Daily Press, Inc. v. Commonwealth
| Decision Date | 22 May 2012 |
| Docket Number | Record No. 1005–11–1. |
| Citation | 725 S.E.2d 737,60 Va.App. 213 |
| Court | Virginia Court of Appeals |
| Parties | The DAILY PRESS, INC. and Ashley Kelly v. COMMONWEALTH of Virginia. |
OPINION TEXT STARTS HERE
Hunter W. Sims, Jr. (R. Johan Conrod, Jr.; Kaufman & Canoles, P.C., on briefs), Norfolk, for appellants.
Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FELTON, C.J., and ELDER and HUMPHREYS, JJ.
The Daily Press, Inc. and Ashley Kelly (collectively “appellants”) appeal from an order of the Circuit Court of the City of Newport News (“trial court”) directing the Commonwealth and defense counsel in the case of Commonwealth of Virginia v. Lillian Callender (Nos. CR10–01420, CR10–01421, and CR10–01422) [hereinafter Callender ] to remove original photographs and an autopsy report, admitted into evidence during the Callender trial, from the public court file in that case, and placing photocopies of the exhibits that were retained in the court file under seal. Appellants assert the trial court failed to make the required findings under Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), prior to ordering the exhibits and photocopies sealed, that the order was not the least restrictive means of protecting the interests identified by the trial court, and that the order violated appellants' right to access public judicial records, in violation of the United States and Virginia Constitutions and Code § 17.1–208.1
On August 9, 2010, a grand jury in the City of Newport News indicted Lillian Callender and Michael Stoffa for felony child neglect of Callender's seventeen-month-old and twenty-seven-month-old daughters, in violation of Code § 18.2–371.1(A), and for second-degree murder of Callender's seventeen-month-old daughter, in violation of Code § 18.2–33. Following a bench trial on January 24, 2011, the trial court convicted Callender of second-degree murder of her seventeen-month-old daughter and felony child neglect of both daughters.2 The trial court sentenced Callender on July 21, 2011.
In March 2011, Kelly, a reporter for The Daily Press, Inc., requested permission from the clerk of the trial court to review the public court file related to Callender's trial. The clerk denied appellants' request. On March 28, 2011, without notice or hearing,3 the trial court entered an order sealing the entire court file “from the public until the conclusion of [Callender's and Stoffa's] cases.” On April 12, 2011, appellants filed a consolidated motion to intervene in Callender and for the trial court to unseal the court file in that case. Appellants argued that the trial court's order to place the public court file under seal violated the First Amendment to the United States Constitution, provisions of the Virginia Constitution, and Code § 17.1–208.
On April 20, 2011, at a hearing on appellants' motions, the trial court granted appellants' motion to intervene in Callender without hearing argument, “finding that [appellants] [are] a proper party to this hearing.” The trial court further “[found] that the [o]rder entered March 28, 2011 was overbroad in sealing the entire file.” After hearing argument from the parties, the trial court stated that “the exhibits, the pictures, [and] the medical reports” admitted into evidence during Callender's bench trial “have not, to my knowledge, been open to the public other than by submission to this [c]ourt.” The trial court stated its concern for Stoffa's “due process” rights and his interest in “not allow[ing]” the exhibits and photographs admitted into evidence in Callender “to be disseminated until [they are] properly introduced by the Commonwealth and accepted by th[e] [trial] [c]ourt against [Stoffa].” The trial court stated that “[t]he [c]ourt's consideration is the dissemination and publication of informationcontained in the original exhibits prior to the introduction of those documents by the Commonwealth.”
The trial court, over appellants' objections, ordered the clerk of the court “to secure the withdrawal of the original exhibits [admitted into evidence at Callender's trial] and to place under seal the photocopies of same to be retained in the Callender file.” It further ordered the clerk of the court to release the original exhibits to the Commonwealth and Callender's counsel for use at Stoffa's upcoming trial. It ordered the Commonwealth and Callender's counsel to return the original exhibits “to the Callender file should an appeal be noted in her case” and, in any event, to return the exhibits to the court file “after the trial of Michael Stoffa has concluded.” Finally, the trial court ordered “that the remainder of [the court] file shall be available for public inspection,” and “[o]ther than the exhibits withdrawn as authorized above, as well as copies thereof secured by the clerk, and other reports customarily deemed confidential and not available for public inspection, the [c]ourt's [March 28, 2011] [o]rder to seal is rescinded.”
On May 6, 2011, appellants petitioned this Court to issue a writ of mandamus ordering the trial court to vacate its April 22, 2011 order in which it permitted the Commonwealth and Callender's counsel to withdraw the original trial exhibits from the Callender court file and sealed the photocopies of the exhibits that were retained in that file. We denied appellants' petition for a writ of mandamus by order on May 24, 2011, concluding that
[t]he trial court had no duty to seal the trial exhibits, and its decision to do so involved an exercise of the court's discretion. See [ Perreault v. The Free Lance–Star, 276 Va. 375, 389, 666 S.E.2d 352, 360 (2008) ]. Accordingly, mandamus does not lie to order the trial court to reverse a decision reached in its discretion.
In re The Daily Press and Ashley Kelly, No. 0924–11–1 .
On August 26, 2011, appellants petitioned this Court for appeal from the trial court's order permitting the removal of the original trial exhibits by the Commonwealth and Callender's counsel and sealing the photocopies of the exhibits retained in the Callender court file. We granted appellants' petition for appeal on October 27, 2011. In addition to the two assignments of error raised in appellants' petition, we ordered additional briefing from the parties addressing (i) whether appellants' assignments of error were waived under Rule 5A:18 and (ii) whether we had jurisdiction to hear an appeal from the order of the trial court sealing the file in part in this case.
The threshold question presented is whether Code § 17.1–406(A)(i) confers jurisdiction on this Court to hear an appeal from an order of the trial court permitting the Commonwealth and Callender's counsel to withdraw original trial exhibits from the Callender court file and placing photocopies of the exhibits that were retained in that file under seal. Appellants assert that this Court is the proper venue for their appeal because, as third-party interveners in Callender, they constitute an “aggrieved party” petitioning for appeal from a “final conviction in a circuit court,” pursuant to Code § 17.1–406(A)(i). The Commonwealth contends this Court is not the proper venue for this appeal because appellants merely challengean ancillary or procedural order of the trial court; are not aggrieved by Callender's conviction in the trial court; and do not challenge Callender's conviction or sentence. Code § 17.1–406(A)(i).
Code § 17.1–406(A)(i) provides, in pertinent part, that “[a]ny aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of ... a crime, except where a sentence of death has been imposed....”
When interpreting statutory language that
Beck v. Shelton, 267 Va. 482, 488, 593 S.E.2d 195, 198 (2004) (quoting Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002)). Where bound by the plain meaning of the language used in a statute, we are not permitted “to add to or subtract from the words used in the statute.” Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918). We adhere to the principle that “we must ... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.” Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). It is incumbent upon us to give reasonable effect to every word. Moyer v. Commonwealth, 33 Va.App. 8, 35, 531 S.E.2d 580, 593 (2000) ( en banc ). In giving reasonable effect to every word, we presume the legislature used the word in its ordinary sense in the absence of a specific, statutory definition. Id.
The legislature chose to use the words “from a final conviction in a circuit court of ... a crime” in delineating our jurisdiction under Code § 17.1–406(A)(i). (Emphasis added). Black's Law Dictionary 335 (7th ed.1999) defines the word “conviction” as “[t]he act or process of judicially finding someone guilty of a crime; the state of having been proved guilty.” Here, appellants do not appeal from the process utilized in “finding [Callender] guilty of a crime,” nor do they appeal from Callender's “having been proved guilty” of felony child neglect and second-degree murder. Id. It would strain the ordinary meaning of the word “conviction,” as it is used in Code § 17.1–406(A)(i), to interpret the Court as having jurisdiction over an appeal that arises by virtue of an order of the trial court that is wholly ancillary to, and has no bearing at all...
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Daily Press, Inc. v. Commonwealth
...but subsequently held that it did not have jurisdiction to hear appeals from sealing orders. Daily Press, Inc. v. Commonwealth, 60 Va.App. 213, 222–23, 725 S.E.2d 737, 741–42 (2012). It transferred the appeal to this Court pursuant to Code § 8.01–677.1. Id. We awarded Daily Press this appea......