Scialdone v. Com.

Citation689 S.E.2d 716
Decision Date25 February 2010
Docket NumberRecord No. 090303.,Record No. 090305.
PartiesClaude M. SCIALDONE v. COMMONWEALTH of Virginia. Barry R. Taylor, et al. v. Commonwealth of Virginia.
CourtSupreme Court of Virginia

Marvin D. Miller, Alexandria (Heather Golias, on briefs), for appellants.

Donald E. Jeffrey III, Senior Assistant Attorney General (William C. Mims, Attorney General; Gregory W. Franklin, Assistant Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and CARRICO, S.J.

OPINION BY Justice CYNTHIA D. KINSER.

These appeals arise from a judgment of the Circuit Court of the City of Virginia Beach summarily holding Claude M. Scialdone Barry R. Taylor, and Edward S. Jones (collectively, the defendants) in contempt pursuant to Code § 18.2-456.1 Contrary to the holding of the Court of Appeals of Virginia, we conclude that the defendants preserved for appeal their argument that the circuit court deprived them of their due process rights by conducting a summary contempt proceeding. We also conclude that all the essential elements of the alleged contemptible conduct did not occur in the presence of the circuit court and that the defendants were, therefore, entitled to the due process rights associated with a plenary proceeding. Thus, we will reverse the judgment of the Court of Appeals.

I. RELEVANT FACTS AND PROCEEDINGS

The events leading to the circuit court's finding of contempt occurred during a felony jury trial in which Scialdone and Taylor, law partners, represented a client charged with various offenses stemming from his conduct in an internet chat room with a police officer posing as a minor. Scialdone appeared as lead counsel at trial, and Jones assisted as a law student clerking in Scialdone and Taylor's law office.

On July 12, 2006, during the criminal trial, Scialdone attempted to introduce into evidence a document purporting to be the rules pertaining to the use of a "Yahoo!" internet chat room (Document 1). The Yahoo username appearing near the top of the page was "westisanazi."2 Based on the Commonwealth's objection, the circuit court refused to admit the document into evidence because it contained a copyright date of 2006 and a print date of July 11, 2006, while the alleged crimes had occurred in 2005. The circuit court instructed Scialdone that only the rules as they existed at the time of the alleged offenses would be admissible.

A short time later, Scialdone again referenced the rules of the chat room and offered into evidence another document setting forth the chat room rules (Document 2). The circuit court noted that Document 2 looked exactly the same as Document 1, except Document 2 had no copyright or print date on the bottom of the page. Document 2 also bore a different Yahoo username: "wndydpooh." When the court inquired as to the document's authenticity, both Scialdone and his client stated that the client's father had printed it shortly after his son's 2005 arrest. The court expressed concern that Document 2 appeared as though someone had "white[d] out" the copyright and print date on Document 1 and then copied the page.

Scialdone then called his client's father to testify, out of the presence of the jury, to establish that he had given Scialdone Document 2. The witness testified that within two weeks of his son's arrest and with the assistance of another family member, he printed the Yahoo chat room rules and delivered them to Scialdone's law partner. According to the witness, the document he provided bore the username of his wife: "pdulyea."

That testimony prompted the circuit court to inquire who "wndydpooh" was and to ask Scialdone the name of his secretary. Scialdone replied that her name was "Wendy [Suttlage]." The court then stated, "Yeah. That's what I thought. Get her over here." The court directed Scialdone to instruct both Suttlage and Taylor to come to the courtroom and to refrain from talking with either of them or "explain[ing] anything else."

When Suttlage and Taylor arrived, the circuit court instructed Taylor to wait in the hall while it questioned Suttlage under oath. In response to the court's questioning, Suttlage testified that her Yahoo username was "[w]ndydpooh" and that she had printed off the Yahoo chat room rules the previous weekend but had no knowledge of any alteration of a document. The circuit court then instructed Suttlage to leave the courtroom and called Taylor to testify under oath.

Taylor stated that, when asked earlier that day to search for the chat room rules, he found Document 2 in the conference room of the law office and gave it to Scialdone. Taylor testified that he believed the client had brought Document 2 to the law office. Taylor denied altering Document 2 or knowing of its alteration.

At that point, the circuit court stated:

One of you—one of the three of you, I guess—Mr. Jones, you're in this too—is going to come clean about this. And I expect it to be done if you all—I'm trying to think if there are any other questions I need to ask. You all better—somebody better take the fall or everybody is going to take the fall for this.

The circuit court then brought Suttlage back into the courtroom and asked who had instructed her to print Document 2 from the internet. Suttlage responded that Taylor had done so and that she had given Document 2 to Taylor after printing it. The court inquired of Taylor how Document 2 could be the one provided by the client's father when Suttlage indicated she had printed it and given it to him. In response, Taylor insisted the two documents (Document 1 and Document 2) were the same and continued to deny knowledge of any alteration. The court declared: "Mr. Taylor, you better come clean with me right now. What is going on?" Taylor again denied involvement, whereupon the court instructed Suttlage and Taylor to wait in the hall and to refrain from speaking with each other.

The circuit court then called Jones to the witness stand and placed him under oath. Upon questioning by the court, Jones admitted he was likely in the law office when Document 2 was printed from the internet but denied he was in the office when it was retrieved that day to be offered into evidence. When Jones admitted printing Document 1, the court inquired about the username appearing on that document. The court stated: "I couldn't figure out what it was until it was shown to me what it says. . . . West is a Nazi is what it says. . . . Mr. Scialdone, you better do some talking."

At that point, the circuit court placed Scialdone under oath and sent Jones to the hall. Scialdone stated that he had not seen any document the previous weekend containing the chat room rules and that he did not know how to use computers, enter a username, or print a document from the internet. The court replied:

But you know how to white out and copy, I would assume, which is what's been done to this document that is being represented as being given to you two years ago but was actually run off by your secretary . . . on Sunday. . . . There is a serious ethical issue here, if not criminal.

When Scialdone again denied any wrongdoing, the court stated:

Somebody in your firm, Mr. Scialdone— and it's Scialdone and Taylor. So it's you and under your direction, and you're the lead counsel in this case. Somebody has perpetrated a fraud on this court, and I will get to the bottom of it. I am not—I am finding—at this point in time I am finding both you and Mr. Taylor and Mr. Jones—get them back in here—in contempt; and we will deal with it after the trial. And if it comes out that one of you may not have had any knowledge, I may reconsider; but at this point in time all of you are involved.

When Taylor and Jones returned to the courtroom, the circuit court asked who was responsible for the "westisanazi" username. Jones admitted culpability, stating that he had been "upset about some of the [court's] rulings." The court admonished Jones and stated:

[R]ight now I am finding all three of you in contempt. We will have hearings on this after the trial is over as to what exactly happened here, but we're going to complete this trial. And the three of you have been found in contempt. If anyone is cleared after the fact—and that's if someone can convince me that they were not part of whatever fraud has been perpetrated on the court—then we will deal with that after the fact.

But right now all three of you are being held in contempt. I'm finding that a fraud was perpetrated on the court. I'm finding that Westisanazi is not a funny joke, and it's contempt.

. . . .

[W]e will finish this trial and then we will have hearings on this matter as far as anything that you might—anything else you might want to say. Otherwise, it will just be sentencing hearings.

Scialdone replied, "I don't think there's any basis of you finding me in contempt." Again, the court stated:

I have a document that you tried to offer into evidence, and you argued vehemently that it was a document that your client and his father provided to you two years ago when, in fact, it's a document that your secretary printed out on Sunday for you and Mr. Taylor. Those are the facts.

. . . .

[I]f Mr. Taylor wants to take the full fall for it, he can; but right now it's both of you on the line and ... Mr. Jones as well. So if somebody wants to break ranks and rat somebody out, they can; but otherwise the three of you are in contempt. And I do find all three of you contemptible at this point in time.

Taylor asked the court to "note our exception."

After further discussion, the circuit court allowed Taylor to return to the law office to retrieve additional documents in an attempt to locate the 2005 chat room rules provided by the client's father. The court instructed Taylor to "bring ... every piece of paper that you have related to this case." The court required Scialdone and Jones to remain in the courtroom.

When Taylor returned with some documents, the...

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