Epps v. Commonwealth

ELDER, J.,

concurring, in part, and concurring in the result.

I concur in the decision to reverse and remand the civil and criminal contempt rulings. I also concur with the reasoning for doing so as explained in Judge Frank’s opinion, as well as all other reasoning contained in that opinion, with the exception of his footnotes 3 and 5. Unlike Judge Frank in his footnote 5, I believe we must consider whether Sheriff Epps’s offering testimony that paralleled Judge Baskervill’s constituted a waiver of his prior objection to the admission of that testimony, and I would conclude that no waiver occurred.¹¹ Further, unlike Judge Frank in his footnote 3, and for the reasons set out in Part A of Judge Humphreys’s dissenting opinion, I agree that we should address on the merits the question whether Judge Baskervill’s testimony concerned a “matter which came before [her] in the course of [her] official duties.” However, unlike Judge Humphreys, I would conclude all of the relevant matter about which Judge Baskervill testified did, in fact, “[come] before [Judge Baskervill] in the course of [her] official duties” as contemplated by Code § 19.2-271. Because I agree with Judge Frank’s conclusion that Judge Baskervill was not a victim of crime, I join in Judge Frank’s conclusion that the trial court’s ruling allowing Judge Baskervill to testify was error.

Code § 19.2-271 provides as follows:

No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties.

... Notwithstanding any other provision of this section, any judge ... who is the victim of a crime[ ] shall not be incompetent solely because of his office to testify in any criminal or civil proceeding arising out of the crime.

As the majority opinion notes in its discussion of the crime victim exception, the predecessor to Code § 19.2-271 was much narrower, rendering a judge incompetent to testify only as “ ‘against the accused in a court of record as to statements made by the accused on his trial by such justice or on his preliminary examination before such justice.’” Baylor v. Commonwealth, 190 Va. 116, 121, 56 S.E.2d 77, 79 (1949) (quoting former Code § 4781 as amended by 1924 Va. Acts ch. 411). As the majority opinion notes further, Code § 19.2-271 is “much broader” and

is applicable to all cases except those that are specifically enumerated, and any party or witness may invoke its provisions. The evolution of this present statute indicates the legislature’s intent to make the prohibition all-inclusive, encompassing all situations where judges may be called to testify “as to any matter which came before him in the course of his official duties” except where they are victims of a crime.

Judge Humphreys acknowledges that the orders of April 16, 2002 and July 1, 2003 “certainly ‘came before’ [Judge Baskervill] in the course of her official duties” and, thus, that Code § 19.2-271 rendered her incompetent “to testify about the foundation and contents of those orders.” However, he concludes that because Judge Baskervill did not issue the show cause order for contempt for violating those orders and did not preside over the contempt proceedings, the matter of whether Sheriff Epps violated the orders did not “[come] before [her] in the course of her official duties.”

To conclude that the orders themselves and the circumstances surrounding their entry were “matter[s]” that “came before [Judge Baskervill] in the course of [her] official duties” while simultaneously concluding that Judge Baskervill’s encounters with Sheriff Epps in which he violated or admitted violating those orders were not such matters seems an artificial distinction that the language of the statute neither requires nor supports. Judge Baskervill was not a disinterested witness who merely happened to observe Sheriff Epps’s relevant behavior. Rather, she sought him out precisely because of her official involvement in the entry of the orders and her belief that Sheriff Epps had violated them. It was in the course of these “official duties” that Judge Baskervill observed the behavior about which she testified.

Of course, the General Assembly is free to fashion a statute that narrows the scope of the “official” matters about which a judge may not testify, such as by prohibiting a judge from testifying about testimony or argument made during the course of an actual judicial proceeding in the courtroom or in chambers while allowing testimony about events that occur in the course of a judge’s administrative duties not involving a party or witness to any particular litigation. See also Baylor, 190 Va. at 121, 56 S.E.2d at 79 (discussing scope of former Code § 4781, more narrowly drawn predecessor of present Code § 19.2-271). However, unless and until it does so, I believe the only reasonable conclusion is that Code § 19.2-271 applies to any “matter” that “[comes] before” a judge acting in his or her “official” capacity, regardless of whether that matter occurs in the courtroom, chambers, the sheriffs office, or any other location and regardless of whether the matter results in subsequent judicial proceedings over which that judge presides or entry of an order by that judge.

Judge Humphreys’s arguments concerning the holdings in Baugh v. Commonwealth, 14 Va.App. 368, 417 S.E.2d 891 (1992), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), do not support a different result. To the extent Crawford may be interpreted to call into question the admissibility of a certificate from a district court judge in a circuit court appeal of a contempt proceeding, see Code § 18.2-459, under the Confrontation Clause, this is a problem we need not confront in this case because no certificate was used and the majority agrees that a certificate could not properly have been used on these facts. Further, because Crawford effected a change in Confrontation Clause precedent and was decided after the General Assembly’s enactment and amendment of Code §§ 18.2-459 and 19.2-271,1 do not believe its holding is relevant to an interpretation of legislative intent. The Confrontation Clause problem, if one exists in the context of these statutes, must await legislative resolution.

For these reasons, I concur in the reasoning in Part A of Judge Humphreys’s opinion, and I concur in the reasoning of Judge Frank’s opinion with the exception of footnotes 3 and 5. Thus, I also concur in the decision to reverse and remand the civil and criminal contempt rulings.

11 . "An objection to previously introduced testimony is not waived by 'the mere cross-examination of a witness or the introduction of rebuttal evidence, either or both.’ ” McGill v. Commonwealth, 10 Va.App. 237, 244, 391 S.E.2d 597, 601 (1990) (quoting Snead v. Commonwealth, 138 Va. 787, 801, 121 S.E. 82, 86 (1924)). No waiver occurs where the accused "only attempt[s] to rebut the Commonwealth’s evidence by describing his version of [what] occurred.’’ Id. Here, appellant's objection pertained merely to the method by which the Commonwealth offered the evidence—via the testimony of a sitting circuit court judge— not to the relevance or content of the testimony. Thus, no waiver occurred.

The Commonwealth did not raise a waiver argument at trial or on appeal, but it need not have done so in order for us to consider such an argument on appeal. At trial, when the trial court overruled appellant’s objection to the admission of Judge Baskervill’s testimony, the Commonwealth presented its case. When appellant chose to testify, the Commonwealth was under no duty to inform anyone that his taking the stand might amount to a waiver of his objection to Judge Baskervill’s testimony. Further, when a legal issue is properly before us on appeal, as the admissibility of Judge Baskervill’s testimony is, we apply the applicable law to resolve the issue, regardless of whether that law was fully presented to the trial court below or to us on appeal. Cf. Lash v. County of Henrico, 14 Va.App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc) (holding that, as long as litigant preserves issue in trial court, Rule 5A:18 does not prevent appellate court "from relying on ... authority that was not presented to the trial court or referred to in [the parties’] briefs” (emphasis added)).