Amos v. Commonwealth

740 S.E.2d 43, 61 Va. App. 730, 2013 WL 1403440, 2013 Va. App. LEXIS 111

• Court: Court of Appeals of Virginia
• Decided: April 9, 2013
• Docket: Record No. 1667-11-4
• Status: Published

Opinions

FELTON, C.J., with whom FRANK, KELSEY, BEALES, and HUFF, JJ., join,

dissenting.

I respectfully dissent. In my view, the record on appeal reflects that appellant failed to preserve her assignments of trial court error for appeal, as required by Rule 5A:18. Moreover, I conclude that the “ends of justice” and “good cause” exceptions to Rule 5A:18 are inapplicable to this appeal. I would affirm the order of the trial court finding appellant guilty of contempt.

A.

The determination whether appellant is procedurally barred from raising her assertion of trial court error on appeal, and, if not, whether the trial court erred by finding her guilty of contempt, is a question of law that this Court reviews de novo. Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010).

The record on appeal shows that, on June 10, 2011, appellant appeared before the trial court to testify as to why her ex-husband’s probation should be revoked.⁷ At the conclusion of the hearing, the trial court dismissed the show cause order against her ex-husband. It then directed appellant to the front of the courtroom. The trial court stated that it found overwhelming evidence that appellant “flat-out lied under oath.” It stated that her behavior was “vindictive” and “very offensive to this Court [and] to every person in the legal community.” It found that she had “use[d] [the criminal justice system] to further [her] vindictiveness.” The trial court then found appellant guilty of contempt of court, sentenced her to jail for ten days, set her bail in the amount of $10,000, and ordered the sheriffs deputy to take her into custody. The trial court then proceeded to call the next case on its docket.

Appellant posted bail and was released from custody approximately seven hours after the trial court found her guilty of summary contempt. Seventeen days later, appellant filed a detailed motion for reconsideration of its finding her guilty of summary contempt, and a motion to vacate her conviction of contempt, in the trial court.⁸ The trial court never ruled on appellant’s motion, and there is no indication in the record that appellant sought a ruling of the court on her motion for reconsideration or her motion to vacate her contempt conviction.

Where a party fails to obtain a ruling on a matter presented to a trial court, there is nothing for this Court to review on appeal. Fisher v. Commonwealth, 16 Va.App. 447, 454, 431 S.E.2d 886, 890 (1993). See also Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967) (assignment of error waived on appeal where the trial court did not rule on defendant’s objection, and defendant “did not insist that the court rule” on his objection); Williams v. Commonwealth, 57 Va.App. 341, 347, 702 S.E.2d 260, 262 (2010) (appellant waived his assignment of error on appeal because he did not obtain a ruling from the trial court on his pretrial motion to dismiss); Duva v. Duva, 55 Va.App. 286, 299, 685 S.E.2d 842, 849 (2009) (“Because the record does not show that the trial court ruled on appellant’s argument, there is no ruling of the trial court for this Court to review on appeal.”); Schwartz v. Commonwealth, 41 Va.App. 61, 71, 581 S.E.2d 891, 896 (2003) (because the trial court never ruled upon appellant’s motion to set aside his convictions, there was no ruling for this Court to review on appeal); Ohree v. Commonwealth, 26 Va.App. 299, 308, 494 S.E.2d 484, 489 (1998) (where the trial court did not rule on appellant’s objection, “there is no ruling for us to review on appeal”); Hogan v. Commonwealth, 5 Va.App. 36, 45, 360 S.E.2d 371, 376 (1987) (because appellant failed to obtain a ruling from the trial court on his argument that lineups were improperly conducted and the evidence of identification was otherwise insufficient, this Court had no ruling of the trial court to review).

Because appellant failed to obtain a ruling from the trial court on her motion for reconsideration of its finding her guilty of contempt within the twenty-one-day period prescribed by Rule 1:1,⁹ she has waived the trial court error she assigns on appeal.

B.

Despite appellant’s failure to obtain a ruling from the trial court on her motion to reconsider its finding her guilty of contempt, the majority concludes that:

[T]he fact that the trial court never ruled on [appellant’s] motion to reconsider or was not made aware of it does not foreclose appellate review of Mrs. Amos’s arguments. This conclusion is driven by a plain language reading of Code § 8.01-384(A), that the absence of such an opportunity to object “shall not thereafter prejudice [a party] ... on appeal.” Concretely, this means that Mrs. Amos may raise arguments on appeal that she did not present at trial.

Supra at 741.

Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a ruling or order at the time it [was] made, the absence of an objection shall not thereafter prejudice him ... on appeal.”

[T]he lack of an “opportunity to object” ... relates to the reason why an objection was not made at the time of the ruling. Thus, the statutory exception [to the contemporaneous objection rule] is subsumed under the “good cause” exception [to Rule 5A:18] because both relate to the reason why an objection was not timely made.

Campbell v. Commonwealth, 14 Va.App. 988, 995-96, 421 S.E.2d 652, 656-57 (1992) (Barrow, J., concurring) (citations omitted).

In Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), the Supreme Court considered whether the trial court violated Nusbaum’s right to due process by summarily convicting him of indirect criminal contempt. The Court held that Nusbaum waived his due process argument on appeal because he did not afford the trial court the opportunity to rule on that assertion, as required by Rule 5:25. The Court concluded that the record on appeal did not present

a situation where the circuit court prevented Nusbaum from voicing his objections, asking the court to rule on them, or requesting the court to reconsider a ruling. See Code § 8.01-384 (“if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him ... on appeal”).

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While Nusbaum was perhaps surprised when the circuit court found him guilty of contempt of court, he subsequently stated his due process objections and had ample opportunities to ask the circuit court to rule on them.

Id. at 406, 641 S.E.2d at 505 (emphasis added). Despite the Supreme Court’s acknowledgment that Nusbaum was “surprised” by the trial court’s ruling, and its acknowledgment that his surprise excused his failure to object at the time the ruling was made, the Supreme Court found that he waived his arguments on appeal because he subsequently gained the opportunity to ask the trial court to rule on his objections, yet he failed to do so. Cf. Jones v. Commonwealth, 194 Va. 273, 280, 72 S.E.2d 693, 697 (1952) (Supreme Court reached the merits of defendants’ appeal despite their failure to contemporaneously object to the trial court’s ruling because defendants were “taken by surprise at the occurrence” and they “assigned the action of the trial court as the basis for their motion to set aside the verdict ” (emphasis added)).

Stated differently, the saving provision of Code § 8.01-384(A) protects an appellant from waiving on appeal only those objections that could not be made at the time of the ruling and that could not be cured by a post-conviction motion.¹⁰ Clearly, the record shows that, even though she may have been taken aback by the trial court’s ruling, not only did appellant have an opportunity to object by way of asking the trial court to reconsider its contempt finding, she actually filed a written motion asking the trial court to do so well within the twenty-one-day period prescribed by Rule 1:1. Although Code § 8.01-384(A) protects a party from prejudice on appeal in the event that she is prevented from asserting a contemporaneous objection in the trial court, an appellant still may be prejudiced by her failure to obtain a ruling from the trial court on a later filed objection. Many procedural default cases take into account that, with or without a good cause explanation for not making an earlier objection, the “defendants have offered no explanation for their [later] failure to bring their objections to the attention of the trial court before the judgment order became final.” Faizi-Bilal Int’l Corp. v. Burka, 248 Va. 219, 223, 445 S.E.2d 125, 127 (1994).¹¹

“Simply put, a defendant may not rely upon Code § 8.01-384(A) to preserve for appeal an issue that he never allowed the trial court to rule upon.” Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 84, 688 S.E.2d 199, 210 (2010). Here, appellant had ample time to seek a ruling on her motion asking the trial court to reconsider its finding her in summary contempt, yet she failed to do so.¹² Even assuming, without deciding, that the trial court prevented appellant from making a contemporaneous objection to its finding her guilty of summary contempt, her failure to obtain a ruling from the trial court on her motion to reconsider that finding bars this Court’s consideration of her argument on appeal.¹³

C.

In my view, appellant failed to preserve her assignments of trial court error for appeal. However, appellant’s request that this Court invoke the “good cause” or “ends of justice” exception to Rule 5A:18 to reverse her conviction must be considered.

The ends of justice exception “is narrow and is to be used sparingly.” Brown v. Commonwealth, 8 Va.App. 126, 132, 380 S.E.2d 8, 11 (1989). “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997) To establish that a clear miscarriage of justice has occurred, appellant must demonstrate that she was found guilty of conduct that did not constitute contempt, or the record must affirmatively prove that an element of the offense did not occur. Id. at 221-22, 487 S.E.2d at 273.

Appellant has not demonstrated that she was found guilty of conduct that was not contempt, and the record does not show that an element of contempt, a common law offense, did not occur. The Supreme Court has long held that perjury may be punished as contempt, so long as there is “added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty.” Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 340, 63 L.Ed. 656 (1919). The trial court explicitly found that appellant lied under oath. It found that she obstructed the court in the administration of its duties by writing a falsified letter to the Commonwealth’s Attorney that implored the trial court’s assistance and invoked its jurisdiction. Accordingly, I

would decline to apply the ends of justice exception to reach the merits of appellant’s assignment of error.¹⁴

Similarly, I find no basis to apply the good cause exception to Rule 5A:18. “ ‘Good cause’ relates to the reason why an objection was not stated at the time of the ruling.” Campbell, 14 Va.App. at 996, 421 S.E.2d at 656 (Barrow, J., concurring). When an accused has ample opportunity to bring a purported error to the trial court’s attention but fails to do so, the good cause exception does not apply. Andrews v. Commonwealth, 37 Va.App. 479, 493-94, 559 S.E.2d 401, 409 (2002). Here, nothing prevented appellant from objecting after the trial court found her guilty of contempt. Even if the circumstances were such that she was taken aback by the trial court’s ruling, she filed a post-conviction motion asking the trial court to reconsider its ruling within the twenty-one-day period prescribed by Rule 1:1. However, appellant deprived the trial court of its jurisdiction to consider her motion for reconsideration by filing a notice of appeal to this Court on the same day she filed her motion asking the trial court to reconsider its finding her guilty of contempt. See McCoy v. McCoy, 55 Va.App. 524, 528, 687 S.E.2d 82, 84 (2010) (“When a party files a notice of appeal, that notice ‘effectively transfers jurisdiction from the lower court to the appellate court and places the named parties within the jurisdiction of the appellate court.’ ” (quoting Watkins v. Fairfax County Dep’t of Family Servs., 42 Va.App. 760, 771, 595 S.E.2d 19, 25 (2004))); Walton v. Commonwealth, 256 Va. 85, 95, 501 S.E.2d 134, 140 (1998) (once an appellate court acquires jurisdiction of a case, the jurisdiction of the trial court from which the appeal was taken ceases). Because appellant moved the trial court to reconsider its finding her guilty of contempt, but deprived the trial court of the opportunity to rule on her motion, the good cause exception to Rule 5A:18 does not apply.

Accordingly, I find no basis to invoke either the “good cause” or “ends of justice” exception to Rule 5A:18 to reach the merits of appellant’s argument on appeal.

D.

Because appellant failed to preserve her assignments of trial court error for appeal, and because neither the “ends of justice” nor “good cause” exceptions to Rule 5A:18 are applicable, I would affirm the judgment of the trial court finding appellant guilty of contempt.

7 . At the request of the Office of the Commonwealth’s Attorney of Arlington County, the trial court issued the order for appellant’s former husband to appear and show cause why his probation should not be revoked. The trial court issued its show cause order after the Commonwealth’s attorney forwarded a copy of appellant’s letter to the trial court, detailing her allegations of husband’s egregious and threatening conduct and asserting he violated the conditions of his probation.

8 . Appellant asserted in her motion that the evidence was insufficient for the trial court to find her guilty of contempt, in violation of Code § 18.2-456(1), and that the trial court deprived appellant of her right to due process by finding her guilty of contempt in a summary proceeding.

9 . Rule 1:1 provides, in pertinent part, that the trial court may modify, vacate, or suspend any final order of the trial court within "twenty-one days after the date of entry, and no longer.”

10 . For example, an appellant's failure to proffer the evidence she expected to obtain from excluded testimony would normally foreclose an appellate court from determining whether the trial court committed reversible error by disallowing the testimony. See, e.g., Ray v. Commonwealth, 55 Va.App. 647, 649, 688 S.E.2d 879, 880 (2010) (" 'When an appellant claims a trial court abused its discretion in excluding evidence, we cannot competently determine error—much less reversible error—without a proper showing of what that testimony would have been.' ” (quoting Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977))). If, however, the record showed that the trial court prohibited a defendant from making a proffer, the saving provision of Code § 8.01-384(A) would permit appellate review of whether the trial court committed reversible error by refusing to allow the defendant to introduce the expected evidence. See, e.g., Edwards v. Commonwealth, 19 Va.App. 568, 572-73, 454 S.E.2d 1, 3 (1995) ("[U]nder the particular facts of this case, appellant’s failure to proffer does not preclude our consideration of this issue.... [T]here was no way appellant could have proffered what a potential cross-examination answer would have been until he laid the initial foundation,” which the trial court erroneously refused to permit him to do.). In addition, Code § 8.01-384(A) would permit appellate review of objections to improper argument before a jury and objections to the admissibility of evidence, both of which ordinarily must be made contemporaneously or are forever waived, if the record showed that the trial court foreclosed a litigant from making the objection at the time the error occurred.

11 . The same is true in workers' compensation cases. For example, a claimant may make two arguments in favor of an award of compensation. The commission, in turn, may issue an opinion denying coverage on one of the two grounds but refusing to address the second ground. By issuing a final opinion without a hearing, the commission effectively precludes a contemporaneous objection to its error. The saving provision of Code § 8.01-384(A), like the "good cause” exception to Rule 5A:18, excuses the claimant for not objecting “at the time [the ruling] [was] made” because it was impossible for the claimant to do so. However, the appeal still fails if the claimant neglected to file an after-the-fact motion to reconsider. See Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) ("Finally, the requirement that a litigant file a motion for rehearing or reconsideration to preserve an issue for appeal under these circumstances is not a new requirement. The Court of Appeals has consistently held that the failure to file such motions under these circumstances bars raising the issue on appeal.”); Hodnett v. Stanco Masonry, Inc., 58 Va.App. 244, 253, 708 S.E.2d 429, 434 (2011) (this Court refused to consider an issue on appeal because claimant did not file a motion to reconsider after the commission failed to address an issue he raised for review).

12 . The majority cites Rule 4:15(d) in support of its assertion that "a litigant has no right to present oral argument on a motion to reconsider. Instead, such arguments are presented at the discretion of the trial court.” Notably, Rule 4:15(d) is a rule of civil procedure that, on its face, relates only to "all civil case motions.” There is no corollary rule for criminal case motions that prohibits oral argument on a motion for reconsideration except "at the request of the court.” Rule 4:15(d); see generally Part 3A of the Rules of the Supreme Court of Virginia.

13 . That appellant initially appeared before the trial court as a witness at the show cause hearing she initiated does not excuse her failure to preserve her argument that the trial court erred by finding her guilty of contempt. See, e.g., Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656 (1987) ("p?]he 'right of self-representation is not a license' to fail 'to comply with the relevant rules of procedural and substantive law.’ ” (quoting Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975))).

14 . Appellant asserts that the trial court erred by finding her guilty of contempt in a summary proceeding. However, whether the trial court erred by punishing her summarily is merely a question of procedure; it has no bearing on whether the substantive elements of the contemptible conduct, here perjury and obstruction of justice, occurred.