Felecia Amos v. Commonwealth of Virginia ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston,
PUBLISHED
McCullough, Huff and Chafin
Argued at Richmond, Virginia
FELECIA AMOS
OPINION BY
v. Record No. 1667-11-4 JUDGE STEPHEN R. McCULLOUGH
APRIL 9, 2013
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
Justin M. Ellis (Steven F. Molo; Martin V. Totaro; MoloLamken,
LLP, on briefs), for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
We consider in this case whether a litigant who was held in summary contempt is
procedurally barred from raising certain arguments on appeal and, if not, whether the trial court
erred in exercising its power of summary contempt. We conclude that Mrs. Amos’s legal
arguments are properly before us and that the finding of summary contempt must be reversed.
FACTUAL BACKGROUND
Felecia Amos and her estranged husband, Antonio Jose Amos, shared custody of their
son. Their relationship was hostile: he had been convicted of assaulting her and she had
obtained a restraining order against him. Mr. Amos’s sentencing order imposed a suspended
sentence and required that he be of good behavior. On October 30, 2010, Mrs. Amos wrote a
letter to the Commonwealth’s Attorney for Arlington County, with a copy to the court, alleging
that her estranged husband had violated the restraining order. She stated that she was “writing
this letter seeking HELP from your office as I am in fear of my life.” (capitalization in original).
She alleged, among other things, that during a custody exchange of their son at a McDonald’s
restaurant, Mr. Amos engaged in actions designed “to intimidate, harass and threaten” her.
Based on Mrs. Amos’s allegations, the court issued a rule to show cause to determine
whether Mr. Amos had violated the terms of his probation. Mrs. Amos appeared as a witness.
She testified that, during the exchange on October 29, 2010, at the McDonald’s, her husband
crudely insulted her and that he made threats against her, telling her “you’re going down.” She
stated that Mr. Amos began to leave the restaurant after picking up their son, but that he then
walked back inside and used more profanity against her. She testified that she feared the
situation was escalating, so she asked another customer to escort her to her car. She claimed that
Mr. Amos followed her outside, yelling, “hey, buddy, what are [you] doing talking to my wife?
She is a married woman,” and that she noticed his car following hers after she drove out of the
parking lot. Finally, she claimed that Mr. Amos followed her in his car after the incident at the
McDonald’s. She also testified about a separate occasion in which she felt Mr. Amos was
harassing her.
Jason Salinas, a Sergeant in the United States Army, also testified at the hearing. Salinas
explained that the First Army Commander had asked him to “help a soldier out” (Mr. Amos had
achieved the rank of Colonel in the Army prior to his retirement) by observing the custody
exchange of the Amoses’ son. Salinas did not serve under Mr. Amos in the military and, in fact,
had never seen him before. Salinas stated that he had no personal interest in the outcome of this
case. On October 29, 2010, Salinas arrived at the McDonald’s and took a seat where he would
be well positioned to hear any conversation between Mr. and Mrs. Amos. He testified that, once
Mrs. Amos arrived, there was no communication between her and Mr. Amos – they did not
speak at all. Mrs. Amos dropped off the child and left. Mr. Amos stayed behind. Mr. Amos
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also tape-recorded this exchange. The recording, which was played for the court, is consistent
with Salinas’s account and inconsistent with the testimony provided by Mrs. Amos. Finally,
Mr. Amos denied the allegations Mrs. Amos made against him.
At the conclusion of the hearing, the court asked the prosecutor if she had anything else
to add. The prosecutor stated that she was “speechless.” In response, the court stated “[w]ell,
there are going to be some other people speechless in a minute.” The court then announced that
it was dismissing the rule to show cause. The transcript reflects the following:
THE COURT: I’m not through. I am not through. The
Court is not through.
When this first started, I said, well, it has been eight months
without incident, so - - it’s not unusual in a divorce case to see
some back and forth, but there has been nothing for eight months,
and I just don’t know what would be accomplished by punishing
this man in keeping this flame burning.
But we have a different situation now.
There’s no question that he has not violated this Court’s
orders. But what we do have is a [serious] situation that this Court
does not take lightly.
Ms. Amos, come up here. Come up here by the podium,
Ms. Amos. Yes, ma’am. Come on up here. I want to make sure
we’re on the same page.
Stand in front of that podium.
You have come into this court and made some serious
accusations, and you have flat-out lied under oath. And it’s very
offensive to this Court, to every person in the legal community
what you’re doing. You’re nothing but a vindictive woman
towards this man.
I can understand your dislike for whatever reason. But you
will not, as far as this Court is concerned, use this process to
further that vindictiveness.
The Code of Virginia, under 18.2-456 provides that courts
and judges may issue attempts [sic] for contempt and punish them
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summarily, only in the following cases - - and there are several, but
I want to share one with you.
“Misbehavior in the presence of the court or so near thereto
as to obstruct or interrupt the administration of justice.”
I can’t think of any more interruption of justice than what
you have done deliberately in this courtroom.
And the Court finds you in contempt of court. You’re
sentenced to jail for ten days.
Remand her into custody, Sheriff.
THE COURT: Call the next case.
(Whereupon, the proceedings at 11:00 a.m. were concluded).
Mrs. Amos did not object at the time to being held in summary contempt. The court entered an
order the same day memorializing the finding of contempt, remanding her to the custody of the
sheriff and ordering a bail bond in the amount of $10,000.1
Seventeen days after the hearing, on June 27, 2011, Mrs. Amos filed a “motion to vacate
sentence and object to this honorable courts [sic] finding.” In her motion, she cited relevant case
law, including Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010), and
argued that holding her in summary contempt violated her due process rights. The trial court
never ruled on the motion. She also filed a notice of appeal on June 27, 2011.
I. MRS. AMOS’S ARGUMENTS ARE NOT PROCEDURALLY DEFAULTED.
The threshold question we must address is whether the arguments Mrs. Amos makes on
appeal are procedurally defaulted under Rule 5A:18. We conclude, on the specific facts before
us, that Mrs. Amos lacked the opportunity to object to the summary contempt finding at the time
it was made. Therefore, by operation of Code § 8.01-384(A), the absence of an objection does
not prejudice her on appeal.
1
According to her pleadings, Mrs. Amos was released after seven hours of confinement.
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Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”
Code § 8.01-384(A) operates in conjunction with this rule. This statute provides, in relevant
part, that “if a party has no opportunity to object to a ruling or order at the time it is made, the
absence of an objection shall not thereafter prejudice him . . . on appeal.” The rule and the
statute are complementary: Rule 5A:18 presupposes an opportunity to object “at the time of the
ruling or order” and Code § 8.01-384(A) expressly provides that where the party does not have
the opportunity to object to the ruling or order at the time it is made, the absence of an objection
shall not prejudice her on appeal.
We note at the outset that Mrs. Amos did not have an opportunity to object at the time of
the ruling or order. Mrs. Amos, who had appeared as a witness rather than as a party, was called
to the bench. After the court castigated Mrs. Amos for her lies and for her vindictiveness toward
her husband, the court ordered the sheriff’s deputy to remove Mrs. Amos from the courtroom
and directed the clerk to call the next case. On review of this record, it is plain that Mrs. Amos
did not have the “opportunity to object to [the] ruling or order . . . at the time it [was] made.”2
The Commonwealth responds that even if Mrs. Amos lacked an opportunity to object at
the time the court held her in contempt, she in fact had the opportunity to object to the ruling of
2
When exercising its power to hold a witness or a litigant in direct contempt, a court
ordinarily will afford the contemnor the opportunity to speak. See Taylor v. Hayes, 418 U.S.
488, 498 (1974) (“[W]here summary punishment for contempt is imposed during trial, ‘the
contemnor has normally been given an opportunity to speak in his own behalf in the nature of a
right of allocution.’” (citation omitted)). See also Benchbook Comm., Virginia Criminal
Benchbook for Judges and Lawyers § 14.08[1][c] (2012-13) (checklist for direct contempt
includes an opportunity to “[p]ermit contemnor (and contemnor’s attorney, if present) to speak”);
Benchbook Comm., Virginia Civil Benchbook for Judges and Lawyers § 10.06[4][c][iii]
(2012-13) (“Even in summary proceedings, the contemnor should be given the right to explain
his or her conduct or to produce reasons why he or she should not be punished or why his or her
punishment should be mitigated.”). The record reveals no such opportunity here.
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the court by filing, as she did, a motion to vacate which asked the court to reconsider. The
Commonwealth further posits that Mrs. Amos’s motion was unavailing because, following
Brandon v. Cox, ___ Va. ___, ___, 736 S.E.2d 695, 697 (2012), a litigant must not only file a
motion to reconsider with the clerk of court, but also must take steps to ensure that the court is
“made aware of the argument[s]” in the motion to reconsider. Id. We find the Commonwealth’s
arguments unpersuasive for two interrelated reasons.
First, Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a
ruling or order at the time it [was] made, the absence of an objection shall not thereafter
prejudice him . . . on appeal.”
When the language of a statute is unambiguous, we are bound by
the plain meaning of that language. Furthermore, we must give
effect to the legislature’s intention as expressed by the language
used unless a literal interpretation of the language would result in a
manifest absurdity. If a statute is subject to more than one
interpretation, we must apply the interpretation that will carry out
the legislative intent behind the statute.
Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)
(citations omitted). We have no occasion here to spell out how Code § 8.01-384(A) might apply
in other situations. Whatever other situations Code § 8.01-384(A) may cover, it plainly applies
when a litigant has been foreclosed from making a timely objection “at the time the ruling or
order was made.” And it further plainly indicates that a party shall not be prejudiced on appeal
from that lack of opportunity to object at the time the ruling or order was made. To hold that
Mrs. Amos is prejudiced on appeal when she did not have the opportunity to object would
require us to ignore altogether the language in Code § 8.01-384(A) that Mrs. Amos “shall not” be
prejudiced on appeal. We are not at liberty to do so.
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Second, there are situations when a delayed objection does no good.3 A principal
purpose of the contemporaneous objection rule is to place the trial court “in a position, not only
to consider the asserted error, but also to rectify the effect of the asserted error.” Johnson v.
Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002) (citation omitted). Requiring a party to file
a motion to reconsider in order to preserve an issue might be perfectly sensible in some, perhaps
even most, contexts. The same cannot be said, however, with regard to summary contempt.
Summary contempt is “immediate[ly] punish[ed.]” In re Oliver, 333 U.S. 257, 274-75 (1948).
A contempt finding is effective upon oral pronouncement from the bench. See Petrosinelli v.
People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 709, 643 S.E.2d 151, 156 (2007)
(noting that a “court’s contempt power encompasses written orders as well as ‘oral orders,
commands and directions of the court’” (quoting Robertson v. Commonwealth, 181 Va. 520,
537, 25 S.E.2d 352, 359 (1943))). Given the immediacy of summary contempt, it is crucial to
afford the contemnor the opportunity to object immediately before or after the contempt is
pronounced. That way, the trial court will be “in a position, not only to consider the asserted
error, but also to rectify the effect of the asserted error.” Johnson, 264 Va. at 33, 563 S.E.2d at
731.
3
For example, in a jury trial, objections to improper argument must be made before the
case is submitted to the jury – an objection after that time comes too late. Reid v. Baumgardner,
217 Va. 769, 773, 232 S.E.2d 778, 781 (1977). Additionally, in ordinary circumstances, “‘an
objection to the admissibility of evidence must be made when the evidence is presented. The
objection comes too late if the objecting party remains silent during its presentation and brings
the matter to the court’s attention by a motion to strike made after the opposing party has
rested.’” Bitar v. Rahman, 272 Va. 130, 139, 630 S.E.2d 319, 324 (2006) (quoting Kondaurov v.
Kerdasha, 271 Va. 646, 655, 629 S.E.2d 181, 185 (2006)). The dissent, in footnote 10, agrees
that Code § 8.01-384(A) would preserve appellate review in situations where a trial court has
foreclosed an opportunity to contemporaneously make a proffer of evidence, to make objections
to improper argument before a jury, and to make objections to the admissibility of evidence. In
our view, the immediacy of summary contempt is analogous to these situations.
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We further note that Brandon did not involve a situation in which the trial court failed to
afford the appellant an opportunity to contemporaneously object. Instead, the litigant in Brandon
simply missed her first opportunity to object and then sought to make up lost ground by asking
the court to reconsider. Therefore, the Court in Brandon had no occasion to construe the
language from Code § 8.01-384(A) at issue here, namely, that an appellant shall not be
prejudiced on appeal when that litigant “[had] no opportunity to object to a ruling or order at the
time it [was] made.” It is noteworthy that, in quoting from Code § 8.01-384(A) in Brandon, the
Supreme Court specifically omitted the language above by inserting ellipses where this language
appears. ___ Va. at ___, 736 S.E.2d at 696. Nor was Brandon a summary contempt case.
Brandon involved a landlord tenant dispute regarding the return of a security deposit. Id. at ___,
736 S.E.2d at 695. In short, Brandon does not supply the rule of decision here.
Certainly, a person who had no opportunity to object at the time a trial court found her in
summary contempt may be able to and may choose to file a motion to reconsider. It may even be
wise to do so. Such a step, however, is not required under Code § 8.01-384(A) in order to
preserve an issue for appellate review.4 Moreover, forcing a contemnor to seek reconsideration
as the exclusive means of preserving a challenge to a finding of summary contempt places that
person in a precarious position with regard to obtaining appellate review. For one thing, the
contemnor may have served all or part of the sentence for contempt prior to having the chance to
ask for reconsideration and thus face little incentive to seek appellate relief. For another, the
contemnor, like all litigants, has no right to present oral argument on a motion to reconsider.
4
In Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), a summary contempt case,
the Supreme Court of Virginia held the due process argument defaulted on appeal. The litigant,
who appeared as an attorney rather than as a witness, was not, like Mrs. Amos, foreclosed from
offering an objection at the time the Court pronounced its judgment of summary contempt. As
the Court expressly noted, it had no occasion to apply Code § 8.01-384(A) in that case. Id. at
406, 641 S.E.2d at 505. Moreover, the contemnor in Nusbaum received as his punishment a fine
rather than immediate incarceration.
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Instead, such arguments are presented at the discretion of the trial court. Rule 4:15(d). Although
that rule governs civil cases, no case suggests a trial court has any less discretion in a criminal
case. Such matters are commonly disposed of on the pleadings, without a hearing, in criminal
and in civil cases. In addition, if the record does not show that the trial court has been made
aware that a reconsideration motion has been filed, the mere filing of the motion will not be
sufficient to preserve the arguments made for the first time in the reconsideration motion.
Brandon, ___ Va. at ___, 736 S.E.2d at 697. It will not always be clear, particularly to pro se
litigants, how to make the trial court aware of the filing of the motion. Finally, if the court fails
to rule on the motion to reconsider, for whatever reason, and the contemnor does not assign error
to the failure to rule, the appellate court will hold that the issues on which the trial court failed to
rule have been defaulted. Kitchen v. City of Newport News, 275 Va. 378, 387 n.6, 657 S.E.2d
132, 137 n.6 (2008).
We therefore conclude that, in the summary contempt context, the phrase “at the time
[the ruling or order was] made,” found in Code § 8.01-384(A), means that the contemnor must
be afforded the opportunity to object immediately before or after the contempt finding.5
Furthermore, the fact that the trial court never ruled on her motion to reconsider or was not made
aware of it does not foreclose appellate review of Mrs. Amos’s arguments. This conclusion is
driven by a plain language reading of Code § 8.01-384(A), that the absence of such an
opportunity to object “shall not thereafter prejudice [a party] . . . on appeal.” Concretely, this
means that Mrs. Amos may raise arguments on appeal that she did not present at trial.
II. SUMMARY CONTEMPT WAS NOT APPROPRIATE.
We next consider whether the trial court erred in summarily holding Mrs. Amos in
contempt. The answer is fairly straightforward. Indeed, the Commonwealth, which ably presents
5
Our holding should not be interpreted as disturbing settled precedent regarding the rules
of procedural default. As noted above, these rules serve important and salutary purposes.
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arguments on the question of procedural default, does not attempt to defend the correctness of the
summary contempt finding.
Although it is settled law that courts possess the power to summarily hold persons in
contempt, Ex parte Terry, 128 U.S. 289 (1888), the exercise of the summary or direct contempt
power “‘is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.’”
Scialdone, 279 Va. at 442, 689 S.E.2d at 727 (quoting Cooke v. United States, 267 U.S. 517, 539
(1925)). Summary contempt is reserved for ““‘exceptional circumstances” . . . such as acts
threatening the judge or disrupting a hearing or obstructing court proceedings.’” Vaughn v. City of
Flint, 752 F.2d 1160, 1167 (6th Cir. 1985) (quoting Harris v. United States, 382 U.S. 162, 164
(1965)).
The court held Mrs. Amos in summary contempt at the conclusion of a hearing in which she
testified as a witness against her estranged husband. The court based its finding on its conclusion
that she had testified untruthfully and that she was vindictive toward her estranged husband. The
United States Supreme Court in In re Oliver, 333 U.S. 257, explained that
[e]xcept for a narrowly limited category of contempts, due process
of law . . . requires that one charged with contempt of court be
advised of the charges against him, have a reasonable opportunity
to meet them by way of defense or explanation, have the right to be
represented by counsel, and have a chance to testify and call other
witnesses in his behalf, either by way of defense or explanation.
Id. at 275. The Court acknowledged the “narrow exception to these due process requirements”
for summary contempt, but that exception is limited to
charges of misconduct, in open court, in the presence of the judge,
which disturbs the court’s business, where all of the essential
elements of the misconduct are under the eye of the court, are
actually observed by the court, and where immediate punishment is
essential to prevent “demoralization of the court’s authority”
before the public.
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Id. “If some essential elements of the offense are not personally observed by the judge, so that
he must depend upon statements made by others for his knowledge about these essential
elements, due process requires . . . that the accused be accorded notice and a fair hearing as
above set out.” Id. at 275-76.
The truth or falsity of Mrs. Amos’s testimony and whether she was a victim or a
vindictive person “depend[ed] upon statements made by others.” Id. at 275-78. See also
Scialdone, 279 Va. at 445-48, 689 S.E.2d at 729-30. Therefore, summary contempt was not
available. Accordingly, we reverse the judgment of the trial court holding Mrs. Amos in
summary contempt.6
CONCLUSION
We reverse the trial court’s judgment of summary contempt and enter final judgment for
Mrs. Amos.
Reversed and final judgment.
6
The fact that Mrs. Amos impelled the Commonwealth to request the issuance of a show
cause and sent a copy of the letter to the court does not change the answer. Summary contempt
applies when the conduct in question occurs “‘in open court, in the presence of the judge . . .
where all of the essential elements of the misconduct [were] actually observed by the court.’”
Scialdone, 279 Va. at 444, 689 S.E.2d at 728 (quoting In re Oliver, 333 U.S. at 275). Mrs.
Amos’s drafting and mailing of a letter to the Commonwealth’s Attorney, with a copy to the
court, in which she detailed the allegations against her former husband, did not occur in the
presence of the court.
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Felton, C.J., with whom Frank, Kelsey, Beales, and Huff, JJ., join, dissenting.
I respectfully dissent. In my view, the record on appeal reflects that appellant failed to
preserve her assignments of trial court error for appeal, as required by Rule 5A:18. Moreover, I
conclude that the “ends of justice” and “good cause” exceptions to Rule 5A:18 are inapplicable to
this appeal. I would affirm the order of the trial court finding appellant guilty of contempt.
A.
The determination whether appellant is procedurally barred from raising her assertion of
trial court error on appeal, and, if not, whether the trial court erred by finding her guilty of
contempt, is a question of law that this Court reviews de novo. Brown v. Commonwealth, 279
Va. 210, 217, 688 S.E.2d 185, 189 (2010).
The record on appeal shows that, on June 10, 2011, appellant appeared before the trial
court to testify as to why her ex-husband’s probation should be revoked.7 At the conclusion of
the hearing, the trial court dismissed the show cause order against her ex-husband. It then
directed appellant to the front of the courtroom. The trial court stated that it found
overwhelming evidence that appellant “flat-out lied under oath.” It stated that her behavior was
“vindictive” and “very offensive to this Court [and] to every person in the legal community.” It
found that she had “use[d] [the criminal justice system] to further [her] vindictiveness.” The trial
court then found appellant guilty of contempt of court, sentenced her to jail for ten days, set her
bail in the amount of $10,000, and ordered the sheriff’s deputy to take her into custody. The trial
court then proceeded to call the next case on its docket.
7
At the request of the Office of the Commonwealth’s Attorney of Arlington County, the
trial court issued the order for appellant’s former husband to appear and show cause why his
probation should not be revoked. The trial court issued its show cause order after the
Commonwealth’s attorney forwarded a copy of appellant’s letter to the trial court, detailing her
allegations of husband’s egregious and threatening conduct and asserting he violated the
conditions of his probation.
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Appellant posted bail and was released from custody approximately seven hours after the
trial court found her guilty of summary contempt. Seventeen days later, appellant filed a detailed
motion for reconsideration of its finding her guilty of summary contempt, and a motion to vacate
her conviction of contempt, in the trial court.8 The trial court never ruled on appellant’s motion,
and there is no indication in the record that appellant sought a ruling of the court on her motion
for reconsideration or her motion to vacate her contempt conviction.
Where a party fails to obtain a ruling on a matter presented to a trial court, there is
nothing for this Court to review on appeal. Fisher v. Commonwealth, 16 Va. App. 447, 454, 431
S.E.2d 886, 890 (1993). See also Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185,
191 (1967) (assignment of error waived on appeal where the trial court did not rule on
defendant’s objection, and defendant “did not insist that the court rule” on his objection);
Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 262 (2010) (appellant
waived his assignment of error on appeal because he did not obtain a ruling from the trial court
on his pretrial motion to dismiss); Duva v. Duva, 55 Va. App. 286, 299, 685 S.E.2d 842, 849
(2009) (“Because the record does not show that the trial court ruled on appellant’s argument,
there is no ruling of the trial court for this Court to review on appeal.”); Schwartz v.
Commonwealth, 41 Va. App. 61, 71, 581 S.E.2d 891, 896 (2003) (because the trial court never
ruled upon appellant’s motion to set aside his convictions, there was no ruling for this Court to
review on appeal); Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998)
(where the trial court did not rule on appellant’s objection, “there is no ruling for us to review on
appeal”); Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987) (because
appellant failed to obtain a ruling from the trial court on his argument that lineups were
8
Appellant asserted in her motion that the evidence was insufficient for the trial court to
find her guilty of contempt, in violation of Code § 18.2-456(1), and that the trial court deprived
appellant of her right to due process by finding her guilty of contempt in a summary proceeding.
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improperly conducted and the evidence of identification was otherwise insufficient, this Court
had no ruling of the trial court to review).
Because appellant failed to obtain a ruling from the trial court on her motion for
reconsideration of its finding her guilty of contempt within the twenty-one-day period prescribed
by Rule 1:1,9 she has waived the trial court error she assigns on appeal.
B.
Despite appellant’s failure to obtain a ruling from the trial court on her motion to
reconsider its finding her guilty of contempt, the majority concludes that:
[T]he fact that the trial court never ruled on [appellant’s] motion to
reconsider or was not made aware of it does not foreclose appellate
review of Mrs. Amos’s arguments. This conclusion is driven by a
plain language reading of Code § 8.01-384(A), that the absence of
such an opportunity to object “shall not thereafter prejudice [a
party] . . . on appeal.” Concretely, this means that Mrs. Amos may
raise arguments on appeal that she did not present at trial.
Supra at 9.
Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a ruling or
order at the time it [was] made, the absence of an objection shall not thereafter prejudice
him . . . on appeal.”
[T]he lack of an “opportunity to object” . . . relates to the reason
why an objection was not made at the time of the ruling. Thus, the
statutory exception [to the contemporaneous objection rule] is
subsumed under the “good cause” exception [to Rule 5A:18]
because both relate to the reason why an objection was not timely
made.
Campbell v. Commonwealth, 14 Va. App. 988, 995-96, 421 S.E.2d 652, 656-57 (1992) (Barrow,
J., concurring) (citations omitted).
9
Rule 1:1 provides, in pertinent part, that the trial court may modify, vacate, or suspend
any final order of the trial court within “twenty-one days after the date of entry, and no longer.”
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In Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), the Supreme Court
considered whether the trial court violated Nusbaum’s right to due process by summarily
convicting him of indirect criminal contempt. The Court held that Nusbaum waived his due
process argument on appeal because he did not afford the trial court the opportunity to rule on
that assertion, as required by Rule 5:25. The Court concluded that the record on appeal did not
present
a situation where the circuit court prevented Nusbaum from
voicing his objections, asking the court to rule on them, or
requesting the court to reconsider a ruling. See Code § 8.01-384
(“if a party has no opportunity to object to a ruling or order at the
time it is made, the absence of an objection shall not thereafter
prejudice him . . . on appeal”).
* * * * * * *
While Nusbaum was perhaps surprised when the circuit court
found him guilty of contempt of court, he subsequently stated his
due process objections and had ample opportunities to ask the
circuit court to rule on them.
Id. at 406, 641 S.E.2d at 505 (emphasis added). Despite the Supreme Court’s acknowledgment
that Nusbaum was “surprised” by the trial court’s ruling, and its acknowledgment that his
surprise excused his failure to object at the time the ruling was made, the Supreme Court found
that he waived his arguments on appeal because he subsequently gained the opportunity to ask
the trial court to rule on his objections, yet he failed to do so. Cf. Jones v. Commonwealth, 194
Va. 273, 280, 72 S.E.2d 693, 697 (1952) (Supreme Court reached the merits of defendants’
appeal despite their failure to contemporaneously object to the trial court’s ruling because
defendants were “taken by surprise at the occurrence” and they “assigned the action of the trial
court as the basis for their motion to set aside the verdict” (emphasis added)).
Stated differently, the saving provision of Code § 8.01-384(A) protects an appellant from
waiving on appeal only those objections that could not be made at the time of the ruling and that
- 15 -
could not be cured by a post-conviction motion.10 Clearly, the record shows that, even though
she may have been taken aback by the trial court’s ruling, not only did appellant have an
opportunity to object by way of asking the trial court to reconsider its contempt finding, she
actually filed a written motion asking the trial court to do so well within the twenty-one-day
period prescribed by Rule 1:1. Although Code § 8.01-384(A) protects a party from prejudice on
appeal in the event that she is prevented from asserting a contemporaneous objection in the trial
court, an appellant still may be prejudiced by her failure to obtain a ruling from the trial court on
a later filed objection. Many procedural default cases take into account that, with or without a
good cause explanation for not making an earlier objection, the “defendants have offered no
explanation for their [later] failure to bring their objections to the attention of the trial court
before the judgment order became final.” Faizi-Bilal Int’l Corp. v. Burka, 248 Va. 219, 223, 445
S.E.2d 125, 127 (1994).11
10
For example, an appellant’s failure to proffer the evidence she expected to obtain from
excluded testimony would normally foreclose an appellate court from determining whether the
trial court committed reversible error by disallowing the testimony. See, e.g., Ray v.
Commonwealth, 55 Va. App. 647, 649, 688 S.E.2d 879, 880 (2010) (“‘When an appellant claims
a trial court abused its discretion in excluding evidence, we cannot competently determine error
— much less reversible error — without a proper showing of what that testimony would have
been.’” (quoting Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977))). If,
however, the record showed that the trial court prohibited a defendant from making a proffer, the
saving provision of Code § 8.01-384(A) would permit appellate review of whether the trial court
committed reversible error by refusing to allow the defendant to introduce the expected evidence.
See, e.g., Edwards v. Commonwealth, 19 Va. App. 568, 572-73, 454 S.E.2d 1, 3 (1995)
(“[U]nder the particular facts of this case, appellant’s failure to proffer does not preclude our
consideration of this issue. . . . [T]here was no way appellant could have proffered what a
potential cross-examination answer would have been until he laid the initial foundation,” which
the trial court erroneously refused to permit him to do.). In addition, Code § 8.01-384(A) would
permit appellate review of objections to improper argument before a jury and objections to the
admissibility of evidence, both of which ordinarily must be made contemporaneously or are
forever waived, if the record showed that the trial court foreclosed a litigant from making the
objection at the time the error occurred.
11
The same is true in workers’ compensation cases. For example, a claimant may make
two arguments in favor of an award of compensation. The commission, in turn, may issue an
opinion denying coverage on one of the two grounds but refusing to address the second ground.
- 16 -
“Simply put, a defendant may not rely upon Code § 8.01-384(A) to preserve for appeal
an issue that he never allowed the trial court to rule upon.” Murillo-Rodriguez v.
Commonwealth, 279 Va. 64, 84, 688 S.E.2d 199, 210 (2010). Here, appellant had ample time to
seek a ruling on her motion asking the trial court to reconsider its finding her in summary
contempt, yet she failed to do so.12 Even assuming, without deciding, that the trial court
prevented appellant from making a contemporaneous objection to its finding her guilty of
summary contempt, her failure to obtain a ruling from the trial court on her motion to reconsider
that finding bars this Court’s consideration of her argument on appeal.13
By issuing a final opinion without a hearing, the commission effectively precludes a
contemporaneous objection to its error. The saving provision of Code § 8.01-384(A), like the
“good cause” exception to Rule 5A:18, excuses the claimant for not objecting “at the time [the
ruling] [was] made” because it was impossible for the claimant to do so. However, the appeal
still fails if the claimant neglected to file an after-the-fact motion to reconsider. See Williams v.
Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (“Finally, the
requirement that a litigant file a motion for rehearing or reconsideration to preserve an issue for
appeal under these circumstances is not a new requirement. The Court of Appeals has
consistently held that the failure to file such motions under these circumstances bars raising the
issue on appeal.”); Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 253, 708 S.E.2d 429, 434
(2011) (this Court refused to consider an issue on appeal because claimant did not file a motion
to reconsider after the commission failed to address an issue he raised for review).
12
The majority cites Rule 4:15(d) in support of its assertion that “a litigant has no right to
present oral argument on a motion to reconsider. Instead, such arguments are presented at the
discretion of the trial court.” Notably, Rule 4:15(d) is a rule of civil procedure that, on its face,
relates only to “all civil case motions.” There is no corollary rule for criminal case motions that
prohibits oral argument on a motion for reconsideration except “at the request of the court.”
Rule 4:15(d); see generally Part 3A of the Rules of the Supreme Court of Virginia.
13
That appellant initially appeared before the trial court as a witness at the show cause
hearing she initiated does not excuse her failure to preserve her argument that the trial court erred
by finding her guilty of contempt. See, e.g., Townes v. Commonwealth, 234 Va. 307, 319, 362
S.E.2d 650, 656 (1987) (“[T]he ‘right of self-representation is not a license’ to fail ‘to comply
with the relevant rules of procedural and substantive law.’” (quoting Faretta v. California, 422
U.S. 806, 834-35 n.6 (1975))).
- 17 -
C.
In my view, appellant failed to preserve her assignments of trial court error for appeal.
However, appellant’s request that this Court invoke the “good cause” or “ends of justice”
exception to Rule 5A:18 to reverse her conviction must be considered.
The ends of justice exception “is narrow and is to be used sparingly.” Brown v.
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). “In order to avail oneself of the
exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not
that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487
S.E.2d 269, 272 (1997) To establish that a clear miscarriage of justice has occurred, appellant
must demonstrate that she was found guilty of conduct that did not constitute contempt, or the
record must affirmatively prove that an element of the offense did not occur. Id. at 221-22, 487
S.E.2d at 273.
Appellant has not demonstrated that she was found guilty of conduct that was not
contempt, and the record does not show that an element of contempt, a common law offense, did
not occur. The Supreme Court has long held that perjury may be punished as contempt, so long
as there is “added to the essential elements of perjury under the general law the further element
of obstruction to the court in the performance of its duty.” Ex parte Hudgings, 249 U.S. 378, 383
(1919). The trial court explicitly found that appellant lied under oath. It found that she
obstructed the court in the administration of its duties by writing a falsified letter to the
Commonwealth’s Attorney that implored the trial court’s assistance and invoked its jurisdiction.
Accordingly, I would decline to apply the ends of justice exception to reach the merits of
appellant’s assignment of error.14
14
Appellant asserts that the trial court erred by finding her guilty of contempt in a
summary proceeding. However, whether the trial court erred by punishing her summarily is
merely a question of procedure; it has no bearing on whether the substantive elements of the
contemptible conduct, here perjury and obstruction of justice, occurred.
- 18 -
Similarly, I find no basis to apply the good cause exception to Rule 5A:18. “‘Good
cause’ relates to the reason why an objection was not stated at the time of the ruling.” Campbell,
14 Va. App. at 996, 421 S.E.2d at 656 (Barrow, J., concurring). When an accused has ample
opportunity to bring a purported error to the trial court’s attention but fails to do so, the good
cause exception does not apply. Andrews v. Commonwealth, 37 Va. App. 479, 493-94, 559
S.E.2d 401, 409 (2002). Here, nothing prevented appellant from objecting after the trial court
found her guilty of contempt. Even if the circumstances were such that she was taken aback by
the trial court’s ruling, she filed a post-conviction motion asking the trial court to reconsider its
ruling within the twenty-one-day period prescribed by Rule 1:1. However, appellant deprived
the trial court of its jurisdiction to consider her motion for reconsideration by filing a notice of
appeal to this Court on the same day she filed her motion asking the trial court to reconsider its
finding her guilty of contempt. See McCoy v. McCoy, 55 Va. App. 524, 528, 687 S.E.2d 82, 84
(2010) (“When a party files a notice of appeal, that notice ‘effectively transfers jurisdiction from
the lower court to the appellate court and places the named parties within the jurisdiction of the
appellate court.’” (quoting Watkins v. Fairfax County Dep’t of Family Servs., 42 Va. App. 760,
771, 595 S.E.2d 19, 25 (2004))); Walton v. Commonwealth, 256 Va. 85, 95, 501 S.E.2d 134, 140
(1998) (once an appellate court acquires jurisdiction of a case, the jurisdiction of the trial court
from which the appeal was taken ceases). Because appellant moved the trial court to reconsider
its finding her guilty of contempt, but deprived the trial court of the opportunity to rule on her
motion, the good cause exception to Rule 5A:18 does not apply.
Accordingly, I find no basis to invoke either the “good cause” or “ends of justice”
exception to Rule 5A:18 to reach the merits of appellant’s argument on appeal.
- 19 -
D.
Because appellant failed to preserve her assignments of trial court error for appeal, and
because neither the “ends of justice” nor “good cause” exceptions to Rule 5A:18 are applicable, I
would affirm the judgment of the trial court finding appellant guilty of contempt.
- 20 -
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 23rd day of October, 2012.
UNPUBLISHED
Felecia Amos, Appellant,
against Record No. 1667-11-4
Circuit Court No. CR10-402-(01)
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On August 21, 2012 came the appellant, by counsel, and filed a petition requesting that the Court set
aside the judgment rendered herein on August 7, 2012, and grant a rehearing en banc on the issue(s) raised in
the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s)
raised therein, the mandate entered herein on August 7, 2012 is stayed pending the decision of the Court en
banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the appendix
previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies
of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of
this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe
Acrobat Portable Document Format (PDF). 1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
-2-
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges McCullough and Huff
Argued by teleconference
FELECIA AMOS
MEMORANDUM OPINION * BY
v. Record No. 1667-11-4 CHIEF JUDGE WALTER S. FELTON, JR.
AUGUST 7, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
(Felecia Amos, pro se, on briefs). Appellant submitting on briefs.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II,
Attorney General, on brief), for appellee.
Felecia Amos (“appellant”) appeals from her conviction for contempt, in violation of Code
§ 18.2-456(1), following a summary proceeding in the Circuit Court of Arlington County (“trial
court”). Appellant asserts the trial court erred by finding the evidence sufficient to sustain her
conviction for contempt. She asserts the trial court erred by punishing her for summary contempt
and that the summary proceeding violated her right to due process by failing to afford her notice of
the charge against her, a full hearing, assistance of counsel, and the ability to confront witnesses.
Because appellant failed to preserve her assignments of error for appeal, and because the ends of
justice exception to Rule 5A:18 does not apply, we affirm.
I. BACKGROUND
By final order dated July 30, 2010, the trial court convicted Antonio Amos (“Antonio”),
appellant’s former husband, of assault and battery of appellant. The trial court sentenced him to
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
six months in jail, suspended for one year on the condition that he not have contact with
appellant except for visitation exchanges of their child, and ordered that he not “harass”
appellant.
On October 30, 2010, appellant wrote a letter to the Commonwealth’s Attorney for
Arlington County (“Commonwealth’s attorney”), asserting that Antonio violated the terms of the
trial court’s final order.1 Appellant asserted that, on two separate dates, Antonio “intimidate[d],
harass[ed], and threaten[ed]” her during an exchange of their child for visitation at a fast-food
restaurant. She asserted that Antonio repeatedly cursed and threatened her, that she had to ask an
individual to escort her to her car because of Antonio’s threatening behavior, that Antonio followed
her in his vehicle after she left the restaurant with their son, and that he did not stop following her
until she pulled over, forcing him to pass her. Appellant wrote that she feared for her life and was
afraid that Antonio would harm her. She requested help from the Commonwealth’s attorney,
stating she did not “have the resources to prevent the continued harassment and threats.”2
By memorandum dated November 4, 2010, the Commonwealth’s attorney sent a copy of
appellant’s letter to the trial court, requesting that the trial court issue an order to show cause why
Antonio’s probation should not be revoked and a bench warrant for his arrest “based on the
allegations in the attached letter.” On December 3, 2010, the trial court issued its order for Antonio
1
Appellant indicated in her letter to the Commonwealth’s attorney that she also mailed a
copy of her letter to the trial court.
2
Appellant wrote, in part:
This constant communication and intimidation is causing so much
stress for me. I want to believe that the ORDER is not just a piece
of paper but carr[ies] the weight and authority as it was stated by
the [trial court]--NO EXCEPTIONS. Please do not let my
situation become some comment with a bad ending. I have done
all that I know how to do. . . . I honestly believe that the
threatening behavior is ESCALATING. Help me.
-2-
to appear and to show cause why his probation should not be revoked “for failure to comply with
the terms of his general good behavior condition as ordered by the [trial] [c]ourt.”
The show cause hearing was held on June 10, 2011. The Commonwealth’s attorney stated
at the hearing that appellant’s letter “set[] out the reasons for” the show cause hearing before the
trial court.
Appellant appeared and testified in conformity with the allegations contained in her letter to
the Commonwealth’s attorney dated October 30, 2010. Antonio and United States Army Sergeant
Jason Salinas testified in Antonio’s defense.3 Both men testified that Antonio did not speak to,
curse at, harass, threaten, or follow appellant during the visitation exchanges in question, and both
men confirmed that appellant was not aware that Salinas was a witness to the exchanges. Antonio
testified that he videotaped one of the visitation exchanges about which appellant complained.
He stated he used a camera mounted to the dashboard of his car. As to the second exchange to
which appellant referred in her letter to the Commonwealth’s attorney and testimony in court,
Antonio testified that prior to entering the restaurant to pick up his son, he “wired” himself with
a tape recorder. Sergeant Salinas testified that he was not aware that Antonio recorded the
visitation exchanges to which he was a witness. 4
At the conclusion of the hearing, the trial court dismissed the show cause order against
Antonio, stating, “[t]here’s no question that [Antonio] has not violated this [c]ourt’s orders. But
3
Antonio was a retired U.S. Army Colonel at the time of the show cause hearing. Salinas
testified that his commanding officer asked him to observe Antonio’s visitation exchanges with
appellant on October 21 and 29, 2010. Salinas did not know Antonio prior to witnessing the
visitation exchanges of the child, and Salinas was never under Antonio’s command.
4
The audio recording of the visitation exchange was played for the trial court. The
recording did not contain any of the remarks or threats that appellant attributed to Antonio in her
letter to the Commonwealth’s attorney or in her testimony regarding the incident.
-3-
what we do have is a . . . situation that this [c]ourt does not take lightly.” The trial court ordered
appellant to the podium and stated:
You have come into this court and made some serious accusations,
and you have flat-out lied under oath. And it’s very offensive to
this [c]ourt, to every person in the legal community what you’re
doing. You’re nothing but a vindictive woman towards this man.
I can understand your dislike for whatever reason. But you will
not, as far as this [c]ourt is concerned, use this process to further
that vindictiveness.
The trial court then found appellant in summary contempt for “[m]isbehavior in the presence of
the court or so near thereto as to obstruct or interrupt the administration of justice.” The trial
court stated, “I can’t think of any more interruption of justice than what you have done
deliberately in this courtroom.” The trial court then sentenced appellant to ten days in jail and
ordered that she be taken into custody immediately. Appellant did not raise any objection at that
time to the trial court’s ruling.
On June 27, 2011, seventeen days after the trial court found her in contempt, appellant
filed a pleading entitled “Motion to Vacate Sentence and Object to This Honorable Courts [sic]
Finding.” 5 In that pleading, appellant asserted she testified truthfully about the events that took
place during the visitation exchanges. She contended the trial court failed to give her an
opportunity to “explain, respond and/or object to being held in contempt,” to have counsel
present, or to have notice and a hearing. She contended the trial court denied her “all her due
process rights as afforded under The Constitution of the United States of America.” Appellant
asserted her conduct should not have been subject to summary contempt proceedings because “it
5
“All final judgments, orders, and decrees, irrespective of terms of court, shall remain
under the control of the trial court and subject to be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer.” Rule 1:1.
-4-
was not an open, serious threat to orderly procedure” and fell outside the “scope” of Code
§ 18.2-456(1).
Appellant did not seek a hearing to argue her motion to vacate, and the trial court never
ruled on that motion.
II. ANALYSIS
Appellant asserts the trial court erred by finding the evidence sufficient to sustain her
conviction for contempt. She asserts that, even if her testimony was perjured, “[p]erjured
testimony, whether written or oral, is not a contemptuous act by itself.” Appellant’s Br. at 11.
Accordingly, she asserts the trial court erred by punishing her for summary contempt and that the
summary proceeding violated her right to due process by failing to afford her notice of the charge
against her, a full hearing, assistance of counsel, and the ability to confront witnesses. Finally,
appellant asserts the trial court “conspired with the Defense Counsel and the Commonwealth of
Virginia to prevent [her] from receiving any notice of the potential outcome” and the trial court
“should have recused himself” before ruling on her contempt charge. Id. at 16-17.
A.
Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the
ends of justice.”
“To preserve an issue for appeal, appellant must make a contemporaneous objection to
the court’s ruling.” Sabol v. Commonwealth, 37 Va. App. 9, 20, 553 S.E.2d 533, 538 (2001).
-5-
Appellant did not object to the trial court’s ruling at the summary proceeding. 6 She asserts
that her motion to vacate her conviction preserved her arguments for appeal, notwithstanding the
trial court’s failure to rule on appellant’s motion. However, as the Supreme Court recently held in
Brandon v. Cox, 284 Va. 251, 726 S.E.2d 298 (2012):
Brandon filed a motion for reconsideration with a supporting
memorandum containing the argument she advances on appeal
but . . . [she] failed to obtain a ruling on her motion to
reconsider. . . . Nothing in the record indicates that the trial court was
made aware that the motion for reconsideration and memorandum in
support thereof were filed . . . . Because there is no evidence in the
record that the trial court had the opportunity to rule upon the
argument that Brandon presents on appeal, it cannot be said that the
case can be heard in this Court upon the same record upon which it
was heard in the trial court and, therefore, the purpose of
Rule [5A:18] is defeated. Thus, we must hold that she has waived
her argument by failing to preserve it.
Id. at 256-57, 726 S.E.2d at 301 (footnote omitted).
Because appellant failed to obtain a ruling on her motion to vacate her conviction while the
trial court retained jurisdiction over her case, she has waived her arguments on appeal. Rule 5A:18;
see also Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488-89 (1998) (argument
barred from appellate consideration under Rule 5A:18 where appellant did not obtain a ruling from
the trial court on post-trial motion to set aside court costs).
B.
To the extent appellant failed to present her arguments to the trial court, she asks that we
consider them under the ends of justice exception to Rule 5A:18.
“Whether the ends of justice provision should be applied involves two questions:
(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the
6
Appellant contends she was unable to object to the trial court’s ruling because the trial
court gave her no opportunity to speak and ordered that she be taken into custody immediately.
However, the record on appeal fails to show that the trial court took any action to prevent her from
objecting to its ruling prior to the sheriff’s deputy taking her into custody.
-6-
ends of justice provision would result in a grave injustice.” Gheorghiu v. Commonwealth, 280 Va.
678, 689, 701 S.E.2d 407, 413 (2010) (interpreting corollary Supreme Court Rule 5:25).
Historically, “[w]e have applied the ends of justice exception of Rule [5A:18] in very limited
circumstances including, for example, where the record established that an element of the crime did
not occur; a conviction based on a void sentence; [and] conviction of a non-offense.” Id. at 689,
701 S.E.2d at 414 (citations omitted).
Here, at the conclusion of the show cause hearing, the trial court convicted appellant of
summary contempt for “[m]isbehavior in the presence of the court, or so near thereto as to obstruct
or interrupt the administration of justice.” Code § 18.2-456(1).7 Contrary to appellant’s assertion,
the trial court did not convict appellant of “conduct (testifying), that was not a criminal offense.”
Appellant’s Br. at 12. The trial court found that appellant “vindictive[ly]” instigated the court’s
revocation process against Antonio to obtain a baseless conviction against him, purposefully
caused Antonio to appear before the trial court to respond to her knowingly false accusations,
and disturbed the trial court’s ability to effectively administer justice. The trial court found that
the show cause order and hearing were entirely premised on appellant’s calculated misuse of the
judicial system, including her letter to the Commonwealth’s attorney imploring his assistance to
institute revocation proceedings of Antonio’s probation and cause him to be incarcerated.
7
The dissent, citing Taylor v. Hayes, 418 U.S. 488, 498 (1974), notes that “[s]ummary
contempt is viewed with particular disfavor when a court delays punishing a direct contempt
until the completion of trial.” Infra at 12. We agree that “[t]he usual justification of necessity
[of summary punishment] is not nearly so cogent when final adjudication and sentence are
postponed until after trial.” Taylor, 418 U.S. at 497. However, we note that the Court in Taylor
held that, under “proper circumstances, . . . [summary punishment] may be postponed until the
conclusion of the proceedings.” Id. at 498; see also Scialdone v. Commonwealth, 279 Va. 422,
447, 689 S.E.2d 716, 730 (2010) (“Circumstances will undoubtedly arise when a trial court
observes the essential elements of the contemptible conduct, but nonetheless needs to ask
questions to clarify some detail.”).
-7-
Moreover, appellant’s “vindictive” misuse of the judicial system to compel her former
husband to be brought, without legal justification, before the trial court to show cause why his
probation should not be revoked, occurred openly and in the presence of the trial court.
Appellant’s letter to the Commonwealth’s attorney, copied to the trial court, in which she
knowingly falsely asserted that Antonio violated his probation, was misbehavior sufficiently near
the presence of the trial court that the court could consider it as part of the misconduct that
supported appellant’s conviction for contempt, in a summary proceeding, pursuant to Code
§ 18.2-456(1).
Accordingly, appellant cannot demonstrate, as she must to invoke the ends of justice
exception to Rule 5A:18, that the trial court convicted her of conduct that was not a criminal
offense.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court convicting appellant
of contempt, in violation of Code § 18.2-456(1). 8
Affirmed.
8
Similarly, the record does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18 for appellant’s assertion that the trial court conspired with
Antonio’s counsel and the Commonwealth’s attorney to prevent her from receiving notice of the
potential outcome of the June 10, 2011 revocation hearing.
-8-
McCullough, J., dissenting.
All too often, instead of a search for the truth, trials devolve into a revolting spectacle of
transparent lies. In the face of testimony that reeks of perjury, it is understandable that a trial
court would hold a witness in contempt. The power of direct contempt, however, is and should
be narrowly circumscribed. In my view, summary contempt was not available here. 9
Furthermore, I would hold that appellant’s arguments are not procedurally defaulted on these
unusual facts.
I. AMOS’S ARGUMENTS ARE NOT PROCEDURALLY DEFAULTED.
Rule 5A:18 requires that a litigant timely object to an action by the trial court; failure to
do so precludes the appellate court from considering the issue. The purpose of this
contemporaneous objection rule “is to ensure that the trial court has the opportunity to rule
intelligently on a party’s objections and avoid unnecessary mistrials or reversals.” Johnson v.
Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002).
The majority holds that Amos’s argument is defaulted because she never obtained a
ruling on her motion to vacate the contempt order. We have held in some circumstances that a
litigant who fails to obtain a ruling at trial has forfeited the point for purposes of appellate
review. See Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998). In
Brandon v. Cox, 284 Va. 251, 256-57, 726 S.E.2d 298, 301 (2012), the Supreme Court of
Virginia recently held that a motion for reconsideration was insufficient to avoid procedural
default because no hearing was requested on the motion and neither was a ruling sought from the
9
This is not to say that Amos cannot be held accountable. The Commonwealth’s
Attorney, the officer who bears the responsibility for prosecuting violations of the criminal laws
of the Commonwealth in a given locality, can choose in her discretion whether the facts warrant
charging Amos with perjury. Similarly, Amos might be held in indirect contempt following
notice and the opportunity to be heard, as required by the Due Process Clause and precedent
from the Supreme Court of Virginia.
-9-
trial court. Without such an additional step, beyond the mere filing of the motion for
reconsideration, the Court concluded that the motion did not fall within the strictures of Code
§ 8.01-384(A). That statute provides in relevant part that “[n]o party, after having made an
objection or motion known to the court, shall be required to make such objection or motion again
in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order,
or action of the court.” (Emphasis added). In other words, in the wake of Brandon, merely filing
a motion for the court to reconsider its ruling in time for corrective action is not sufficient if the
reconsideration motion is the first time a litigant raises a particular argument or objection; an
additional step must be taken to make sure that this motion is “known to the court.” 10 Amos did
not seek to place her motion on the docket or otherwise make it known to the trial court. At first
blush, Brandon may appear controlling. In my view, that is not so, for two reasons.
First, Code § 8.01-384(A) provides that “if a party has no opportunity to object to a ruling
or order at the time it is made, the absence of an objection shall not thereafter prejudice him on
motion for a new trial or on appeal.” The majority holds that the record does not show that
Amos was prevented from speaking following the court’s announcement that she was being held
in contempt. I read the record differently.
At the conclusion of the hearing, the trial court dismissed the rule to show cause filed by
the Commonwealth. The court then stated that it was “not through.” The court summoned
Amos to come up and noted that “what we do have is a . . . situation that this Court does not take
10
On one reading, Code § 8.01-384(A) assumes that the act of filing objections or a
motion for reconsideration, without more, makes the objection or motion known to the trial
court. The statute provides that “[a]rguments made at trial via written pleading, memorandum,
recital of objections in a final order, oral argument reduced to transcript, or agreed written
statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for
assertion on appeal.” (Emphasis added). The statute does not expressly require a litigant to
place the motion or objection on the docket to make it known to the trial court. Such a reading
of the statute, however, is foreclosed by the holding in Brandon.
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lightly.” In an uninterrupted monologue, the court chided Amos because she had “flat out lied
under oath” and the court stated that it would not tolerate Amos using the court process to further
her vindictiveness toward her former husband. The court found that Amos had engaged in
“[m]isbehavior in the presence of the court or so near thereto as to obstruct or interrupt the
administration of justice.” The court then stated that:
I can’t think of any more interruption of justice than what
you have done deliberately in this courtroom.
And the Court finds you in contempt of court. You’re
sentenced to jail for ten days.
Remand her into custody, Sheriff.
THE COURT: Call the next case.
(Whereupon, the proceedings at 11:00 a.m. were concluded).
Unsurprisingly, Amos did not object at the time. As I read this record, and applying the plain
language of Code § 8.01-384(A), Amos had “no opportunity to object to a ruling or order at the
time it is made,” and, therefore, “the absence of an objection shall not thereafter prejudice [her]
. . . on appeal.” Neither Brandon nor Ohree address that portion of the statute and, therefore, do
not control.
Applying procedural default in this circumstance is problematic for a second reason. We
expect lawyers or pro se litigants to come to court prepared and to be aware of the rules. An
adversarial system of justice requires as much to function properly. Therefore, if a party does
not object, that failure to timely object ordinarily will foreclose appellate review of the issue for
which there was no timely objection. Here, Amos was a witness, not a party. To expect parties
to come to court prepared to timely object is sensible enough. To expect a witness to master the
nuances of due process and summary contempt versus indirect contempt is to expect the
impossible. Rule 5A:18 presupposes that the person who is expected to object is an attorney or a
pro se litigant rather than a witness and, consequently, the procedural bar does not apply here.
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II. SUMMARY CONTEMPT WAS NOT APPROPRIATE BASED ON THE TESTIMONY OF A WITNESS,
EVEN IF THAT TESTIMONY IS PERJURED.
The exercise of the contempt power “‘is a delicate one and care is needed to avoid arbitrary
or oppressive conclusions.’” Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727
(2010) (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)). Summary contempt is reserved
for “exceptional circumstances . . . such as acts threatening the judge or disrupting a hearing or
obstructing court proceedings.” Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985). The
United States Supreme Court has held that holding a witness in contempt based on that witness’
testimony alone violates due process. In re Oliver, 333 U.S. 257, 284 (1948); see also Ex parte
Hudgings, 249 U.S. 378 (1919) (court lacks the power to hold a witness in summary contempt
based on untruthful testimony; the individual held in contempt must also harbor an obstructive
intent). Summary contempt is viewed with particular disfavor when a court delays punishing a
direct contempt until the completion of trial. See Taylor v. Hayes, 418 U.S. 488, 498 (1974). In
that situation, “it is much more difficult to argue that action without notice or hearing of any kind
is necessary to preserve order and enable [the court] to proceed with its business.” Id. It is clear
from the record that the trial court held Amos in contempt based on her testimony, testimony that
the court believed (not without reason) was perjured. On these facts, holding Amos in summary
contempt was error. I would, therefore, reverse the judgment below. 11
Accordingly, I respectfully dissent.
11
The fact that Amos impelled the Commonwealth to file a show cause does not change
the answer. Summary contempt applies when the conduct in question occurs “‘in open court, in
the presence of the judge . . . where all of the essential elements of the misconduct [were]
actually observed by the court.’” Scialdone, 279 Va. at 444, 689 S.E.2d at 728 (quoting In re
Oliver, 333 U.S. at 275). Amos’s drafting and mailing of a letter to the Commonwealth
Attorney, with a copy to the court, in which she detailed the allegations against her former
husband, did not occur in the presence of the court.
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