Gilman v. Commonwealth

628 S.E.2d 54, 48 Va. App. 16, 2006 Va. App. LEXIS 130

• Court: Court of Appeals of Virginia
• Decided: April 4, 2006
• Docket: Record 1928-04-3
• Status: Published

Opinions

McCLANAHAN, Judge.

Tina Gilman appeals her conviction for contempt of court. She argues that on appeal of her contempt conviction in juvenile and domestic relations district court (JDR court), the circuit court erred in admitting into evidence a Certificate of Conviction (certificate) prepared by the JDR judge pursuant to Code § 18.2-459. The certificate outlined the circumstances that led the JDR judge to hold Gilman in contempt. Gilman claims the admission of the certificate violated her Sixth Amendment right to confrontation. We disagree and affirm her conviction.

I. Background

The facts involved in this appeal are not in dispute. Gilman was convicted of contempt in the Henry County JDR Court and appealed to the Henry County Circuit Court. The circuit court admitted and considered the certificate prepared by the JDR judge pursuant to Code § 18.2-459.¹

The certificate indicates that appellant was convicted of contempt for “[misbehavior” and “[disobedience or resistance.” More specifically, the certificate states that the JDR judge

certifies pursuant to Virginia Code § 18.2-459 that the defendant named herein is IN CONTEMPT under Code § 18.2-456 and is punished summarily for contempt under Code § 18.2-458 for the following: Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice; ... [and] Disobedience or resistance of ... [a] person to any lawful process, judgment, decree or order of the court, including failure to appear or intentional obstruction of a witness under Code § 19.2-267.

The certificate also sets forth the “circumstances” of the conviction. Gilman was before the court because her daughter was in foster care, and the “evidence” showed that Gilman tested positive for illegal drugs two months earlier. Thus, “the court ... ordered a drug screen. [Gilman] said she needed something to drink and then left the building.” For this contempt, Gilman was fined by the JDR court twenty-five dollars and sentenced to ten days in jail. The certificate is signed by the JDR judge.

The circuit court judge admitted the certificate over Gilman’s Sixth Amendment objection. Gilman presented no evidence in her defense. Accordingly, the circuit court convicted Gilman of contempt and sentenced her to five days in jail.²

II. Analysis

Gilman argues she was entitled to a trial de novo in the circuit court on her appeal from the JDR court, pursuant to Code § 16.1-136, and the circuit court’s admission of the certificate, pursuant to Code § 18.2-459, over her objection, violated her right to confront witnesses as guaranteed by the Sixth Amendment.

Specifically, Gilman maintains she was “not afforded an opportunity to confront the [JDR] judge who prepared the certificate. Without an opportunity to cross-examine [the judge], this testimonial hearsay should have been excluded” based on the United States Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Court held that the Confrontation Clause³ does not permit the introduction of out-of-court testimonial evidence at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1373-74.⁴

In this case, the circuit court admitted into evidence the certificate setting forth the circumstances of Gilman’s contempt in accordance with the express terms of Code § 18.2-459. Challenging the constitutionality of Code § 18.2-459, Gilman contends that the certificate constituted out-of-court testimonial evidence in violation of the Confrontation Clause.

In our analysis of Gilman’s constitutional challenge to Code § 18.2-459, we are guided by basic principles of judicial review. “[A]ll actions of the General Assembly are presumed to be constitutional.” Etheridge v. Medical Ctr. Hosps., 237 Va. 87, 94, 376 S.E.2d 525, 528 (1989). “This presumption is ‘one of the strongest known to the law.’ ” Boyd v. County of Henrico, 42 Va.App. 495, 507, 592 S.E.2d 768, 774 (2004) (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). “Under it, courts must ‘resolve any reasonable doubt’ regarding the constitutionality of a law in favor of its validity.” Id. (quoting In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003)). “ ‘To doubt is to affirm.’ ” Id. (quoting Peery v. Bd. of Funeral Dirs., 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961)).

It is well established that the Confrontation Clause is limited to trials in criminal prosecutions, whereas a summary proceeding for a petty direct contempt is neither a trial nor a criminal prosecution within the scope of the Sixth Amendment. Nor is there a constitutional right of appeal from such a proceeding. In this instance, however, the General Assembly has created a statutory right of appeal from JDR court to circuit court, where the certificate from the JDR court is allowed into evidence and the JDR judge is prohibited from being called as a witness. The proceeding in circuit court is thus a unique statutory hearing requiring a de novo determination, not a trial de novo, as in other appeals from district courts. As such, the admission of the certificate pursuant to Code § 18.2-459 did not implicate any of Gilman’s Confrontation Clause rights, and we affirm the trial court.

JDR Court Proceeding

The common law is clear that “[cjontempt proceedings are sui generis.” Wilson v. Commonwealth, 23 Va.App. 318, 323, 477 S.E.2d 7, 9 (1996) (internal quotation marks and citation omitted). As explained in Myers v. United States, 264 U.S. 95, 104-05, 44 S.Ct. 272, 273, 68 L.Ed. 577 (1924), “[wjhile contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not ‘criminal prosecutions’ within the Sixth Amendment or common understanding.”⁵ The “confrontation” guaranteed by the Sixth Amendment “is confrontation at trial,” Nelson v. O’Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971), and it is well settled that one who commits a petty direct contempt of court is not entitled to a trial, United Mine Workers of America v. Bagwell, 512 U.S. 821, 832, 114 S.Ct. 2552, 2559-60, 129 L.Ed.2d 642 (1994).

Appellant was convicted in the JDR court under Code § 18.2-456 for a direct summary contempt.⁶ The maximum punishment for a violation under this statute is a fíne of $250 or imprisonment for 10 days,⁷ thus constituting a petty criminal contempt.⁸ In such a petty direct summary contempt, “ ‘[w]here the contempt is committed in the presence of the court, it is competent for it to proceed upon its own knowledge of the facts, and to punish the offender without further proof, and without issue or trial in any form.’ ” Davis v. Commonwealth, 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978) (quoting Burdett v. Commonwealth, 103 Va. 838, 845-46, 48 S.E. 878, 880-81 (1904)); see also In re: Chaplain, 621 F.2d 1272, 1276 (4th Cir.1980) (“[T]he very nature of the summary procedure contemplates that citation, conviction and, ordinarily, punishment, will be accomplished in one fell swoop.”). This is due to the fact that “[c]ontempt is a singular proceeding in our jurisprudence which implicates the trial court itself in both the offense and its adjudication and requires treatment suitable to this anomaly.” Baugh v. Commonwealth, 14 Va.App. 368, 372, 417 S.E.2d 891, 894 (1992).⁹ That a court may punish one who commits a direct contempt of court without the rights and benefits accorded a defendant in a trial

is ... settled doctrine in the jurisprudence both of England and of this country, [and] never supposed to be in conflict with the liberty of the citizen____ [S]uch power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.

Ex Parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405 (1888). This power to convict and punish summarily nevertheless “accords due process of law.” Fisher v. Pace, 336 U.S. 155, 159-60, 69 S.Ct. 425, 427, 93 L.Ed. 569 (1949); see also Pounders v. Watson, 521 U.S. 982, 991, 117 S.Ct. 2359, 2363-64, 138 L.Ed.2d 976 (1997) (per curiam) (upholding petty direct summary contempt conviction by state trial court upon due process challenge).¹⁰

Circuit Court Proceeding

The defendant has no constitutional right of appeal from a contempt conviction in JDR court. The United States Supreme Court has never held that the states are constitutionally required to establish avenues of appellate review of criminal convictions. M.L.B. v. S.L.J., 519 U.S. 102, 110, 117 S.Ct. 555, 560-61, 136 L.Ed.2d 473 (1996); Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

In this instance, however, the General Assembly has created a statutory right of appeal pursuant to Code § 16.1-296(A). That statute provides that any final order or judgment of a JDR court may be appealed to the circuit court. See Walker v. Dep't of Pub. Welfare, 223 Va. 557, 562-63, 290 S.E.2d 887, 890 (1982). Where that appeal is taken by an adult on a conviction of an offense within the jurisdiction of the JDR court, the appeal shall be dealt with as an appeal from a general district court,¹¹ except as limited by Code §§ 18.2-459 and 19.2-271.¹²

In contempt cases, Code §§ 16.1-136 and 18.2-459 explain and establish the rights of the appellant in the circuit court.¹³ Code § 16.1-136 provides that the appeal “shall be heard de novo in the appellate [circuit] court and shall be tried without formal pleadings in writing----” Code § 18.2-459 provides that the circuit court judge “may hear the case upon the certificate and any legal testimony adduced on either side____”¹⁴ And finally, Code § 19.2-271 specifically prohibits the calling of a judge as a witness. Epps v. Commonwealth, 47 Va.App. 687, 707, 626 S.E.2d 912, 921 (2006) (en banc) (Record Nos. 0591-04-2 and 2303-02-2) (judge may not testify in matter previously before him).¹⁵ As such, the proceeding in circuit court is a unique statutory hearing requiring a de novo determination, not a trial de novo, as in other appeals from district courts.¹⁶

“[A] statute will be construed in such a manner as to avoid a constitutional question wherever this is possible.” Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940). Furthermore, the

“[l]egislature is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.”

Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)); see also Washington v. Commonwealth, 46 Va.App. 276, 281, 616 S.E.2d 774, 777 (2005) (en banc). The common law is clear that “[c]ontempt proceedings are sui generis,” Wilson, 23 Va.App. at 323, 477 S.E.2d at 9 (internal quotation marks and citation omitted), and are “not ‘criminal prosecutions’ within the Sixth Amendment.” Myers, 264 U.S. at 104-05, 44 S.Ct. at 273.

In addition, “ ‘[w]hen the legislature comes to pass a new law or to amend an old one, it is presumed to act with full knowledge of the law as it stands bearing upon the subject with which it proposes to deal.’ ” Powers v. County School Board, 148 Va. 661, 668-69, 139 S.E. 262, 264 (1927) (quoting School Board v. Patterson, 111 Va. 482, 487-88, 69 S.E. 337, 339 (1910)). Code § 18.2-459, the right of appeal to the circuit court allowing the use of the JDR certificate, was amended by the General Assembly as recently as 1975, twenty-five years after Code §§ 16.1-136,16.1-296(A), and 19.2-271 were included in the Code of 1950. “It is elemental that the legislature is presumed to know the law in effect when it enacts subsequent laws.” Tharpe v. Commonwealth, 18 Va.App. 37, 43, 441 S.E.2d 228, 232 (1994). “ ‘Two statutes which are closely interrelated must be read and construed together and effect given to all of their provisions. They should be construed, if possible, so as to harmonize, and force and effect should be given the provisions of each.’ ” Id. (quoting ACB Trucking, Inc. v. Griffin, 5 Va.App. 542, 547-48, 365 S.E.2d 334, 337-38 (1988)).

Because the JDR court proceeding is not a criminal prosecution within the scope of the Sixth Amendment, there is no constitutional right to trial at the JDR court, no constitutional right of appeal, a statutory prohibition against calling a judge as a witness, and because the General Assembly provided a statutory right of appeal with the caveat that a certificate from the JDR court could be used in that appeal, the General Assembly could not have intended to give birth to a constitutional right to cross-examine the JDR judge at the appeal—a right that the defendant would not otherwise have in the JDR court or the circuit court in a petty direct summary contempt proceeding.

Accordingly, in a petty direct summary contempt appeal, Code § 18.2-459 does not implicate the rights of an appellant under the Confrontation Clause.

Affirmed.

1 . Code § 18.2-459 provides:

Any person sentenced to pay a fine, or to confinement, under § 18.2— 458, may appeal therefrom to the circuit court ... in which the sentence was pronounced.... If such appeal be taken, a certificate of the conviction and the particular circumstances of the offense, together with the recognizance, shall forthwith be transmitted by the sentencing judge to the clerk of such circuit court, who shall immediately deliver the same to the judge thereof. Such judge may hear the case upon the certificate and any legal testimony adduced on either side, and make such order therein as may seem to him proper.

2 . Although the Statement of Facts submitted in this case indicates the defendant was sentenced to a jail term of ten days, the August 10, 2004 circuit court order imposed a sentence of five days. The order controls. See Bennett v. Commonwealth, 33 Va.App. 335, 342-46, 533 S.E.2d 22, 26-28 (2000) (en banc); Kern v. Commonwealth, 2 Va.App. 84, 88, 341 S.E.2d 397, 400 (1986).

3 . The Sixth Amendment’s Confrontation Clause provides that ”[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const, amend. VI.

4 . In redefining the scope of the Confrontation Clause, Crawford overruled the portion of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), that had authorized admission of hearsay evidence based on whether it fell within a " 'firmly rooted hearsay exception’ ” or bore " 'particularized guarantees of trustworthiness.’ ” Crawford, 541 U.S. at 60, 124 S.Ct. at 1369 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. at 2539).

5 . See also Ex Parte Grossman, 267 U.S. 87, 117, 45 S.Ct. 332, 336, 69 L.Ed. 527 (1925) ("Contempt proceedings are sui generis because they are not hedged about with all the safeguards provided in the bill of rights for protecting one accused of ordinary crime from the danger of unjust conviction.”); Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960) (explaining that challenges to the fairness of criminal contempt proceedings are "derivefd] from the Due Process Clause and not from one of the explicitly defined procedural safeguards of the Constitution”); Sassower v. Sheriff, 824 F.2d 184, 188-89 (1987) ("The constitutional standard governing criminal contempt proceedings is not derived from the specific requirements of the sixth amendment.... Although we are bound by Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477[, 1481], 20 L.Ed.2d 522[] (1968), to recognize that 'criminal contempt is a crime in the ordinary sense,’ the distinction between petty criminal contempt and serious contempt crimes has remained vital since that case was decided . . . .The circuit courts continue to recognize the vitality of the constitutional distinction between serious crimes and criminal contempt.” (citations omitted)).

6 . Appellant does not contest the characterization of the conviction as direct contempt.

7 . Code § 18.2-458.

8 . Our discussion is limited to petty contempt violations, those punishable or punished by no more than six months in jail. Serious contempt violations warrant a jury trial. See Codispoti v. Pennsylvania, 418 U.S. 506, 511-12, 94 S.Ct. 2687, 2690-91, 41 L.Ed.2d 912 (1974); see also Bloom, 391 U.S. at 198, 88 S.Ct. at 1480. The dissent makes no distinction between petty direct summary contempt and other criminal contempts. Such an analysis necessarily leads to the erroneous conclusion that Crawford implicitly abolishes petty direct summary contempt proceedings and thereby renders unconstitutional Chapter 10, Article 5 of Title 18.2 of the Code (Contempt of Court) (Code §§ 18.2-456 through -459), and Code § 19.2-271 (prohibiting judicial officers from testifying).

The dissent's analysis, if applied to federal statutes, would also abolish summary proceedings for petty direct contempt in federal courts. See 18 U.S.C. § 401 (statutory authority to federal judges); 28 U.S.C. § 636(e)(2) (statutory authority to federal magistrates); Fed.R.Crim.P. 42(b) (summary procedure for direct criminal contempt).

Without the power to adjudicate such contempt summarily, "judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.” Ex Parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405 (1888).

9 . See also Bagwell, 512 U.S. at 832, 114 S.Ct. at 2560 (”[P]etty, direct contempts in the presence of the court traditionally have been subject to summary adjudication.”); Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925) (noting that in a direct contempt situation "[t]here is no need of evidence or assistance of counsel before punishment, because the court has seen the offense”); Carter v. Commonwealth, 96 Va. 791, 807, 32 S.E. 780, 782 (1899) ("[I]t is a necessary incident to every court of justice, whether of record or not, to fíne and imprison for a contempt acted in the face of the court.” (internal quotation marks and citation omitted)).

10 . In upholding the petty direct summary contempt conviction in Pounders, the United States Supreme Court explained that "states must have latitude in determining what conduct so infects orderly proceedings” that its summary adjudication as contempt will be permitted. Pounders, 521 U.S. at 991, 117 S.Ct. at 2363.

11 . Code§§ 16.1-132 through 16.1-137.

12 . Code § 16.1-296(E).

13 . The Baugh Court’s characterization of the proceeding in circuit court pursuant to Code § 18.2-459 is not dispositive of this case. Baugh, 14 Va.App. at 372, 417 S.E.2d at 894. Though this Court in Baugh stated that the § 18.2-459 requirements are consistent with "the de novo nature of the trial,” the Court rejected a Confrontation Clause challenge to Code § 18.2-459, while recognizing that a petty direct contempt "requires treatment suitable” to its nature as an "anomaly" under the common law. Id. at 372, 373, 417 S.E.2d at 894 (emphasis added). In doing so, the Court implicitly recognized that the proceeding was not in the "nature” of a full-blown trial as other appeals from district court to circuit court. In addition, the holding in Baugh was based on the pre-Crawford "reliability” standard of Confrontation Clause analysis for determining admission of out-of-court testimonial evidence.

14 . We note that, much like Code § 18.2-459’s certificate requirement, Rule 42(b) of the Federal Rules of Criminal Procedure requires a federal district court to prepare a contempt order reciting the facts of a summary contempt for purposes of appeal. See Sacher v. United States, 343 U.S. 1, 11-13, 72 S.Ct. 451, 456-57, 96 L.Ed. 717 (1952) (affirming trial judge's summary adjudication of direct criminal contempt pursuant to Fed.R.Crim.P. 42(a) (now Rule 42(b)) upon judge’s certification of facts constituting direct contempt); cf. Kotowski v. Kotowski, 3 Ill.App.3d 231, 278 N.E.2d 856, 857 (1971) ("Since the act was [a direct contempt], evidence is unnecessary and no record need be made. However, the court must enter a written order finding contempt and reciting fully, clearly and specifically the facts from which the contempt arose in order to preserve a meaningful right of appeal.” (citations omitted)).

15 . "We have repeatedly held that an appeal to the circuit court from a court not of record under Code § 16.1-136 ... grants to a litigant every advantage which would have been his had the case been tried originally in such court.” Walker, 223 Va. at 563, 290 S.E.2d at 890 (citation omitted); see also Fairfax Co. Dep't of Family Servs. v. D.N., 29 Va.App. 400, 406, 512 S.E.2d 830, 832 (1999); Peple v. Peple, 5 Va.App. 414, 419, 364 S.E.2d 232, 236 (1988). There is no "advantage” of confronting one’s accusers in a district court contempt proceeding due to the fact that it is the court itself that is the accuser. The right of confrontation exists neither at the district court level nor at the circuit court level, given the distinctive circumstances of petty direct summary contempt proceedings. In such proceedings, “ 'the otherwise inconsistent functions of prosecutor, jury and judge mesh into a single individual.’ ” United States v. Neal, 101 F.3d 993, 997 (4th Cir.1996) (quoting Sandstrom v. Butterworth, 738 F.2d 1200, 1209 (11th Cir.1984)).

16 . Though "de novo ” in certain Acts of the General Assembly means the circuit court disregards the judgment of the court below and hears "evidence anew and new evidence,” effectively conducting a new trial on the merits, Fairfax Co. Dep't of Family Servs., 29 Va.App. at 406, 512 S.E.2d at 832, in the case of a petty direct summary contempt proceeding under the above-referenced statutes, the General Assembly specifically limited the procedures applicable to the “de novo " determination by the circuit court.

Code § 18.2-459 provides that, in an appeal of a contempt finding from general district court, the circuit court "may hear the case upon the certificate and any legal testimony adduced on either side, and make such order therein as may seem to him proper.” The circuit court’s review of the certificate is analogous to the review of a magistrate judge’s report in federal court, whereby, pursuant to 28 U.S.C. § 636, a magistrate judge may conduct hearings and submit his findings and recommendations to the district court. If either party objects to the findings and recommendations, the report is reviewed de novo by the district court judge. 28 U.S.C. § 636(b)(1)(C). In doing so, the district court judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]," and "may also receive further evidence.” Id. Likewise, an appeal of a contempt conviction is reviewed de novo, and § 18.2-459 does not require the circuit court to accept the certificate of conviction as fact; it merely allows the certificate to be considered by the court, just as a certified prior conviction, DMV record, or court order would be considered. The circuit court judge can certainly ignore the judgment of the JDR court in his de novo determination. The statute simply allows the circuit court judge to consider the certificate in his own de novo determination of the legal question. Cf. United States v. Raddatz, 447 U.S. 667, 683-84, 100 S.Ct. 2406, 2416-17, 65 L.Ed.2d 424 (1980) (affirming federal district court’s de novo determination of federal magistrate’s recommendation regarding a suppression motion). A defendant has the opportunity to present his or her own evidence, as in any other proceeding. There is nothing in the statement of facts before this Court to suggest that Gilman offered any evidence to the trial court or in any way contradicted or challenged the substance of what was set forth in the JDR certificate.

Such limited procedures have been used in other "de novo ” determinations. See, e.g., Grogg v. Commonwealth, 6 Va.App. 598, 606-07, 371 S.E.2d 549, 553 (1988) (circuit court's review of juvenile court order transferring jurisdiction of minor's criminal trial to circuit court); Williams v. Auto Brokers, 6 Va.App. 570, 575, 370 S.E.2d 321, 324 (1988) (full commission’s review of deputy commissioner’s decision in workers’ compensation case); see also School Bd. of Campbell Co. v. Beasley, 238 Va. 44, 48, 380 S.E.2d 884, 887 (1989) (action under Code § 22.1-214(D) regarding disabilities education program where circuit court decides case based on records of administrative proceedings and any additional evidence at the request of either party).