Gilman v. Com.

• Decision Date: 29 February 2008
• Docket Number: Record No. 071364.
• Citation: 657 S.E.2d 474,275 Va. 222
• Parties: Tina GILMAN v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

657 S.E.2d 474

275 Va. 222

Tina GILMAN v. COMMONWEALTH of Virginia.

Record No. 071364.

Supreme Court of Virginia.

February 29, 2008.

Vikram Kapil, Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice BARBARA MILANO KEENAN.

In this appeal, we consider a circuit court's adjudication of a petty contempt conviction appealed from a juvenile and domestic relations district court. The issue we determine is whether the contemnor had a Sixth Amendment right of confrontation that was violated When the circuit court admitted in evidence, under Code § 18.2-459, the certificate of the district court judge reciting the factual circumstances underlying the contempt adjudication.

The facts of this case are not in dispute. In 2004, the Juvenile and Domestic Relations District Court of Henry County (the Henry County district court) ordered Tina Gilman, whose daughter had been placed in foster care, to submit to a drug screening. After Gilman failed the drug screening, the Henry County district court convicted Gilman of contempt, ordered Gilman to pay a $25 fine, and sentenced her to serve ten days in jail.

The "Contempt of Court Order and Certificate of Conviction" (the certificate of conviction) issued by the Henry County district court stated that that Gilman was found in contempt and was summarily punished in accordance with Code § 18.2-456, for disobedience and "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice." The certificate of conviction also included the Henry County district court judge's explanation of the "circumstances" of the contempt offense. According to the judge's handwritten notes on the certificate of conviction, after Gilman had been ordered to submit to a drug test, she "said she needed something to drink and then left the building; upon being tested later, [the results were] positive for cocaine."

Gilman appealed her contempt conviction to the Circuit Court of Henry County (the Henry County circuit court). During the proceeding on appeal, the Henry County circuit court admitted into evidence the certificate of conviction over Gilman's objection that admission of the document would violate her Sixth Amendment right of confrontation. Gilman did not present any evidence. The Henry County circuit court convicted Gilman of contempt and sentenced her to serve a term of five days in jail.

On appeal to the Court of Appeals, Gilman contended that the Henry County circuit court erred in receiving in evidence the certificate of conviction because it was inadmissible testimonial hearsay under the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). According to Gilman, admission of the certificate of conviction denied her the opportunity to cross-examine the judge who prepared the certificate.

In a published opinion, a three judge panel of the Court of Appeals affirmed Gilman's conviction, holding that Gilman did not have a Sixth Amendment right of confrontation in the Henry County circuit court proceeding. Gilman v. Commonwealth, 48 Va.App. 16, 628 S.E.2d 54 (2006). On rehearing en banc, an evenly divided Court of Appeals vacated the panel's decision and affirmed Gilman's conviction without opinion. Gilman v. Commonwealth, 49 Va.App. 1, 635 S.E.2d 309 (2006). We awarded Gilman this appeal.

Gilman argues that the Henry County circuit court's admission of the certificate of conviction violated her Sixth Amendment right to be confronted with the witnesses against her. She asserts that the certificate was testimonial in nature because it was prepared with knowledge that it would be used in a later proceeding, which she maintains was a de novo trial in the Henry County circuit court. Gilman contends that under the holding in Crawford, the certificate of conviction was testimonial hearsay because it contained factual statements involving her conduct offered to prove the truth of the matters asserted. Therefore, according to Gilman, the decision in Crawford precluded admission of the certificate because she did not have a prior opportunity to cross-examine the Henry County district court judge regarding the statements contained in the certificate. We disagree with Gilman's arguments.

We first consider the general nature of the contempt power of courts and the basic principles that govern summary contempt adjudications. All courts in this Commonwealth have the power to impose penalties for contemptuous conduct. Code § 16.1-69.24; Code §§ 18.2-456 through -458. A court's authority to punish contemptuous conduct is exercised to preserve the power of the court and to vindicate the court's dignity. International Union v. Bagwell, 512 U.S. 821, 831-32, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994); Morrissey v. Virginia State Bar, 260 Va. 472, 480, 538 S.E.2d 677, 681 (2000); Leisge v. Leisge, 224 Va. 303, 307, 296 S.E.2d 538, 540 (1982); Local 333B, United Marine Div. v. Commonwealth, 193 Va. 773, 784-85, 71 S.E.2d 159, 166 (1952).

A contempt of court may be direct or indirect. Generally, 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 is one that has occurred outside the presence of the court. See Bagwell, 512 U.S. at 833, 114 S.Ct. 2552; Davis, 219 Va. at 397-98, 247 S.E.2d 681, Burdett, 103 Va. at 845-46, 48 S.E. at 880-81.

A petty contempt, which may be direct or indirect, is one punishable under a statute that authorizes no more than six months' imprisonment. See Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Cheff v. Schnackenberg, 384 U.S. 373, 379-80, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). The contempt statutes under which Gilman was convicted permit a maximum penalty of ten days' imprisonment and a fine of $250. See Code §§ 18.2-456 and -458. Thus, in the present case, Gilman was convicted of a petty, direct contempt.¹

A petty, direct contempt may be subject to summary adjudication. Bagwell, 512 U.S. at 832, 114 S.Ct. 2552; Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 69 L.Ed. 767 (1925); see Higginbotham v. Commonwealth, 206 Va. 291, 294, 142 S.E.2d 746, 749 (1965); Code § 18.2-456. In a summary adjudication, no evidence or further proof is required because the court has observed the offense. Cooke, 267 U.S. at 534, 45 S.Ct. 390; see Fisher v. Pace, 336 U.S. 155, 159-60, 69 S.Ct. 425, 93 L.Ed. 569 (1949); In re Chaplain, 621 F.2d 1272, 1275 (4th Cir.1980).

The Supreme Court has emphasized that Sixth Amendment rights do not apply to adjudications for contempt, including those of petty, direct contempt. "While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not `criminal prosecutions' within the Sixth Amendment or common understanding." Myers v. United States, 264 U.S. 95, 104-05, 44 S.Ct. 272, 68 L.Ed. 577 (1924); accord Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); Sassower v. Sheriff of Westchester County, 824 F.2d 184, 188 (2d Cir.1987); United States v. Bukowski, 435 F.2d 1094, 1100-01 (7th Cir.1970).

Because criminal contempt proceedings are not "criminal prosecutions," the protections of the Sixth Amendment do not apply to such proceedings. See Levine, 362 U.S. at 616, 80 S.Ct. 1038; Sassower, 824 F.2d at 188; Bukowski, 435 F.2d at 1100-01. Instead, the safeguards applicable in such cases are protections of fairness guaranteed by the due process clause of the Fifth and Fourteenth Amendments. Sassower, 824 F.2d at 188; United States v. Martinez, 686 F.2d 334, 343 (5th Cir.1982); Bukowski, 435 F.2d at 1100-01. Summary adjudications for petty, direct contempt repeatedly have been held to provide due process of law. Fisher, 336 U.S. at 160, 69 S.Ct. 425; In re Chaplain, 621 F.2d at 1276; In re Manufacturers Trading Corp., 194 F.2d 948, 956 (6th Cir. 1952).

Based on these constitutional distinctions, we hold that Gilman did not have a Sixth Amendment right of confrontation that could be asserted in her contempt adjudication in the Henry County circuit court. This conclusion is not altered by Gilman's contention that she acquired a Sixth Amendment right of confrontation in the Henry County circuit court because the statutes governing appeals to that court provided her a trial de novo. An examination of the statutory appeal process for contempt adjudications directly refutes that contention.

Code § 16.1-69.24, which provides for appeals from summary contempt adjudications in the district courts, states in relevant part:

A judge of a district court shall have the same powers and jurisdiction as a judge of a circuit court to punish summarily for contempt. . . . From any such fine or sentence there shall be an appeal of right within the period prescribed in this title and to the court or courts designated therein for appeals in other cases and the proceedings on such appeal shall conform in all respects to the provisions of §§ 18.2-456 through 18.2-459.

The procedures for such appeals are detailed in Code § 18.2-459, which provides:

Any person sentenced to pay a fine, or to confinement, under § 18.2-458, may appeal therefrom to the circuit court of the county or city in which the sentence was pronounced, upon entering into recognizance before the sentencing judge, with surety and in penalty deemed sufficient, to appear before such circuit court to answer for the offense. If such appeal be taken, a certificate of the conviction and the particular circumstances of the offense, together...