Scialdone v. Com.
| Citation | 51 Va. App. 679,660 S.E.2d 317 |
| Decision Date | 29 April 2008 |
| Docket Number | Record No. 1737-06-1.,Record No. 1739-06-1.,Record No. 1738-06-1. |
| Court | Court of Appeals of Virginia |
| Parties | Claude M. SCIALDONE v. COMMONWEALTH of Virginia. Barry R. Taylor v. Commonwealth of Virginia. Edward Jones, s/k/a Edward S. Jones v. Commonwealth of Virginia. |
Marvin D. Miller (Heather Golias; Law Offices of Marvin D. Miller, on briefs), Alexandria, for appellants.
Donald E. Jeffrey, III, Assistant Attorney General; Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General; Gregory W. Franklin, Assistant Attorney General, on briefs), for appellee.
Present: FELTON, C.J., ELDER and KELSEY, JJ.
Claude M. Scialdone, Barry R. Taylor, and Edward S. Jones each appeal from a finding of summary contempt for violating Code § 18.2-456.1 On appeal, each contends the proceeding in which he was convicted for contempt was not a summary proceeding and, thus, that he was improperly denied his due process rights,2 including the rights to pretrial notice, to present a defense, and to be represented by counsel. We hold each of the appellants was denied his right to due process, and we reverse and remand for further proceedings consistent with this opinion if the trial court and the Commonwealth be so advised.
Beginning on July 12, 2006, Frankie Dulyea was tried by a jury for several offenses, all of which stemmed from online conversations he had in April and May 2005 with an undercover police officer posing as a twelve-year-old girl. Dulyea was represented by attorneys Claude Scialdone and Barry Taylor, of Scialdone & Taylor, Inc. They were assisted by a law student, Edward Jones. All three men participated in the preparation of Dulyea's case for trial, but Taylor did not appear at trial. Scialdone served as lead counsel at trial, and Jones was present in the courtroom to assist him.
While cross-examining the undercover police officer, Scialdone attempted to ask her about the age-limit rules applicable to the online chat room in which she and Dulyea had conversed. When Scialdone proffered a copy of the rules dated July 11, 2006, the day prior to trial, the Commonwealth objected that the document was irrelevant because it did not cover the proper time period. The court sustained the objection, ruling inter alia, "[I]f you want to pursue this line of questioning ... [,] you would have to have the rules that were in place in 2005." Scialdone responded,
Later, when Dulyea was testifying in his own behalf, Scialdone inquired, "After you were arrested, did you make an effort to check out the rules of Yahoo in that chat room that you were in?" The Commonwealth objected that "the rules after [Dulyea] was arrested are not relevant." After excluding the jury, the trial court examined a second set of proffered rules and stated, Dulyea indicated that the proffered rules "were printed off by my father and my step cousin." The court asked, "Why is there not a print date on the bottom?" and then stated twice, "[I]t's got to have some sort of authentication on it." When the trial court inquired why Scialdone had "print[ed] [them] off again yesterday," Scialdone said they had been unable to locate the copy that Dulyea's father had provided to them. The court noted "it would be very easy" to create such a document by "whit[ing] out the bottom print time and then just run[ning] a copy of it." Scialdone said, "[I]f you want to voir dire us while we're outside the presence of the jury, I have no problem with that."
The trial court then asked the Commonwealth for its position. The Commonwealth agreed with the court's assertion, stating, "It's very suspicious that that document is exactly the same as the document that we objected to earlier today." The trial court then noticed the most recently proffered copy of the rules bore a different "Welcome so and so" line — a different screen name, indicating that a different person had signed on to access the rules. Scialdone argued the challenged document containing the rules was admissible regardless of the presence or absence of a print date because Dulyea would testify both that he was familiar with the rules in place before his online contact with the undercover officer and after and that the proffered document accurately set out those rules. The trial court said, "Well, you can ask him all of those things"; "it's just the document itself that's causing me the problem." The court then indicated that, in the absence of a print date, the court was The court noted that, although the screen name of the person who printed it was different, that
Still outside the presence of the jury, Scialdone then called Dulyea's father to the stand in an attempt to authenticate the second set of rules so that the court would admit it into evidence, but as the testimony of the elder Dulyea progressed it became apparent upon questioning from the court that the copy of the rules he obtained and printed in December 2005 was a two-page document that bore the screen name "pdulyea," one of his wife's screen names, and that the copy of the chat room rules Scialdone had most recently attempted to have admitted was a one-page document showing it had been printed by someone using the screen name "wndydpooh."
The court then inquired of Scialdone what his secretary's name was, and when he answered, "Wendy," the trial court responded, The court recessed and reconvened at 3:34 p.m. when secretary Wendy Suttlage and attorney Barry Taylor arrived. The judge said, The judge then showed Wendy Suttlage the chat room rules sheet bearing the screen name "wndydpooh" and questioned her about it. Suttlage testified she printed it out on the Sunday preceding the trial at the request of Mr. Taylor. She did not recall whether the printout included a date at the bottom of the sheet, and she denied having altered the document. The judge then inquired whether the attorneys had any questions for her. The Commonwealth's attorney responded, "No, Your Honor."
The trial judge then sent Suttlage out of the courtroom and called Taylor to the stand. Taylor testified that he recognized the printout bearing the chat room rules. Upon further questioning, he said he did not know when the sheet was printed but said, "This is the one, I think, that was given to us by our client, Mr. Dulyea." When the trial court said "that would be very interesting since it's under Wndydpooh's user name" and asked Taylor to "[e]xplain it," he responded he "was called and asked to look for the document that the client said he dropped off" and that he "found the document in a pile on the conference room table where they had been working on the case." Taylor denied "whit[ing] out the date at the bottom" or altering the document in any way.
The court then stated as follows, without mentioning the word "contempt,"
The trial court attempted to press Taylor further, but he insisted, "All I was asked to do was to look for the document — look for any document that talked about the adults being in the chat room." He indicated he was very familiar with the rules page because when "we were in preparation for the case, we had looked at this very document multiple times because ... it was crucial to our case." When the trial court inquired further why Taylor thought the document he retrieved was the document their client had brought to them, he said, "[It was] the only document in the stack that had this material on it."
The trial court then had Suttlage return to the courtroom and, upon further questioning, Suttlage reiterated that she printed the rules the Sunday prior to trial in response to a specific request from Taylor to do so, and she said she handed the document to Taylor. The trial court then asked Taylor why he presumed the document he received from Suttlage on Sunday was "the one your client gave you two years ago." Taylor responded, "Well, ma'am, it's the same document." When the court said, Taylor responded, "I don't know, ma'am," and the judge told him to wait in the hall.
The trial court then swore Jones and questioned him about what it believed was the fraudulent removal of the copyright and date information from the exhibit, but he, too, denied any knowledge of it. The court then asked who "ran ... off" "this other copy that we rejected this morning that's dated 7/11/2006." Jones responded, "Oh, I ran that off, Your Honor." Changing focus, the trial court then inquired about the screen name on that copy of the exhibit, asking, (Footnote added). Scialdone said "Oh, I'll answer every one of your questions," and ...
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