William Edward Lalik v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 9, 2000
• Docket: 1855993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia

WILLIAM EDWARD LALIK MEMORANDUM OPINION * BY v. Record No. 1855-99-3 JUDGE RICHARD S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge

Peter H. White (Leisa Kube Ciaffone; Hunton & Williams; Gentry, Locke, Rakes & Moore, on briefs), for appellant.

Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General; Jeffrey S. Shapiro, Assistant Attorney General, on brief), for appellee.

William Edward Lalik (defendant) was convicted in a bench

trial for contempt of court in violation of Code § 18.2-456(5).

On appeal, he challenges the sufficiency of the evidence to prove

the existence of "a definite and express order" of the court and

the requisite intent to disobey such alleged order. Finding no

error, we affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. In reviewing the sufficiency of the evidence, we consider the

record "'in the light most favorable to the Commonwealth, giving

it all reasonable inferences fairly deducible therefrom. In so

doing, we must discard the evidence of the accused in conflict

with that of the Commonwealth, and regard as true all the credible

evidence favorable to the Commonwealth . . . .'" Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(citation omitted). The credibility of the witnesses, the weight

accorded the testimony, and the inferences drawn from the proven

facts are matters to be determined by the fact finder. See Long

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by evidence. See Code § 8.01-680.

I.

On the afternoon of July 27, 1999, defendant, a Roanoke

elementary school principal, appeared voluntarily before the court

as a witness for a local teacher, then on trial for "solicitation

of a felony." Defendant had previously advised both the teacher

and his attorney that defendant was required to attend a meeting

elsewhere at 3:00 p.m. However, with the "court appearance

supposed to be around 1:00 p.m.," defendant "thought he could do

both."

Defendant arrived at the courthouse several minutes before

1:00 p.m. and was first called to testify at "approximately"

- 2 - 1:45 p.m. After several questions on direct examination, the

court interrupted the proceedings briefly to consider an objection

by the Commonwealth, releasing defendant from the witness stand

with the following admonition:

Mr. Lalik, if you'll step down and step outside and we'll call you back in, in just a second.

Within five to ten minutes, around 2:00 p.m., defendant was

recalled and resumed the witness stand. However, further issues

pertaining to his testimony soon confronted the court,

necessitating a second interruption of trial at "about"

2:10 p.m. Again, defendant was released from the witness box

and instructed by the court:

Mr. Lalik, would you please step down and step outside. We'll call you back in one--- in just a second.

After waiting outside the courtroom for approximately ten

minutes, defendant advised Roanoke Sheriff's Sergeant J.P. Dame

of his 3:00 p.m. appointment and requested Dame to "see . . .

the judge and . . . defense attorney" and "let them know [he]

really needed to leave." In response, Dame recalled to

defendant that "the Judge had basically told him to go outside

and wait a minute and he would get him back . . . as soon as

possible." Nevertheless, Dame acceded to the request, spoke

with the trial judge, and reported to defendant that "it would

be a few minutes."

- 3 - Dame testified that defendant then "said something about

leaving," and Dame answered, "[you don't] want to ride in a

one-way brown taxi . . . and sort of laughed." Defendant

admitted responding, "That sounds like a great ride, something I

wouldn't want to do." Dame explained that his comment

referenced "being arrested and brought to jail if [defendant]

didn't wait . . . and testify," and defendant acknowledged that

he "understood it" to mean "somebody would . . . come after me."

However, when "nothing [had] happened by 2:40 p.m., defendant,

although admittedly "familiar with court proceedings" and aware

he "had not . . . completed [his] testimony," departed the

courthouse for his meeting. 1

At a later hearing on the instant offense, defendant

recalled that he "didn't understand" the court's instructions to

him "as an order," rather "just a statement" "to go out and

wait." He further testified that he construed Dame's mention of

a "brown taxi" as "light conversation," not a "serious . . .

possibility." Defendant acknowledged "concern[] about leaving

and not finishing the testimony . . . that was important" but

was "conflicted" by "something important in [his] own life . . .

to deal with."

1 As a result of defendant's absence from the criminal trial, the court subsequently declared a mistrial and initiated the subject prosecution.

- 4 - II.

Code § 18.2-456(5), in pertinent part, invests "courts and

judges" with the power of contempt, together with summary

punishment, for "[d]isobedience . . . of . . . [a] witness . . .

to any lawful . . . decree or order of the court." Thus, "[a]

trial court 'has the authority to hold an offending party in

contempt for acting in bad faith or for willful disobedience of

its order.'" Alexander v. Alexander, 12 Va. App. 691, 696, 406

S.E.2d 666, 669 (1991) (citation omitted). This "principle

applies to the oral orders, commands and directions of the

court" as well as written orders. Robertson v. Commonwealth,

181 Va. 520, 537, 25 S.E.2d 352, 359 (1943). An adjudication of

contempt will be reversed "only if we find that [the court]

abused its discretion." Barnhill v. Brooks, 15 Va. App. 696,

704, 427 S.E.2d 209, 215 (1993).

Defendant first argues that the words spoken by the judge,

"please step down and step outside[,] [w]e'll call you back

. . . in just a second" did not constitute an order. He relies

upon French v. Pobst, 203 Va. 704, 127 S.E.2d 137 (1962), in

support of the principle that "'[t]he process for contempt lies

for disobedience of what is decreed, not for what may be

decreed'" and that "there must be an express command or

prohibition." Id. at 710, 127 S.E.2d at 141 (citation omitted).

However, the facts of the instant appeal are easily

- 5 - distinguishable from French, an erroneous contempt conviction

resulting from a failure to pay money, despite the absence of a

predicate "command or direction." Id.

Here, the court's command to defendant was clear: "step

down and step outside." The court will "call you back . . . in

just a second." Significantly, a like directive by the court,

which preceded the subject order by only minutes, had been

honored by defendant and followed by resumption of his

testimony. In both instances, although the court did not

designate the instruction as an order that defendant "wait," the

import of the words is made manifest by both definition and

context. Clearly, nothing in the record would suggest to

defendant that he was free to elect whether to go or stay. 2 The

court, therefore, correctly concluded, "as a matter of fact[,]

that it was a valid order of the court."

Thus, confronted with an unambiguous command by the court,

the evidence supports the further finding that defendant

intentionally disobeyed the order. The record discloses that he

appreciated the importance of his presence to the proceedings,

was aware that his testimony was incomplete and recall to the

2 Defendant's argument that the absence of a subpoena compromises the sanctity of the order is without merit. Persons "present in court may . . . be called upon to testify although . . . not . . . served with a subpoena," thereby becoming witnesses before the court and subject to attendant jurisdiction. Robertson, 181 Va. at 532, 25 S.E.2d at 357.

- 6 - witness stand was eminent and that consequences would result if

he absented himself from the courthouse. Such circumstances

provide ample support to the court's factual finding that

defendant "understood what was going on" and "knew [he was]

violating the court's order."

Accordingly, we find that the evidence supported the

conviction and affirm the trial court.

Affirmed.

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