Parham v. Commonwealth

60 Va.App. 450

729 S.E.2d 734

Priscilla Sherrie PARHAM

v.COMMONWEALTH of Virginia.

Record No. 1528–11–2.

Court of Appeals of Virginia, Richmond.

July 31, 2012.

Catherine French, Senior Appellate Coordinator (Virginia Indigent Defense Commission, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: KELSEY and BEALES, JJ., and ANNUNZIATA, Senior Judge.

KELSEY, Judge.

Priscilla Sherrie Parham appeals her contempt conviction on two grounds. First, she claims the evidence was insufficient as a matter of law. Second, she contends the circuit court violated her due process rights by considering a certificate filed by the juvenile and domestic relations district court pursuant to Code § 18.2–459. We disagree with both assertions and affirm.

I.

Parham appeared pro se at a hearing in a child custody case pending in the Richmond Juvenile and Domestic Relations District Court (the JDR court). During the hearing, Parham was found guilty of summary contempt. No court reporter was present to record the hearing. Pursuant to Code § 18.2–459, the JDR court filed a “certificate of the conviction and the particular circumstances of the offense.”

The certificate explained that “Parham appeared on March 23, 2011 in a contested custody case.” App. at 4. At the end of the hearing, the JDR judge “advised” the parties she was “granting sole legal custody” to the father. Id. As the court clerk prepared the order, a court deputy handed a child support summons to Parham. In response, “Parham balled the paper up.” Id. When the judge asked Parham “what she had just done,” Parham replied “she didn't need the papers.” Id. “At that point,” the judge stated, “I took a brief recess.” Id. After the recess, the judge repeated her ruling granting sole legal custody to the child's father. The court's custody orders were then handed to Parham. As before, “Parham proceeded to ball up these orders.” Id. The judge found her in summary contempt.

Parham appealed the summary contempt finding to the circuit court. Parham argued the circuit court could not consider the JDR court's certificate under Code § 18.2–459 because doing so violated her due process right to confront the witness against her—the JDR judge. She also contended her actions could not “be considered either insulting to the judge or misbehavior or resistance or disobeying an order of the Court.” Id. at 23. After the circuit court overruled her objections, Parham took the stand in her own defense.

Parham testified she balled up the “first piece of paper” (the summons) and conceded: “So I could take the contempt of court.” Id. at 26. She admitted she was “upset” at the court's ruling. Id. at 25. Balling up the summons, she agreed, was “contemptuous” on her part. Id. at 30. Immediately after balling up the summons, Parham recalled, the JDR judge breathed “aahhhh” into the microphone on the bench and announced the court would be in recess. Id. at 26.

Parham denied balling up the second set of papers (the custody orders), claiming the JDR judge made up that part of the story simply out of spite. Parham asserted that the only thing she did with this set of papers was to “fold it up” in open court. Id. at 30. On cross-examination, Parham acknowledged she had been previously convicted of perjury.

The circuit court affirmed the JDR court's finding of summary contempt. The circuit court construed the JDR court's recess as an effort to “calm down” the situation before issuing its written orders to Parham. Id. at 24. The circuit court also found that Parham's actions in open court were purposefully “insulting,” id., giving rise to the JDR court's contempt authority to maintain the “dignity” of the proceeding, id. at 31.

II.

On appeal, Parham challenges the sufficiency of the evidence as well as the admissibility of the JDR court's certificate. We find no merit in either contention.

A.

Virginia courts have long recognized that the “power to punish for contempt is inherent in, and as ancient as, courts themselves.” Carter v. Commonwealth, 2 Va.App. 392, 395, 345 S.E.2d 5, 7 (1986) (citations omitted). This “inherent” power is conferred upon Virginia courts “by the very act of their creation. It is a trust confided and a duty imposed upon us by the sovereign people which we cannot surrender or suffer to be impaired without being recreant to our duty.” Carter's Case, 96 Va. 791, 809, 32 S.E. 780, 783 (1899).¹ The underlying rationale rests not only on the need to enforce judicial orders but also on the basic need to “preserve the confidence and respect of the people without which the rights of the people cannot be maintained and enforced.” Carter, 2 Va.App. at 395, 345 S.E.2d at 7 (citations omitted).

Under Virginia law, “[i]t is elementary that any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice is contempt.” Potts v. Commonwealth, 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946). This includes any “act in disrespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.” Robinson v. Commonwealth, 41 Va.App. 137, 142–43, 583 S.E.2d 60, 63 (2003) (quoting Carter, 2 Va.App. at 396, 345 S.E.2d at 7). As Sir William Blackstone put it, contempt includes anything that demonstrates “a gross want of that regard and respect, which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.” Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880 (1904) (quoting 4 William Blackstone, Commentaries on the Laws of England *285–86 (1769)). When “vindicating the dignity and authority of the court,” a judge discharges a “solemn duty” and is not “engaged in a personal and private controversy.” Branch v. Branch, 144 Va. 244, 252, 132 S.E. 303, 306 (1926) (quoting Carter's Case, 96 Va. at 812, 32 S.E. at 784).²

Under the common law, acts of contempt “are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are consequential [indirect], which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority.” Blackstone, supra, at *283–84. Although the common law established the power to punish contempt, Carter's Case, 96 Va. at 806–07, 32 S.E. at 781–82, constitutional and statutory law set the procedural standards governing the imposition of a contempt conviction. In this respect, “the substantial difference between a direct and [indirect] contempt is one of procedure.” Burdett, 103 Va. at 845, 48 S.E. at 880. “Although the ‘power of the court to punish is the same,’ there are two distinct types of contempt, direct and indirect.” Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010) (citation omitted).

Direct contempt usually arises “ ‘in the face of the court’ as by rude and contumelious behavior; by obstinacy, perverseness, or prevarication; by breach of the peace, or any willful disturbance whatever.” Blackstone, supra, at *285; see also John B. Minor, Exposition of the Law of Crimes and Punishments § IV(ii)(v.), at 147 (1894) (direct contempt includes “rude and contumelious behavior towards the court or judge”). In such circumstances, “immediate punishment is essential to prevent ‘demoralization of the court's authority’ before the public.” In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 509, 92 L.Ed. 682 (1948) (citation omitted).

The governing “form of procedure” for summary contempt “dispenses with any further proof or examination and a formal hearing.” Higginbotham v. Commonwealth, 206 Va. 291, 294, 142 S.E.2d 746, 749 (1965). Since ancient times, if “the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any farther proof or examination.” Blackstone, supra, at *286.³ “Where misconduct occursin open court, the affront to the court's dignity is more widely observed, justifying summary vindication.” Pounders v. Watson, 521 U.S. 982, 988, 117 S.Ct. 2359, 2362, 138 L.Ed.2d 976 (1997) ( per curiam ).

In indirect contempt cases, which Blackstone called “matters that arise at a distance, and of which the court cannot have so perfect a knowledge,” Blackstone, supra, at *286, courts must provide the full panoply of constitutional rights: notice of the charge, right to counsel, presumption of innocence, as well as the opportunity to present evidence and to cross-examine adverse witnesses.See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798–99, 107 S.Ct. 2124, 2132–33, 95 L.Ed.2d 740 (1987); Scialdone, 279 Va. at 443–44, 689 S.E.2d at 728.⁴

In 1831, the Virginia General Assembly codified the common law categories of direct contempt. See 1830–31 Va. Acts ch. 11; United States v. Barnett, 376 U.S. 681, 722–24, 84 S.Ct. 984, 1006–07, 12 L.Ed.2d 23 (1964). This statute, “in sanctioning the power of the courts to punish, as contempts, the ‘ acts ’ therein enumerated, it is merely declaratory of what the law was before its passage.” Carter's Case, 96 Va. at 809, 32 S.E. at 783 (emphasis in original). This statute, as did the common law,

seems to embrace almost every conceivable form of that offence which can occur in the presence of, or in proximity to, the court, that is to say, under circumstances likely to arouse the passion or prejudice of the judge, and disturb that equanimity essential to calm and wise judicial action.

Id. at 814, 32 S.E. at 784.

Following its predecessors nearly word for word, Code § 18.2–456 lists the major common law categories of direct contempt. The first, “Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice,” Code § 18.2–456(1), has remained unchanged since...