Boone v. Commonwealth

1

KERRY LENNELL BOONE v. COMMONWEALTH OF VIRGINIA

No. 1277-23-1

Court of Appeals of Virginia

December 10, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John R. Doyle, III Judge

(Daymen Robinson, on brief), for appellant.

(Jason S. Miyares, Attorney General; Andrew T. Hull, Assistant Attorney General, on brief), for appellee.

Present: Causey, Chaney and Callins, Judges.

MEMORANDUM OPINION^[*]

PER CURIAM

The circuit court convicted Kerry Lennell Boone of summary contempt under Code § 18.2-456(A)(1) in an appeal from the juvenile and domestic relations (JDR) district court under Code § 18.2-459. Over Boone's objection at trial, the circuit court considered a certificate prepared by the JDR judge specifying the factual basis for Boone's contempt conviction. In this appeal, Boone challenges the sufficiency of the evidence supporting his conviction. He also argues that the trial court violated his Sixth Amendment confrontation right by considering the JDR judge's certificate without allowing Boone to cross-examine that judge at trial.

After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND^[1]

On June 28, 2022, Boone became upset during his preliminary hearing in the JDR court for a felony offense and told the judge "[S]uck my dick." Deputies removed him from the courtroom. In response, the JDR judge held Boone in summary contempt under Code § 18.2-456(A)(1) and sentenced him to ten days in jail. The judge also continued the hearing, entering an order stating, "matter con[tinued] when [Boone] became disruptive; deputies had to remove [him] from [the] courtroom." Boone appealed his contempt conviction to the circuit court. Consistent with Code § 18.2-459, the JDR judge transmitted a certificate of Boone's contempt conviction to the circuit court. The certificate contained the JDR judge's handwritten notes explaining the basis for Boone's contempt conviction: "defendant became disruptive" and "told me to 'suck my dick.'"

Before the contempt trial, Boone moved to subpoena the JDR judge and cross-examine him at trial. Boone asserted that denying his request would violate his Sixth Amendment right to "compel witnesses in support of [his] defense." The trial court denied the motion.

At trial, the Commonwealth did not present any evidence. Over Boone's objection on Sixth Amendment confrontation grounds, the trial court considered the JDR judge's certificate specifying the facts underlying Boone's contempt conviction. Without objection, the trial court also considered the JDR court's continuance order documenting Boone's removal from the JDR courtroom by deputies due to his "disruptive" behavior.

Boone testified that his "conflict" with the JDR judge "started" about two weeks before the preliminary hearing, when the judge continued the hearing over his objection because the alleged victim refused to appear. Boone felt mistreated and asked the judge to recuse himself, but the judge denied the request. Boone testified that when the alleged victim later testified against him at the June 28, 2022 preliminary hearing, Boone asked his defense counsel to object to the prosecutor "lead[ing]" the witness. When his attorney ignored his request, Boone "stood up" and objected himself without requesting permission to do so. He told the judge that he wished to "proceed pro se" under "Faretta versus California"^[2] because he believed that his counsel was "not upholding [his] Sixth Amendment [rights]" by raising his desired objection. Boone acknowledged that when the judge denied his request to proceed pro se, he "argu[ed]" with the judge for about "two minutes" until deputies "rushed [Boone] out of the courtroom." Boone denied resisting the deputies or that they told him to "be quiet [or] sit down" before removing him. Boone maintained that he "never cursed" at the judge.

During closing argument, Boone argued that the evidence was insufficient to prove that he misbehaved in the JDR court's presence, interrupted or obstructed the administration of justice, or acted with the requisite intent. He emphasized that although the JDR judge's certificate stated that he was "disruptive" during the hearing, the certificate did not specify "the nature of the disruption" and it was possible that he intended only to "exercise[] his constitutional right" to represent himself when he objected. Boone also emphasized that the Commonwealth introduced no evidence contradicting his denials that he insulted the judge or resisted the deputies.

The trial court found that Boone's testimony "corroborate[d] the certificate and the [other] evidence from the [JDR] Court." The court found that Boone acknowledged that he "stood up without permission" and "started objecting" during the preliminary hearing even though "[h]e was represented by counsel." Additionally, the court found that Boone confirmed that "deputies had to remove him from the courtroom" after a two-minute argument with the JDR judge. Accordingly, the trial court found Boone in contempt under Code § 18.2-456(A)(1) and sentenced him to ten days in jail.

On appeal, Boone argues that the evidence was insufficient to support his conviction because it failed to prove that he misbehaved in the JDR court's presence and interrupted or obstructed the administration of justice and that he did so with the requisite intent. Boone also argues that the trial court violated his Sixth Amendment right to confront the government's witnesses by considering the JDR judge's certificate without allowing Boone to cross-examine that judge at trial.

ANALYSIS

I. Sufficiency

"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).

Code § 18.2-456(A)(1) authorizes courts and judges to issue attachments for contempt and "punish them summarily" for "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice." Boone argues that to sustain a conviction under that statute, the evidence must establish four elements: "(1) misbehavior, (2) in the presence of the court, (3) done with intent to obstruct or interrupt the administration of justice, which (4) obstructs or interrupts the administration of justice." He contends that the evidence was insufficient because it failed to demonstrate that he misbehaved in the JDR court's presence and that he obstructed or interrupted the administration of justice. He also argues that the evidence failed to prove that he specifically intended to obstruct or interrupt the administration of justice. We address the arguments in turn.

A. Misbehavior

As noted, "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice" is grounds for summary contempt. Code § 18.2-456(A)(1). Boone argues that his conviction under that subsection required proof that he both (1) committed misbehavior in the JDR court's presence and (2) that his misbehavior obstructed or interrupted the administration of justice. Asserting that "[m]isbehavior can only be punishable as contempt when it 'constitutes a clear and present danger or obstruction to the administration of justice[,]'" Boone argues that the evidence was insufficient because it did not demonstrate that he was "physically disruptive in court." He emphasizes that the JDR judge's certificate describing the incident was too vague to prove he obstructed or interrupted the administration of justice.

This Court has "never defined misbehavior in any definitive sense-nor could we." Parham v Commonwealth, 60 Va.App. 450, 459 (2012). This is because the law presumes "that reasonable people understand the line between good and bad behavior, particularly when exhibited in open court in the presence of a judge." Id. Moreover, the common law has long-recognized that contempt lies for any "act in disrespect of the court or its processes, or which obstructs the administration of justice." Id. at 456 (emphasis added) (quoting Robinson v. Commonwealth, 41 Va.App. 137, 142 (2003)). Consistent with the common law and the text of Code § 18.2-456(A)(1), we have held that "the necessity for showing an actual obstruction or interruption of justice does not apply to misbehavior 'in the presence of the court' but only to misbehavior 'so near thereto.'" Id. at 460 (quoting Code § 18.2-456(A)(1)). Accordingly, "[m]isbehavior the court directly sees or hears, . . . can be dealt with summarily," whereas misbehavior occurring outside the court's presence "must somehow obstruct or interrupt justice before it can be, if at all,...