Davis v. Com., 771396
| Decision Date | 06 October 1978 |
| Docket Number | No. 771396,771396 |
| Citation | 219 Va. 395,247 S.E.2d 681 |
| Parties | Victor L. DAVIS, Jr. v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Mary H. Keating, Virginia Beach (Thomas B. Shuttleworth, Virginia Beach, Douglas Fredericks, Norfolk, Clark, Hofheimer & Stant, Virginia Beach, Fredericks & Buckley, Norfolk, on brief), for appellant.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
I'ANSON, Chief Justice.
Victor L. Davis, Jr., was found guilty of contempt under Code § 18.2-456(5) * for failing to produce certain documents subpoenaed by a special grand jury, and he was sentenced to four months in jail and fined $500.
The record shows that a special grand jury was impanelled by the court below on May 25, 1977. Immediately thereafter, the foreman, acting under Code § 19.2-208, issued a subpoena Duces tecum directing Davis to appear before the grand jury with certain specified documents of Davis Truck & Auto Supply, Inc. and/or Tractor & Truck Parts, Inc., at 2:00 p.m. on May 25. Service of the subpoena was accepted by Davis' brother, an officer of the corporations. The next day, Davis appeared and produced several packages of documents but refused to testify.
On May 31, 1977, Davis filed a motion to quash the subpoena on the ground that it violated his privilege against self-incrimination guaranteed by Article I, Section 8 of the Virginia Constitution and the Fifth Amendment to the Federal Constitution. After argument of counsel, the motion was denied on the ground that the self-incrimination right could not be asserted with respect to records of the corporations which Davis was called upon to produce. The documents brought into court on May 26 were delivered to the grand jury. Davis then produced several packages of additional corporate records pursuant to a second subpoena Duces tecum issued by the foreman of the grand jury on the same day.
At approximately 4:00 p.m. on June 1, an Assistant Commonwealth's Attorney advised the trial judge that it was his belief Davis had not fully complied with the subpoenas. As a result of this communication, the Assistant Commonwealth's Attorney, acting upon the direction of the trial judge, placed a telephone call from the office of the judge to Davis' attorney requesting that he notify Davis to appear before the court the next morning at 10:30. No rule or other process was issued against Davis.
When Davis, his counsel, and the attorney for the Commonwealth appeared before the court at the appointed time, the trial judge advised Davis for the first time that Code § 18.2-456, as amended, authorizes the court to punish summarily for contempt when there has been noncompliance with a subpoena issued by the foreman of a special grand jury.
A hearing ensued and continued the rest of that day and into the next day. The Commonwealth presented evidence that Davis had not produced certain records specified in the subpoenas Duces tecum. Throughout the course of the hearing, defendant's counsel requested an adjournment for two days in order that he might "defend this charge properly." He said that he had not had an opportunity to examine the documents seized under a search warrant issued on April 9, 1977, which were in possession of the special grand jury, and that he was not prepared for a full-scale hearing because he had not had an opportunity to assemble other documents, some of which were in his office. All these motions were denied and the hearing continued despite the trial judge's statement that he was not aware that a "full-fledged" contempt hearing was to be held until the Commonwealth's Attorney requested it as the hearing commenced.
Davis contends that the contempt for which he was punished was an "indirect contempt"; that he was denied due process of law...
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Gilman v. Com., Record No. 1928-04-3.
...of the facts, and to punish the offender without further proof, and without issue or trial in any form.'" Davis v. Commonwealth, 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978) (quoting Burdett v. Commonwealth, 103 Va. 838, 845-46, 48 S.E. 878, 880-81 (1904)); see also In re: Chaplain, 621 F.2......
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Scialdone v. Com.
...same in both cases." [Burdett v. Com., Burdett's Case,] 103 Va. [838,] 845-46, 48 S.E. [878,] 880-81 [(1904)]. Davis v. Commonwealth, 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978). Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more ......
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Gilman v. Com.
...a direct contempt is one committed in the presence of the court. See Bagwell, 512 U.S. at 832, 114 S.Ct. 2552; Davis v. Commonwealth, 219 Va. 395, 397, 247 S.E.2d 681, 682 (1978); Burdett v. Commonwealth, 103 Va. 838, 845-46, 48 S.E. 878, 880-81 (1904). An indirect or constructive contempt ......
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Scialdone v. Com.
...were not notified of the nature of the charges before being questioned by the circuit court. Accord Davis v. Commonwealth, 219 Va. 395, 397-98, 247 S.E.2d 681, 682-83 (1978) (finding violation of appellant's due process rights when he was told to appear in court but was not told that the pu......