Baugh v. Com.

• Decision Date: 05 May 1992
• Docket Number: No. 1362-90-2,1362-90-2
• Citation: 417 S.E.2d 891,14 Va.App. 368
• Court: Virginia Court of Appeals
• Parties: David P. BAUGH v. COMMONWEALTH of Virginia. Record

Page 891

417 S.E.2d 891

14 Va.App. 368

David P. BAUGH v. COMMONWEALTH of Virginia.

Record No. 1362-90-2.

Court of Appeals of Virginia.

May 5, 1992.

Claire G. Cardwell, Richmond, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: WILLIS, BENTON and BRAY, JJ.

BRAY, Judge.

On an appeal from the general district court, David P. Baugh (defendant) was convicted in the circuit court of criminal contempt in violation of Code § 18.2-456(1) and sentenced to ten days in jail. ¹ He contends that (1) the admission into evidence of a certificate prepared by the general district court judge, which detailed the circumstances of the offense, violated his constitutional right of confrontation and his statutory right to a trial de novo, (2) the trial court improperly denied his right to a trial by jury, and (3) the evidence was insufficient to support the conviction. We disagree and affirm.

I.

Defendant, an attorney, had been appointed in the general district court (district court) to defend George Gonzalas (Gonzalas) on a charge of petit larceny. During defendant's cross-examination of a witness at trial, someone in the courtroom whispered, "Object, he's badgering." Perhaps in response to this prompt, the Commonwealth's Attorney objected and was sustained by the district court judge. Defendant then "turned his back on the Court" and remarked that he "didn't know that the court read lips" and "we have the audience to thank for the objection."

The trial proceeded and defendant requested that Gonzalas be permitted to place the wine bottles subject of the larceny into his pants to disprove testimony that the pants could accommodate both the bottles and Gonzalas. When the district court judge denied the motion, defendant suggested that the demonstration be conducted with Gonzalas handcuffed so he could not "hurt" the court, but this request was also refused. Defendant then argued that he was "being deprived of his ability to represent his client;" however, the court noted that "it had ruled" and instructed defendant to "move along." Instead, defendant asked leave to withdraw from the case and his motion was granted. Immediately following this ruling, defendant commented to the district court judge, "Good, now you can appoint somebody that will plead him guilty," and the court found him in contempt.

Defendant appealed the conviction to the circuit court and, in accordance with the provisions of Code § 18.2-459, a "certificate" prepared by the district court judge, which detailed the circumstances of the offense, was transmitted to the circuit court. Defendant's motion for a jury trial was denied and, following a bench trial during which the certificate was admitted into evidence, defendant was convicted of contempt and sentenced to ten days in jail.

II.

We first address defendant's complaint that the certificate violated his constitutional right of confrontation and his statutory right to a trial de novo in the circuit court. The right of a defendant in a criminal prosecution to confront his accusers is guaranteed by both the United States and Virginia Constitutions. U.S. Const. amend. VI; Va.Const. art. I, § 8. This right, however, is "not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973); see Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). It must be assured in a fashion "sensitive to the necessities of trial and the adversary process" and "must occasionally give way to considerations of public policy and the necessities of the case." Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 3165, 111 L.Ed.2d 666 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), and Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)). Nevertheless, it remains a constitutional right compromised "only where ... necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 110 S.Ct. at 3166; Bilokur v. Commonwealth, 221 Va. 467, 471, 270 S.E.2d 747, 751 (1980).

We find the circumstances of the instant prosecution sufficiently unique to raise these public policy considerations necessary to warrant departure from the traditional concepts of trial confrontation. " 'Contempt is defined as an act in disrespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.' " Carter v. Commonwealth, 2 Va.App. 392, 396, 345 S.E.2d 5, 7 (1986) (quoting 4A Michie's Jurisprudence Contempt § 2 (Repl.Vol.1983)); see Code § 18.2-456(1). It includes any act "which is calculated to embarrass, hinder, or obstruct the court" in the discharge of its responsibilities. Carter, 2 Va.App. at 396, 345 S.E.2d at 7-8; Potts v. Commonwealth, 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946).

A district court judge has the power to punish summarily for contempt. Code § 18.2-458. It is a power "essential and inherent ... [to] the very existence of our courts," Levine v. United States, 362 U.S. 610, 615, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960), indispensable to "the proper administration of the law ... [and necessary] to preserve the confidence and respect of the people without which the rights of the people cannot be maintained and enforced." Carter, 2 Va.App. at 395, 345 S.E.2d at 7 (quoting In re Chadwick, 109 Mich. 588, 596, 67 N.W. 1071, 1072 (1896)). Contempt 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.

Code § 19.2-271 prohibits the testimony, "in any criminal or civil proceeding," of a judge "as to any matter which came before him in the course of his official duties." Oftentimes, however, the district court judge is an indispensable witness to the contemptuous event and his or her testimony is essential to prosecution of the offense on an appeal. Code § 18.2-459 resolves this dilemma by requiring that the district court judge submit a "certificate of the conviction and the particular circumstances of the offense." The circuit court "may hear the case upon the certificate and any legal testimony adduced on either side." Code § 18.2-459. This statutory scheme at once accords proper deference to the district court and ensures the preservation and availability of relevant evidence, the reliability of which is enhanced by the judge's certificate. In all other respects, ordinary trial procedures are undisturbed.

Thus, while the right of an accused in contempt proceedings to traditional face-to-face confrontation yields to more compelling public policy considerations, the integrity of the factfinding process is diminished little and the procedure is constitutionally sound. We thus reject defendant's contention that his right to confrontation was violated.

III.

Code § 16.1-132 grants to any person convicted of an offense in the district court the right of appeal to the circuit court and Code § 16.1-136 provides that such appeal shall be heard de novo, as a new trial. Gaskill v. Commonwealth, 206 Va. 486, 490, 144 S.E.2d 293, 296 (1965); Gravely v. Deeds, 185 Va. 662, 664, 40 S.E.2d 175, 176 (1946). The issue before the circuit court is not the disposition of the matter in the lower court, but the defendant's guilt or innocence. Royals v. City of Hampton, 201 Va. 552, 556, 111 S.E.2d 795, 798 (1960); Gravely, 185 Va. at 664, 40 S.E.2d at 176; Malouf v. City of Roanoke, 177 Va. 846, 856, 13 S.E.2d 319, 322 (1941). In this determination, the judgment of the district court must be ignored. Royals, 201 Va. at 556, 111 S.E.2d at 798; Gravely, 185 Va. at 664, 40 S.E.2d at 176; Malouf, 177 Va. at 856, 13 S.E.2d at 322.

In the appeal of a contempt citation, however, those events which occurred in the district court comprise the evidence of the offense before the court of record. The occurrence, circumstances and perceptions of the district court judge are relevant and necessary direct evidence in the appellate proceeding, the admission of which does not affect the de novo nature of the trial. The defendant, therefore, was not denied his statutory right to a trial de novo.

IV.

We next address defendant's assertion that the trial court improperly denied his right to a jury trial. He argues that the right to trial by jury in Virginia attaches to any offense that is punishable by imprisonment.

At common law, no right to a jury trial existed in summary contempt proceedings. In Yoder v. Commonwealth, the Supreme Court of Virginia noted that:

the general rule was, that no person could be deprived of his property or his liberty except by the judgment of his peers. To this rule, however, there was an exception, and in cases of contempt the offender could be attached, brought at once before the court and punished without the intervention of a jury.

107 Va. 823, 827-28, 57 S.E. 581, 583 (1907). In Nicholas v. Commonwealth, the Court again observed that " '[t]here has been general recognition of the fact that the courts are clothed with [the power to punish for contempt], and must be authorized to exercise it without referring the issues of fact or law ... to a jury.' " 186 Va. 315, 321, 42 S.E.2d 306, 309 (1947) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911)). We recognize, however, that the unbridled authority of courts to punish for criminal contempt in the absence of a jury is limited to "petty contempts," with a penalty not exceeding six months. Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974); Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); see Greene v. Tucker, 375 F.Supp. 892 (19...