Bell v. Commonwealth

904 S.E.2d 643

81 Va.App. 616

Raymond Charles BELL

v.COMMONWEALTH of Virginia

Record No. 1045-23-3

Court of Appeals of Virginia, Lexington.

August 13, 2024

FROM THE CIRCUIT COURT OF ROANOKE COUNTY, Charles N. Dorsey, Judge

Paul G. Beers (Glenn, Feldman, Darby & Goodlatte, on brief), Roanoke, for appellant.

Ryan Beehler, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges O’Brien and Causey

OPINION BY JUDGE DORIS HENDERSON CAUSEY

₆₂₀On March 20, 2023, a Roanoke County jury convicted Raymond Charles Bell of brandishing a firearm. On March 31, 2023, the trial court summarily found Bell in contempt under Code § 18.2-456(A)(1) and (3) for sending a letter to members of the venire panel following the firearm conviction. A jury different from the one that convicted him of the brandishing offense subsequently fixed Bell’s sentence for contempt at six ₆₂₁months’ incarceration. By final order of June 16, 2023, the trial court imposed the jury’s recommended sentence.¹

On appeal, Bell contends that the trial court erred by summarily holding him in contempt because his alleged conduct did not satisfy the requirements of Code § 18.2-456(A)(1) or (3). We agree, and for the following reasons, we reverse the trial court’s summary contempt order and remand for further proceedings consistent with this opinion.

BACKGROUND

In 2020, the Commonwealth charged Bell with misdemeanor brandishing. On March 20, 2023, a jury convicted him of that offense, and the trial court discharged the jury the same day. At a hearing on March 31, 2023, the trial court informed Bell that it had found him in summary contempt under Code § 18.2-456(A)(1) and (3). The court directed the clerk to open a "separate file" for summary contempt, and acting sua sponte, it entered five sealed exhibits in that file.² The exhibits included a two-page typed letter with the heading "Juror Information" and the typed name "Raymond Bell" at the bottom of the second page. The opening paragraph stated: "You have been sent this summary as you were possibly among the 57 citizens asked to assemble at the Roanoke County Courthouse for jury duty on March 20, 2023. Out of the group of those assembled, 13 were selected and seated for the case this [letter] … make[s] reference to."

The letter then thanked the jurors for their service and described the verdict in Bell’s case as "accurate based on what was presented to" them at trial. The letter then stated: "This ₆₂₂which follows is what you were not allowed to be told or presented with." It asserted that three eyewitnesses refused to testify and that police reports that would have impeached the testifying witnesses were excluded from evidence. Further, multiple audio or video files related to the offense "were lost before [the] defense could have known to save and/or request the files."

The letter further described the testimony of several trial witnesses and additional pieces of evidence that the trial court purportedly excluded at trial. The letter then stated: "Does all of this suggest you were wrong in your verdict? NO." It closed by asserting: "The fact is that jurors should be entitled to ALL information. Under Virginia law, the prosecutor and the judge determine what a juror sees and hears. Defense [counsel] has no input to those decisions except to object or agree. Thank you again for your service."

The exhibits also contained several email chains between the trial court clerk, the Commonwealth’s Attorney’s office, and the Roanoke County Sheriff's Office, which the Clerk forwarded to the trial court. Bell was not copied on or privy to this email evidence until the summary contempt hearing. These emails suggest that multiple jury panel members contacted the court, the Commonwealth’s Attorney, or the sheriff's office upon receiving the letter to register their concerns. The exhibits also included an unsigned, undated "Timeline" documenting the contacts from the jury panel members and the communications between officials in the trial court, the Commonwealth’s Attorney’s office, and the sheriff's office. According to the timeline, those contacts occurred between March 28 and 30, 2023, after the jury found Bell guilty of brandishing and the jury was discharged but before he was sentenced for the brandishing offense.

The trial court then told Bell that "Virginia diligently protects the [inviolability] and secrecy of jurors’ deliberations" and that "[i]implicit in the" constitutional right to trial by an impartial jury is "a defendant’s right to have the jury decide the case based only upon what occurs during the trial and on ₆₂₃the judge’s instructions as given in open court." The trial court concluded that the communications "reflected in the exhibits … were inappropriate and occurred before the underlying criminal conviction of brandishing [was] concluded and before the jury panel term of service had concluded." The court announced that it would empanel a jury to decide Bell’s punishment for summary contempt.

Defense counsel stated that "[g]iven the circumstances," counsel had "some questions about some of [the] documents" in the exhibits, including whether the letter was dated. The trial court responded that the documents had been "filed as exhibits" and, because the court was "not testifying," it was "not subject to cross-examination." When defense counsel asked if Bell would be "arraign[ed] on the contempt charge," the trial court stated that the hearing was "not a plenary proceeding" and the court had found Bell in contempt.

At the contempt sentencing hearing,³ the parties and the trial court agreed that the maximum sentence the jury could fix was six months’ incarceration. The Commonwealth argued to the sentencing jury that the assertions in the letter were "patently false" and "caused concern" for the recipients. It asserted that Bell sent the letter to "obstruct, … impede, [and] cast doubt onto the [justice] system that we use every day." It asked the jury to "send a message to" Bell about "how inappropriate this behavior was."

Defense counsel asked the jury to limit Bell’s contempt punishment to a fine. Counsel acknowledged that while "[i]t was probably not a good idea to send this letter," the letter was not "mean," "vulgar," or "threatening." Counsel summarized the contents of the letter and urged the jury to use its common sense in fashioning an appropriate sanction.

The parties stipulated that "the 57 members of the jury panel wh[o] were the intended recipients of the letter sent by ₆₂₄the defendant[ ] were still under their active term of jury duty when they received the letters." The panel’s term "was set to expire March 31, 2023," and "although no further jury trials were heard between" March 20 and March 31, 2023, "the jury panel was subject to recall as needed until March 31, 2023."

The Commonwealth then called three members of that jury panel to testify: one potential juror who was not selected and two jurors who served on the jury for Bell’s brandishing charge. It also played a video recording of a portion of one witness’s testimony in the brandishing trial. In closing argument on sentencing, the Commonwealth described Bell’s actions in sending the letters as "malicious," "egregious," and "uncalled for." It asked the jury to impose "active incarceration." The defense again asked the jury to impose a fine, noting that Bell received a seven-month active sentence in the brandishing case.

The jury fixed Bell’s contempt sentence at six months’ incarceration. Before the trial court sentenced Bell, defense counsel explained that Bell "objected] [to] the fact that this is a summary contempt as opposed to impaneling a jury on guilt or innocence on the underlying issue." The trial court then imposed the jury’s sentence.

Bell now appeals, arguing that the trial court lacked authority to hold him in summary contempt, because neither Code § 18.2-456(A)(1) nor (A)(3) applies to his alleged conduct. Bell acknowledges that he did not preserve these arguments in the trial court but asks this Court to address them under the ends of justice exception to Rule 5A:18.

ANALYSIS

[1–3] "All courts in this Commonwealth have the power to impose penalties for contemptuous conduct" to "preserve the power of the court and to vindicate the court’s dignity." Gilman v. Commonwealth, 275 Va. 222, 227, 657 S.E.2d 474 (2008). "The exercise of this power, however, ‘is a delicate one[,] and care is needed to avoid arbitrary or oppressive conclusions.’ " Scialdone v. Commonwealth, 279 Va. 422, 442, ₆₂₅689 S.E.2d 716 (2010) (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767 (1925)). The United States Supreme Court has characterized the contempt power as "uniquely … ‘liable to abuse.’ " Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994) (quoting Bloom v. Illinois, 391 U.S. 194, 202, 88 S.Ct. 1477, 1482, 20 L.Ed.2d 522 (1968)). Thus, a court’s power to punish for contempt is limited to "the least possible power adequate to the end proposed." Scialdone, 279 Va. at 442, 689 S.E.2d 716 (quoting Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965)).

[4–6] Contempt can be either civil or criminal. Bagwell, 512 U.S. at 826-27, 114 S.Ct. at 2556–57. "[C]ivil contempt sanctions" are "penalties designed to compel future compliance with a court order," and thus are "coercive and avoidable through obedience." Id. at 827, 114 S.Ct. at 2557. By contrast, "[c]riminal contempt is a crime in the ordinary sense," and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Id. at 826, 114 S.Ct. at 2556 (first quoting Bloom, 391 U.S. at 201, 88 S.Ct. at 1481; and then quoting Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429–30, 99 L.Ed.2d 721 (1988)). Here, the...