Gilman v. Com., Record No. 1928-04-3.

• Decision Date: 04 April 2006
• Docket Number: Record No. 1928-04-3.
• Court: Virginia Court of Appeals
• Parties: Tina GILMAN, s/k/a Tina M. Gilman v. COMMONWEALTH of Virginia.

628 S.E.2d 54

48 Va. App. 16

Tina GILMAN, s/k/a Tina M. Gilman v. COMMONWEALTH of Virginia.

Record No. 1928-04-3.

Court of Appeals of Virginia, Salem.

April 4, 2006.

COPYRIGHT MATERIAL OMITTED

William Alexander Efrid, III (Office of the Public Defender, on brief), for appellant.

Susan L. Parrish, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: McCLANAHAN, HALEY, JJ., and FITZPATRICK, Ret. J.^*

McCLANAHAN, Judge.

Tina Gilman appeals her conviction for contempt of court. She argues that on appeal of her contempt conviction in juvenile and domestic relations district court (JDR court), the circuit court erred in admitting into evidence a Certificate of Conviction (certificate) prepared by the JDR judge pursuant to Code § 18.2-459. The certificate outlined the circumstances that led the JDR judge to hold Gilman in contempt. Gilman claims the admission of the certificate violated her Sixth Amendment right to confrontation. We disagree and affirm her conviction.

I. Background

The facts involved in this appeal are not in dispute. Gilman was convicted of contempt in the Henry County JDR Court and appealed to the Henry County Circuit Court. The circuit court admitted and considered the certificate prepared by the JDR judge pursuant to Code § 18.2-459.¹

The certificate indicates that appellant was convicted of contempt for "[m]isbehavior" and "[d]isobedience or resistance." More specifically, the certificate states that the JDR judge

certifies pursuant to Virginia Code § 18.2-459 that the defendant named herein is IN CONTEMPT under Code § 18.2-456 and is punished summarily for contempt under Code § 18.2-458 for the following: Misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice; ... [and] Disobedience or resistance of ... [a] person to any lawful process, judgment, decree or order of the court, including failure to appear or intentional obstruction of a witness under Code § 19.2-267.

The certificate also sets forth the "circumstances" of the conviction. Gilman was before the court because her daughter was in foster care, and the "evidence" showed that Gilman tested positive for illegal drugs two months earlier. Thus, "the court ... ordered a drug screen. [Gilman] said she needed something to drink and then left the building." For this contempt, Gilman was fined by the JDR court twenty-five dollars and sentenced to ten days in jail. The certificate is signed by the JDR judge.

The circuit court judge admitted the certificate over Gilman's Sixth Amendment objection. Gilman presented no evidence in her defense. Accordingly, the circuit court convicted Gilman of contempt and sentenced her to five days in jail.²

II. Analysis

Gilman argues she was entitled to a trial de novo in the circuit court on her appeal from the JDR court, pursuant to Code § 16.1-136, and the circuit court's admission of the certificate, pursuant to Code § 18.2-459, over her objection, violated her right to confront witnesses as guaranteed by the Sixth Amendment.

Specifically, Gilman maintains she was "not afforded an opportunity to confront the [JDR] judge who prepared the certificate. Without an opportunity to cross-examine [the judge], this testimonial hearsay should have been excluded" based on the United States Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Court held that the Confrontation Clause³ does not permit the introduction of out-of-court testimonial evidence at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1373-74.⁴

In this case, the circuit court admitted into evidence the certificate setting forth the circumstances of Gilman's contempt in accordance with the express terms of Code § 18.2-459. Challenging the constitutionality of Code § 18.2-459, Gilman contends that the certificate constituted out-of-court testimonial evidence in violation of the Confrontation Clause.

In our analysis of Gilman's constitutional challenge to Code § 18.2-459, we are guided by basic principles of judicial review. "[A]ll actions of the General Assembly are presumed to be constitutional." Etheridge v. Medical Ctr. Hosps., 237 Va. 87, 94, 376 S.E.2d 525, 528 (1989). "This presumption is `one of the strongest known to the law.'" Boyd v. County of Henrico, 42 Va.App. 495, 507, 592 S.E.2d 768, 774 (2004) (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). "Under it, courts must `resolve any reasonable doubt' regarding the constitutionality of a law in favor of its validity." Id. (quoting In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003)). "`To doubt is to affirm.'" Id. (quoting Peery v. Bd. of Funeral Dirs., 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961)).

It is well established that the Confrontation Clause is limited to trials in criminal prosecutions, whereas a summary proceeding for a petty direct contempt is neither a trial nor a criminal prosecution within the scope of the Sixth Amendment. Nor is there a constitutional right of appeal from such a proceeding. In this instance, however, the General Assembly has created a statutory right of appeal from JDR court to circuit court, where the certificate from the JDR court is allowed into evidence and the JDR judge is prohibited from being called as a witness. The proceeding in circuit court is thus a unique statutory hearing requiring a de novo determination, not a trial de novo, as in other appeals from district courts. As such, the admission of the certificate pursuant to Code § 18.2-459 did not implicate any of Gilman's Confrontation Clause rights, and we affirm the trial court.

JDR Court Proceeding

The common law is clear that "[c]ontempt proceedings are sui generis." Wilson v. Commonwealth, 23 Va.App. 318, 323, 477 S.E.2d 7, 9 (1996) (internal quotation marks and citation omitted). As explained in Myers v. United States, 264 U.S. 95, 104-05, 44 S.Ct. 272, 273, 68 L.Ed. 577 (1924), "[w]hile 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."⁵ The "confrontation" guaranteed by the Sixth Amendment "is confrontation at trial," Nelson v. O'Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971), and it is well settled that one who commits a petty direct contempt of court is not entitled to a trial, United Mine Workers of America v. Bagwell, 512 U.S. 821, 832, 114 S.Ct. 2552, 2559-60, 129 L.Ed.2d 642 (1994).

Appellant was convicted in the JDR court under Code § 18.2-456 for a direct summary contempt.⁶ The maximum punishment for a violation under this statute is a fine of $250 or imprisonment for 10 days,⁷ thus constituting a petty criminal contempt.⁸ In such a petty direct summary contempt, "`[w]here the contempt is committed in the presence of the court, it is competent for it to proceed upon its own knowledge 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.2d 1272, 1276 (4th Cir.1980) ("[T]he very nature of the summary procedure contemplates that citation, conviction and, ordinarily, punishment, will be accomplished in one fell swoop."). This is due to the fact that "[c]ontempt is a singular proceeding in our jurisprudence which implicates the trial court itself in both the offense and its adjudication and requires treatment suitable to this anomaly." Baugh v. Commonwealth, 14 Va.App. 368, 372, 417 S.E.2d 891, 894 (1992).⁹ That a court may punish one who commits a direct contempt of court without the rights and benefits accorded a defendant in a trial

is ... settled doctrine in the jurisprudence both of England and of this country, [and] never supposed to be in conflict with the liberty of the citizen.... [S]uch power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.

Ex Parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405 (1888). This power to convict and punish summarily nevertheless "accords due process of law." Fisher v. Pace, 336 U.S. 155, 159-60, 69 S.Ct. 425, 427, 93 L.Ed. 569 (1949); see also Pounders v. Watson, 521 U.S. 982, 991, 117 S.Ct. 2359, 2363-64, 138 L.Ed.2d 976 (1997) (per curiam) (upholding petty direct summary contempt conviction by state trial court upon due process challenge).¹⁰

Circuit Court Proceeding

The defendant has no constitutional right of appeal from a contempt conviction in JDR court. The United States Supreme Court has never held that the states are constitutionally required to establish avenues of appellate review of criminal convictions. M.L.B. v. S.L.J., 519 U.S. 102, 110, 117 S.Ct. 555, 560-61, 136 L.Ed.2d 473 (1996); Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

In this instance, however, the General Assembly has created a statutory right of appeal pursuant to Code § 16.1-296(A). That statute provides that any final order or judgment of a JDR court may be appealed to the circuit court. See Walker v. Dep't of Pub. Welfare, 223 Va. 557, 562-63, 290 S.E.2d 887, 890 (1982). Where that appeal is taken by an adult on a conviction of an offense within the jurisdiction of the JDR court, the appeal shall be dealt with as an appeal from a general district court,¹¹ except as limited by Code §§ 18.2-459 and 19.2-271.¹²

In contempt cases, Code §§ 16.1-136 and 1...