Courtney v. Com.

• Decision Date: 03 December 1996
• Docket Number: No. 2481-95-2,2481-95-2
• Citation: 23 Va.App. 561,478 S.E.2d 336
• Court: Virginia Court of Appeals
• Parties: . COMMONWEALTH of Virginia. Record Court of Appeals of Virginia, Richmond

Page 336

478 S.E.2d 336

23 Va.App. 561

Deborah Hinton COURTNEY v. COMMONWEALTH of Virginia.

Record No. 2481-95-2.

Court of Appeals of Virginia Richmond.

Dec. 3, 1996.

Craig S. Cooley, Richmond, for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and BENTON and ELDER, JJ.

BENTON, Judge.

The trial judge found Deborah Hinton Courtney guilty of criminal contempt of court. Courtney contends that (1) the prosecution was barred by the Double Jeopardy Clause, (2) the trial judge erred by refusing to allow Courtney's counsel to withdraw, (3) the trial judge erred by refusing Courtney's request for a jury trial, and (4) the evidence was insufficient to support the conviction. We hold that the prosecution violated the Double Jeopardy Clause of the United States Constitution, and we reverse the conviction.

I.

The evidence proved that on December 5, 1994, the trial judge entered an order establishing a schedule for Courtney's former husband to visit their two children. The order stated that Courtney, the father, and their counsel had met with a youth service assessment team and that a family service plan had been prepared as a result of that meeting. Consistent with the plan, the order granted the father visitation with the children, who were in Courtney's physical custody. Emily Blankinship, a licensed clinical social worker, was designated to supervise the initial visits.

The order further provided as follows:

2. [Courtney] shall select the name of an in home provider who will facilitate the father's visitation with the children. The in home provider shall be selected from a list of names available from the Richmond Youth Service Assessment Team case manager. [Courtney] shall make her selection and shall inform the case manager; Emily Blankinship, LCSW; and the father's counsel of the name, address and telephone number of the in home provider by December 15, 1994. In the event [Courtney] does not make her selection by December 15, 1994, then the case manager shall select the in home provider.

3. Beginning January 1, 1995, the in home provider shall facilitate and supervise the father's visitation with the children for a period of three hours each week, at such times and places as the in home provider directs. Both parties are ordered to cooperate fully with the in home provider.

4. The children shall continue to have counselling sessions with Emily Blankinship, LCSW, and [Courtney] shall cooperate fully in making the children available for counselling at such times and places as Ms. Blankinship directs.

Upon the father's motion, the trial judge entered an order on June 19, 1995, requiring Courtney to appear at a hearing on July 17, 1995, "to show cause ... why she should not be held in contempt of court and punished by fine or imprisonment or both for failure to comply with the terms of a plan for providing services to the Courtney family and for denying visitation to ... [the father] since December 15, 1994, as ordered by this Court on December 5, 1994." At the hearing on July 17, 1995, Courtney was present with her counsel. Also present and participating as opposing counsel was the Assistant Commonwealth's attorney.

At the beginning of the hearing, the trial judge stated the following:

[T]his is a matter that originally started out as Joseph Courtney versus Deborah Hinton Courtney and by previous orders it was transferred to the criminal side of the court and styled Commonwealth of Virginia versus Deborah Courtney, was a criminal show cause where evidence has previously been heard pursuant to certain orders of the court and we're back for review of that.

Called as a witness by the Commonwealth, the father testified concerning the plan developed by the youth service assessment team and the hearing on December 5, 1994 that culminated in the visitation order. He further testified that he had supervised visitation with his children until December 18, 1994 and that he had no visitation after that date.

Blankinship testified for the Commonwealth that the last visitation she supervised was on December 18, 1994. She also testified that Courtney was "absolutely terrorized" about having contact with the father. She added that Courtney perceived that the children were in "a very, very dangerous environment" when they were having visitation with their father. She testified that Courtney "seemed much more distraught, more confused, much more agitated than ... in the past."

Courtney's counsel did not present any witnesses at the conclusion of the Commonwealth's case. Courtney's counsel made a motion to strike the evidence and argued that the Commonwealth's evidence failed to prove that the "in-home provider" arranged visitations as required by the December 5, 1994 order. In response to the Commonwealth's argument that Blankinship's testimony was sufficient to prove noncompliance, the trial judge stated, "the problem is that the last order of the court, the one that needs to be addressed is what happened with the home provider."

The trial judge then ruled as follows:

Well, here's what should happen. And, you know, I guess you learn the hard way, but anyway, this case at this point is so confusing I'm not sure there's anybody on the face of this earth could ever figure it out, so here's what should happen: Any pending show causes that are now pending that start back in 1992 and 1993, I'm going to dismiss those show causes.

Now, there is an order entered by this court on December 5th, 1994, that requires certain things very specifically. Now, does the Commonwealth wish to pursue a show cause order based upon the Defendant's alleged violation of that order?

[ASSISTANT COMMONWEALTH'S ATTORNEY]: Yes, Your Honor.

When Courtney's counsel "object[ed] to the court failing to dismiss the case at this point based on the lack of evidence presented," the trial judge responded, "I have dismissed all pending show causes."

Three days later, the Commonwealth filed a motion to require Courtney to show cause why she should not be held in contempt for failure to abide by the December 5, 1994 order. The trial judge issued a show cause order. Courtney's counsel then filed a pleading alleging that the Double Jeopardy Clause barred the prosecution for any alleged violation that occurred prior to the July 18, 1995 dismissal order. The trial judge denied the plea.

At the September 1995 contempt hearing, the Commonwealth presented testimony from Blankinship and the father that parallelled their testimony at the July hearing. Blankinship testified that her last contact with Courtney had been in December 1994. Unlike the July hearing, the Commonwealth presented testimony from Joan Advent, the in home provider. She testified that she and Courtney missed each other's telephone calls and that her last contact with Courtney was in February 1995. At that time, Courtney indicated that she would contact Advent to reschedule a meeting. Advent had not talked with Courtney since that date and had not attempted to call her.

Samuel Rubin, Ph.D., a clinical psychologist, testified as a witness for Courtney. He testified that Courtney was extremely frightened and "something short of panic[ked]" at the prospect of sending the children to visitation with their father. She believed, based on his prior conduct, that the children's father would cause them great harm. Dr. Rubin testified that Courtney had an anxiety and thinking disorder that prevented her from responding rationally to the visitation order.

At the conclusion of the evidence, the trial judge found Courtney guilty...