COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued by teleconference
WILLIE HARVEY MIDDLEBROOKS, JR. MEMORANDUM OPINION * BY v. Record No. 1516-01-1 JUDGE NELSON T. OVERTON JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge
Oldric J. LaBell, Jr., for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Willie Harvey Middlebrooks, Jr., appellant, appeals his
convictions for abduction, maiming, robbery and use of a firearm
in the commission of a felony, in violation of Code §§ 18.2-48,
-51, -58, and -53.1 respectively. Appellant contends the trial
court erred by allowing the Commonwealth to elicit testimony
about the existence and details of appellant's juvenile
adjudications of assault and battery. Appellant further argues
that the trial court erred by finding him in contempt of court
and summarily sentencing him, without a jury, to a term of
imprisonment and a fine in excess of that prescribed by law.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. For the reasons that follow, we find the trial court erred by
allowing the Commonwealth to impeach appellant with his prior
juvenile adjudications and the details thereof. We further find
that the trial court erred by summarily sentencing appellant in
excess of the statutory limits.
BACKGROUND
Appellant, appellant's twin brother, and another
individual, named "Yellow," held Nicholas Lawrence against his
will throughout one evening in 1999. Yellow, with appellant's
and his brother's assistance, tortured Lawrence because he would
not give them money. Lawrence testified appellant put a gun to
his head and asked whether Lawrence knew their names. Lawrence
stated he did not. The next morning, accompanied by all three
assailants, Lawrence withdrew money from his bank account and
gave it to them. They then let Lawrence go.
At trial, appellant claimed Yellow threatened him and his
brother, coercing them to participate in the actions against
Lawrence. Appellant also testified he left Newport News because
he had had some trouble in Newport News relating to an incident
in which he "stood up" for Lawrence.
On cross-examination, the Commonwealth asked appellant if
he had had any other trouble in Newport News. Appellant
responded in the negative. The Commonwealth again asked whether
appellant had had any trouble in the area and whether he had a
-2- temper. Appellant again answered in the negative. The
Commonwealth then asked if appellant had ever had a problem with
his temper. Appellant answered he did not. The Commonwealth
proceeded to question appellant, over his objection, about two
prior juvenile adjudications for assault and battery. The trial
court stated appellant had "opened the door" to the inquiry by
stating he did not have a problem with his temper.
At sentencing, appellant said to the assistant
Commonwealth's attorney, "Fuck you, bitch." The trial court
found appellant in contempt of court and summarily sentenced him
to twelve months in jail and a $1,000 fine.
ANALYSIS
Evidence of Prior Juvenile Adjudications
The Commonwealth asked appellant if he had ever had a
problem with his temper and whether he had had any other
problems in Newport News. Appellant answered both inquiries in
the negative. Over appellant's objection, the Commonwealth
proceeded to cross-examine appellant about his prior juvenile
adjudications for assault and battery.
In Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846
(1999), the Commonwealth asked a defense witness whether he had
a history of drug abuse. The witness responded he did not. The
trial court allowed the Commonwealth to cross-examine the
-3- witness with regard to a prior misdemeanor conviction for
distribution of marijuana. This Court found that
"[w]here the purpose of the inquiry is to impeach a witness' veracity, cross-examination concerning a witness' prior convictions is limited to prior felony convictions and convictions for misdemeanors involving moral turpitude." Misdemeanor crimes of moral turpitude are limited to those crimes involving lying, cheating and stealing, including making a false statement and petit larceny.
Id. at 448, 512 S.E.2d at 853.
The Commonwealth's attorney sought to impeach appellant's
veracity with regard to his answers to the questions the
Commonwealth posed. However, assault and battery is not a crime
involving moral turpitude. Further, the assault and battery
offenses were juvenile adjudications. Absent a foundation other
than impeaching appellant's veracity, the trial court should not
have allowed the Commonwealth to pursue this line of
questioning.
As the basis for his ruling, the trial judge stated
appellant "opened the door" to the line of questioning by
stating he did not have a temper. However, appellant did not
deny he had prior convictions, he denied having a temper.
Having assault and battery convictions does not prove one has a
temper. Further, the trial court's reasoning suggests appellant
put his character in evidence by his answer. The Commonwealth
-4- merely elicited the response that appellant did not have a
temper. No inference can be drawn from two assault and battery
convictions as to whether one has a temper or a problem with his
temper.
Additionally, appellant did not "open the door" in his
direct testimony that he was a peaceful person, nor did his
answers to the Commonwealth's questions suggest he was
attempting to show the jury he was a peaceful citizen. If
appellant had raised character evidence of peacefulness, the
Commonwealth might have properly impeached such character
evidence with proof of other crimes. However, as in Newton, the
Commonwealth opened the door to appellant's prior convictions by
asking whether appellant had had any trouble in the community
and with his temper. The trial court erred by allowing the
Commonwealth to cross-examine appellant about the fact of his
prior adjudications and the details of those offenses.
Therefore, we reverse the judgments of conviction for abduction,
maiming, robbery and the three related use of a firearm in the
commission of a felony charges and remand for further
proceedings if the Commonwealth be so advised.
Excessive Penalty for Summary Contempt Conviction
At the conclusion of appellant's sentencing hearing, while
still in the courtroom, appellant stated to the assistant
-5- Commonwealth's attorney, "Fuck you, bitch." The trial judge did
not hear the statement.
Code § 18.2-456(1) provides that a court or judge may find
one in contempt and punish the offender summarily for
"[m]isbehavior in the presence of the court, or so near thereto
as to obstruct or interrupt the administration of justice."
Code § 18.2-457 states that "[n]o court shall, without a jury,
for any such contempt as is mentioned in the first class
embraced in § 18.2-246, impose a fine exceeding $250 or imprison
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Overton Argued by teleconference
WILLIE HARVEY MIDDLEBROOKS, JR. MEMORANDUM OPINION * BY v. Record No. 1516-01-1 JUDGE NELSON T. OVERTON JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge
Oldric J. LaBell, Jr., for appellant.
Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Willie Harvey Middlebrooks, Jr., appellant, appeals his
convictions for abduction, maiming, robbery and use of a firearm
in the commission of a felony, in violation of Code §§ 18.2-48,
-51, -58, and -53.1 respectively. Appellant contends the trial
court erred by allowing the Commonwealth to elicit testimony
about the existence and details of appellant's juvenile
adjudications of assault and battery. Appellant further argues
that the trial court erred by finding him in contempt of court
and summarily sentencing him, without a jury, to a term of
imprisonment and a fine in excess of that prescribed by law.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. For the reasons that follow, we find the trial court erred by
allowing the Commonwealth to impeach appellant with his prior
juvenile adjudications and the details thereof. We further find
that the trial court erred by summarily sentencing appellant in
excess of the statutory limits.
BACKGROUND
Appellant, appellant's twin brother, and another
individual, named "Yellow," held Nicholas Lawrence against his
will throughout one evening in 1999. Yellow, with appellant's
and his brother's assistance, tortured Lawrence because he would
not give them money. Lawrence testified appellant put a gun to
his head and asked whether Lawrence knew their names. Lawrence
stated he did not. The next morning, accompanied by all three
assailants, Lawrence withdrew money from his bank account and
gave it to them. They then let Lawrence go.
At trial, appellant claimed Yellow threatened him and his
brother, coercing them to participate in the actions against
Lawrence. Appellant also testified he left Newport News because
he had had some trouble in Newport News relating to an incident
in which he "stood up" for Lawrence.
On cross-examination, the Commonwealth asked appellant if
he had had any other trouble in Newport News. Appellant
responded in the negative. The Commonwealth again asked whether
appellant had had any trouble in the area and whether he had a
-2- temper. Appellant again answered in the negative. The
Commonwealth then asked if appellant had ever had a problem with
his temper. Appellant answered he did not. The Commonwealth
proceeded to question appellant, over his objection, about two
prior juvenile adjudications for assault and battery. The trial
court stated appellant had "opened the door" to the inquiry by
stating he did not have a problem with his temper.
At sentencing, appellant said to the assistant
Commonwealth's attorney, "Fuck you, bitch." The trial court
found appellant in contempt of court and summarily sentenced him
to twelve months in jail and a $1,000 fine.
ANALYSIS
Evidence of Prior Juvenile Adjudications
The Commonwealth asked appellant if he had ever had a
problem with his temper and whether he had had any other
problems in Newport News. Appellant answered both inquiries in
the negative. Over appellant's objection, the Commonwealth
proceeded to cross-examine appellant about his prior juvenile
adjudications for assault and battery.
In Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846
(1999), the Commonwealth asked a defense witness whether he had
a history of drug abuse. The witness responded he did not. The
trial court allowed the Commonwealth to cross-examine the
-3- witness with regard to a prior misdemeanor conviction for
distribution of marijuana. This Court found that
"[w]here the purpose of the inquiry is to impeach a witness' veracity, cross-examination concerning a witness' prior convictions is limited to prior felony convictions and convictions for misdemeanors involving moral turpitude." Misdemeanor crimes of moral turpitude are limited to those crimes involving lying, cheating and stealing, including making a false statement and petit larceny.
Id. at 448, 512 S.E.2d at 853.
The Commonwealth's attorney sought to impeach appellant's
veracity with regard to his answers to the questions the
Commonwealth posed. However, assault and battery is not a crime
involving moral turpitude. Further, the assault and battery
offenses were juvenile adjudications. Absent a foundation other
than impeaching appellant's veracity, the trial court should not
have allowed the Commonwealth to pursue this line of
questioning.
As the basis for his ruling, the trial judge stated
appellant "opened the door" to the line of questioning by
stating he did not have a temper. However, appellant did not
deny he had prior convictions, he denied having a temper.
Having assault and battery convictions does not prove one has a
temper. Further, the trial court's reasoning suggests appellant
put his character in evidence by his answer. The Commonwealth
-4- merely elicited the response that appellant did not have a
temper. No inference can be drawn from two assault and battery
convictions as to whether one has a temper or a problem with his
temper.
Additionally, appellant did not "open the door" in his
direct testimony that he was a peaceful person, nor did his
answers to the Commonwealth's questions suggest he was
attempting to show the jury he was a peaceful citizen. If
appellant had raised character evidence of peacefulness, the
Commonwealth might have properly impeached such character
evidence with proof of other crimes. However, as in Newton, the
Commonwealth opened the door to appellant's prior convictions by
asking whether appellant had had any trouble in the community
and with his temper. The trial court erred by allowing the
Commonwealth to cross-examine appellant about the fact of his
prior adjudications and the details of those offenses.
Therefore, we reverse the judgments of conviction for abduction,
maiming, robbery and the three related use of a firearm in the
commission of a felony charges and remand for further
proceedings if the Commonwealth be so advised.
Excessive Penalty for Summary Contempt Conviction
At the conclusion of appellant's sentencing hearing, while
still in the courtroom, appellant stated to the assistant
-5- Commonwealth's attorney, "Fuck you, bitch." The trial judge did
not hear the statement.
Code § 18.2-456(1) provides that a court or judge may find
one in contempt and punish the offender summarily for
"[m]isbehavior in the presence of the court, or so near thereto
as to obstruct or interrupt the administration of justice."
Code § 18.2-457 states that "[n]o court shall, without a jury,
for any such contempt as is mentioned in the first class
embraced in § 18.2-246, impose a fine exceeding $250 or imprison
more than ten days[] . . . ." Code § 18.2-456(3) prohibits use
of "vile, contemptuous or insulting language . . . used in the
judge's presence and intended for his hearing for or in respect
of such act or proceeding."
The trial judge stated, "Mr. Middlebrooks, anything which
tends to disrupt this Court in its administration of justice is
contempt of court. The Court is of the opinion that what just
occurred disrupted this Court and was in contempt of this
Court's process." The trial judge added he was pronouncing
sentence "for what just occurred between you and the
Commonwealth's Attorney in the presence of this Court." Nothing
in the record supports the Commonwealth's contention that
appellant intended the trial judge to hear his statement to the
prosecutor. Therefore, the evidence does not establish a
violation of Code § 18.2-456(3).
-6- The trial judge's statements to appellant at the time of
the contempt do, however, support a contempt finding under Code
§ 18.2-456(1). Thus, appellant should have been sentenced
pursuant to Code § 18.2-457. Therefore, we find the trial court
sentenced appellant in excess of the limits set out in Code
§ 18.2-457. However, "[w]here the sentence imposed is in excess
of that prescribed by law, only the part that is excessive is
invalid." Brown v. Commonwealth, 26 Va. App. 758, 763, 497
S.E.2d 147, 150 (1998) (citation omitted).
For the above stated reasons, we reverse the felony
convictions and remand for further proceedings if the
Commonwealth be so advised. With respect to the contempt
proceeding, we affirm the conviction, but vacate the sentence
and impose a sentence of ten days in jail and a $250 fine.
Reversed and remanded, in part and affirmed, in part, as modified.
-7-