Bellis v. Com., 900832
| Decision Date | 01 March 1991 |
| Docket Number | No. 900832,900832 |
| Citation | 241 Va. 257,402 S.E.2d 211 |
| Court | Virginia Supreme Court |
| Parties | Morris BELLIS v. COMMONWEALTH of Virginia. Record |
Jeffery A. Sturgill (Sturgill, Sturgill & Stewart, on briefs), Norton, for appellant.
Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: All the Justices.
A physician was punished for contempt of court for failure to obey a subpoena duces tecum. His appeal questions the effectiveness of the service of the subpoena.
A felony case, Commonwealth v. Jeffery Allen Noaks, was set for trial on Monday, August 15, 1988, in the Circuit Court of Wise County. The commonwealth's attorney caused a subpoena duces tecum to issue, commanding Dr. Morris Bellis to attend the trial on August 15 and to produce certain medical records pertaining to a medical examination of the victim of a malicious wounding and an attempted rape.
The sheriff received the subpoena from the clerk on August 9. The sheriff's return reads Dr. Bellis failed to appear at the Noaks trial on August 15 and the court issued a summons requiring him to appear on the following day to show cause why he should not be held in contempt. That summons was personally served.
Dr. Bellis appeared without counsel on August 16. The court heard evidence, held him in contempt, and imposed a $100 fine. Later, counsel appeared for Dr. Bellis and filed a motion to reconsider. By order of September 2, 1988, the court vacated the contempt order and set the case for hearing on October 17. On that date the court heard further evidence and took the matter under consideration. On January 17, 1989, the court issued a letter opinion and entered an order reinstating the finding of contempt and reimposing the fine. The Court of Appeals refused an appeal on April 26, 1990, holding that the evidence was sufficient to support the trial court's finding. We awarded Dr. Bellis an appeal.
At the October 17 hearing, Pat Bevins, secretary and receptionist in Dr. Bellis' office, testified that the sheriff delivered the subpoena to her between 11:00 a.m. and 12:00 noon on Friday, August 12, and that the sheriff's return was incorrect. She further testified that the sheriff did not explain the purport of the subpoena to her, but that the commonwealth's attorney's office had called two days earlier, on August 10, to inform Dr. Bellis to expect the subpoena.
Mrs. Bevins also testified that Dr. Bellis was absent from his office when the sheriff arrived with the subpoena on Friday, August 12, but that he learned of it between 2:00 and 3:00 p.m. that afternoon during a telephone conversation with Mrs. Bevins. Although the subpoena was not personally delivered to him, Dr. Bellis admitted that he knew, on Friday afternoon, that he was required to be in court on the following Monday, at 9:00 a.m., with the medical records of the victim in the Noaks case.
Without returning to his office, Dr. Bellis travelled to Texas on Saturday to deliver an airplane. He remained there on Sunday and did not begin his return trip to Virginia until 11:00 a.m. on Monday, the day of the Noaks trial. His estimated flight time was over six hours, but he was delayed by bad weather and arrived Monday night. At some time during the day, Dr. Bellis called his office with the request that the commonwealth's attorney's office be informed of his delay.
The trial court found that the substituted service of the subpoena duces tecum was timely and proper, and, in conjunction with Dr. Bellis' actual notice, would support a conviction of contempt for his failure to appear. The court further found that Dr. Bellis had voluntarily absented himself and delayed his return and that his absence from the jurisdiction did not, in the circumstances, amount to a lawful excuse. The court concluded that Dr. Bellis had willfully and knowingly disobeyed a valid order of the court.
On appeal, Dr. Bellis argues that Title 19.2 of the Code, governing criminal procedure, contains no provisions authorizing substituted service of a subpoena. He points out that Code § 19.2-267 specifically provides that certain sections contained in Title 8.01 apply to criminal as well as civil cases, but that Code § 8.01-298, authorizing substituted service of witness subpoenas, is not among them. Therefore, his argument concludes, the General Assembly must have intended that all subpoenas in criminal cases be personally served.
We are not persuaded by that argument. Title 19.2 is silent with respect to the modes of service for witness subpoenas in criminal cases. It is necessary to look elsewhere for provisions governing such service. We think that the General Assembly, when codifying Title 19.2 in 1975, intended to leave the existing practice for the service of witness subpoenas in criminal cases unchanged. That practice had been prescribed for many years by statutes relating to civil procedure. See, e.g., Code of 1919, §§ 4969 and 6217.
Code § 8.01-298 provides, in pertinent part:
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