court Alexandria.
6,May