Commonwealth v. Amos

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
McClanahan, JJ., and Lacy, S.J.
COMMONWEALTH OF VIRGINIA
v. Record No. 130757 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
FELECIA AMOS February 27, 2014
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether the Court of Appeals
erred in holding that the contemporaneous objection exception in
Code § 8.01-384(A) allows a litigant who was precluded by the
trial court from asserting a contemporaneous objection to the
court’s ruling or order to raise the issue on appeal,
notwithstanding the provisions of Rule 5A:18.
I. BACKGROUND
In July 2010, Antonio Jose Amos was convicted in the
Circuit Court of Arlington County of assaulting his estranged
wife, Felecia Amos. Mr. Amos was sentenced to six months’
incarceration, suspended for one year conditioned on good
behavior, and ordered, as relevant here, to have no contact with
Felecia Amos and to not harass her.
Three months later, in October 2010, Ms. Amos wrote a
letter to an Assistant Commonwealth’s Attorney for Arlington
County alleging that Mr. Amos had harassed her through telephone
calls and text messages and that he had threatened her during
two custody exchanges of their son. She alleged that Mr. Amos’
actions violated the terms of his probation and that she was
seeking help from the Commonwealth Attorney’s Office because she
was “in fear of [her] life.” Based on this letter, the
Assistant Commonwealth’s Attorney sought and obtained a rule to
show cause against Mr. Amos.
At the hearing on the show cause order, Ms. Amos testified,
among other things, that during a particular custody exchange
Mr. Amos harassed and threatened her, used profanity against
her, told her she was “going down,” and followed her in his car
when she left the premises. Her testimony was contradicted by
the testimony of Mr. Amos and another individual who had
accompanied him to the custody exchange. The trial court also
heard a tape recording of the incident made by Mr. Amos that was
consistent with Mr. Amos’ testimony. The Commonwealth provided
no rebuttal testimony or other evidence.
The trial court ruled that Mr. Amos had not violated the
terms and conditions of his probation and dismissed the rule to
show cause. The trial judge then stated that he was “not
through.” He called Ms. Amos to “[s]tand in front of [the]
podium” and told her that she had “flat-out lied under oath,”
was “nothing but a vindictive woman towards [Mr. Amos],” and
that she was not going to “use this process to further that
vindictiveness.” The trial judge then summarily held Ms. Amos
in contempt of court pursuant to Code § 18.2-456, sentenced her
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to jail for ten days, remanded her into custody, and called the
next case. Ms. Amos was immediately taken to jail. She did not
object or make any statements to the trial judge at the time of
the contempt ruling on June 10, 2011.
On June 27, 2011, Ms. Amos, pro se, filed a “MOTION TO
VACATE SENTENCE AND OBJECT TO THIS HONORABLE COURT['S] FINDING.”
Ms. Amos argued that she testified truthfully, was never given
an opportunity to object to the trial court’s finding of
contempt, that the trial court deprived her of her
constitutional rights to due process, and that her conduct did
not require summary punishment because it was not an open,
serious threat to orderly procedure. Ms. Amos simultaneously
filed a notice of appeal to the Court of Appeals of Virginia.
No hearing was held or ruling issued on Ms. Amos’ pro se motion.
In her petition for appeal to the Court of Appeals, Ms.
Amos assigned error to the trial court’s order of conviction,
asserting that there was insufficient evidence to support the
summary contempt conviction and that her constitutional due
process rights were violated. The Commonwealth contended that
Ms. Amos failed to preserve the issues she raised on appeal
because she did not object at the time the trial court held her
in contempt and she did not get a ruling on her motion for
reconsideration or show that the trial court was made aware of
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her arguments as required by Rule 5A:18 and Brandon v. Cox, 284
Va. 251, 736 S.E.2d 695 (2012).
The Court of Appeals en banc reversed Ms. Amos’ summary
contempt conviction and entered final judgment in a 6-5
decision. Amos v. Commonwealth, 61 Va. App. 730, 740 S.E.2d 43
(2013). The majority concluded that the trial court deprived
Ms. Amos of any opportunity to object at the time of the ruling
and
[t]he 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.”
Id. at 737, 741, 740 S.E.2d at 46-47, 49.
The Commonwealth appealed to this Court, assigning error to
that part of the Court of Appeals’ judgment holding that
pursuant to Code § 8.01-384(A) Ms. Amos did not default the
arguments raised on appeal. The Commonwealth did not assign
error to the Court of Appeals’ holding that Ms. Amos was denied
the opportunity to object at the time of the summary contempt
ruling or the Court of Appeals’ reversal of the summary contempt
conviction.
II. ANALYSIS
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This appeal requires us to construe relevant provisions of
Code § 8.01-384(A). Issues of statutory construction are
questions of law which we review de novo. Jay v. Commonwealth,
275 Va. 510, 517, 659 S.E.2d 311, 315 (2008). We apply the
plain meaning of the language appearing in the statute unless it
is ambiguous or applying the plain language leads to an absurd
result. Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d
642, 644 (2012).
Code § 8.01-384(A) addresses the various actions that a
party may take to preserve an issue or argument for assertion on
appeal. 1 It also contains an exception to the contemporaneous
objection requirement which provides:
1
Code § 8.01-384(A) provides as follows:
Formal exceptions to rulings or orders of the court
shall be unnecessary; but for all purposes for which
an exception has heretofore been necessary, it shall
be sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to
the court the action which he desires the court to
take or his objections to the action of the court and
his grounds therefor; and, 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. No 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. No party shall be deemed to have agreed to, or
acquiesced in, any written order of a trial court so
as to forfeit his right to contest such order on
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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.
Id.
The Commonwealth argues that although Code § 8.01-384(A)
may excuse the requirement of a contemporaneous objection, it
does not immunize the litigant from affording the trial court an
opportunity to rule on his objection at a later point in the
proceeding and obtaining a ruling on that objection under Rule
5A:18 and Nusbaum v. Berlin, 273 Va. 385, 406-07, 641 S.E.2d
494, 505-06 (2007). We disagree.
The plain language of the contemporaneous objection
exception in Code § 8.01-384(A) states that when the litigant,
through no fault of his own, is prevented from making a
contemporaneous objection to the court’s ruling or order, the
failure to object “shall not thereafter prejudice” the litigant
on appeal. (Emphasis added.) This language is clear and
unqualified. The statute imposes no requirement that when the
contemporaneous objection exception applies, a party, if able,
appeal except by express written agreement in his
endorsement of the order. Arguments 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.
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must file a post-conviction objection or otherwise bring the
objection to the court’s attention at a later point in the
proceedings as the Commonwealth argues. To adopt the
Commonwealth’s position would require us to add language to the
statute. This Court may not construe the plain language of a
statute “in a manner that amounts to holding that the General
Assembly meant to add a requirement to the statute that it did
not actually express.” Vaughn, Inc. v. Beck, 262 Va. 673, 679,
554 S.E.2d 88, 91 (2001). Nor may the Court “‘add language to
[a] statute [that] the General Assembly has not seen fit to
include.’” Virginia Elec. & Power Co. v. State Corp. Comm'n,
284 Va. 726, 741, 735 S.E.2d 684, 691 (2012)(quoting Jackson v.
Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906
(2005) and Holsapple v. Commonwealth, 266 Va. 593, 599, 587
S.E.2d 561, 564-65 (2003)).
We agree with the Court of Appeals’ observation that a
person who had no opportunity to object at the time a ruling is
made
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.
Amos, 61 Va. App. at 740, 740 S.E.2d at 48.
Contrary to the Commonwealth’s argument, Rule 5A:18 does
not require a different result. Rule 5A:18 and our case law
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requiring an issue to be presented to the court for
determination as a predicate for appellate review focuses on the
actions of the litigant. See, e.g., Scialdone v. Commonwealth,
279 Va. 422, 437-39, 689 S.E.2d 716, 724-25 (2010)(explaining
that the purpose of Rule 5:25 is to afford the trial court with
an opportunity to rule intelligently on issues presented by a
party and that under the facts presented, the defendants
satisfied such purpose by stating objections and grounds
therefor in a motion to stay); 2 Brown v. Commonwealth, 279 Va.
210, 217-18, 688 S.E.2d 185, 189-90 (2010)(concluding
Commonwealth made position known to trial court, thus providing
it with an opportunity to rule on that position); George v.
Commonwealth, 276 Va. 767, 773-74, 667 S.E.2d 779, 782
(2008)(holding defendant put court on sufficient notice of
position); Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164,
167 (1991)(finding plaintiffs preserved issues for appeal in
hearing and motion to rehear); Jackson v. Chesapeake & Ohio Ry.
Co., 179 Va. 642, 651, 20 S.E.2d 489, 492 (1942)(holding party
must state objection and grounds in such a manner that the trial
judge can understand the question to be decided). When failure
2
This Court has previously noted that Rule 5:25 is the
“counterpart” to Rule 5A:18, and that Code § 8.01-384(A), which
“controls” the interpretation of Rule 5:25, “likewise inform[s
the] interpretation of Rule 5A:18.” Brown v. Commonwealth, 279
Va. 210, 217, 688 S.E.2d 185, 189 (2010)(citing Helms v.
Manspile, 277 Va. 1, 7, 671 S.E.2d 127, 130 (2009)).
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to raise a contemporaneous objection or otherwise bring an
objection to the court's attention results from a party’s
actions, the contemporaneous objection exception of Code § 8.01-
384(A) does not apply, and the preservation issue will be
decided under the provisions of Rule 5A:18 or Rule 5:25, and
case law applying those rules. However, when a party is denied
the opportunity to raise a contemporaneous objection, the
contemporaneous objection exception of Code § 8.01-384(A)
applies.
Finally, Nusbaum, the case upon which the Commonwealth
relies, is not dispositive of this case. In Nusbaum, the
appellant repeatedly brought his objection to the attention of
the trial court but also repeatedly asked the trial court not to
rule on his objection and affirmatively stated that he was not
asking the court to change its rulings. 273 Va. at 404, 641
S.E.2d at 504. On appeal, the appellant argued that because he
objected to the trial court’s rulings and later made the trial
court aware of the substance of his objection to the contempt
order orally and as an objection to the final order, he “did all
that was required” to preserve the issue for appeal under Code §
8.01-384(A). Id. at 402, 641 S.E.2d at 503. The Commonwealth
argued that the issue was not preserved because Rule 5:25
required the appellant to seek a ruling on his due process
objections. Id.
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We rejected the application of Code § 8.01-384(A) in the
manner suggested by the appellant in Nusbaum, noting that the
case did not involve a situation where the court denied the
appellant an opportunity to raise a contemporaneous objection as
envisioned by the contemporaneous objection exception of Code §
8.01-384(A). Id. at 406, 641 S.E.2d at 505. Consequently, the
litigant was not entitled to the benefit of the exception and we
rendered no opinion on its application. We applied Rule 5:25
and concluded that, under the circumstances of that case, the
due process issue was not preserved for appeal because the
appellant failed to secure a ruling on his objection. Id.
The unusual circumstances of this case demonstrate why an
exception of this nature is warranted. Here, Ms. Amos was not a
party. Rather, she was only a witness and consequently was not
represented by counsel. Following the trial judge’s ruling, she
was immediately taken to jail without any further consideration
by the court. Furthermore, Maxwell v. Commonwealth, 287 Va.
___, ___ S.E.2d ___, (2014)(this day decided) and this case are
the first cases that require us to consider the application of
this statutory exception. The paucity of cases that have
invoked the contemporaneous objection exception during the past
40 years demonstrates that litigants are rarely precluded from
making contemporaneous objections to orders or rulings of the
court. Nevertheless, the exception is appropriate when
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circumstances such as those in this case arise. Here the
parties do not dispute that the actions of the trial court
prevented Ms. Amos from presenting a contemporaneous objection.
Therefore, the contemporaneous objection exception of Code §
8.01-384(A) applies and no further steps were required to
preserve her issues for appellate review.
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
JUSTICE MCCLANAHAN, dissenting.
I disagree with the majority's interpretation and
application of Code § 8.01-384(A). The statute simply does not
dictate that a party having "no opportunity to object to a
ruling or order at the time it is made" is relieved of any
obligation to later state his objection if the trial court can
still take corrective action - whether in the context of summary
contempt or otherwise.
To be sure, under the express terms of Code § 8.01-384(A),
a party will not be "prejudice[d]" by his failure to make a
contemporaneous objection if he has no opportunity to do so.
Nevertheless, if that party later has an opportunity to make his
objection in time for the trial court to correct the purported
error, but fails to object, it is that failure which causes him
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"prejudice" on appeal, i.e., default, not the absence of a
contemporaneous objection. Id. And, manifestly, the statute
makes no provision to the contrary.
Accordingly, for these reasons, along with those stated in
the dissent to the Court of Appeals' en banc opinion addressing
the proper construction of Code § 8.01-384(A), Amos v.
Commonwealth, 61 Va. App. 730, 746-49, 740 S.E.2d 43, 51-53
(2013) (Felton, C.J., dissenting), I would reverse the Court of
Appeals and affirm the judgment of the trial court. Therefore,
I dissent.
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