Opinion
Record No. 0776-93-4
Decided: July 5, 1994
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY, James H. Chamblin, Judge
Affirmed.
Alexander N. Levay, Public Defender, for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Donald Eugene Van Meter (defendant), accompanied by counsel, appeared before the trial court on his motion to reconsider sentences previously imposed on several misdemeanor convictions. As a result of defendant's comments at the conclusion of the hearing, he was adjudged in contempt of court and immediately sentenced to ten days in jail. On appeal, defendant challenges the sufficiency of the evidence to support this conviction. However, because this issue was not presented to the trial court, we affirm the conviction.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to this memorandum opinion.
"Rule 5A:18 and its companion Rule 5:25 have been strictly enforced. Specifically, . . . a challenge to the sufficiency of the . . . evidence is waived if not raised with some specificity in the trial court." Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987) (citations omitted). An "issue . . . not presented to the trial court" will not be considered "for the first time on appeal." Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). A contrary rule would " 'deny the trial court the opportunity to consider and weigh, and, if necessary, reconsider before finally ruling.' " Mounce, 4 Va. App. at 435, 357 S.E.2d at 744 (emphasis added) (quoting Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978)).
Here, the record recites both defendant's remarks and the response of the trial judge, including the related finding that defendant spoke "in a manner which offended the dignity of the court" and was "in contempt of court." See Code Sec. 18.2-456. Several days thereafter, defendant, pro se, noted an appeal of this ruling. However, nothing in the record indicates that defendant challenged the sufficiency of the evidence or presented other argument before the trial court which disputed the ruling.
We recognize that the "ends of justice" may sometimes require this Court to consider an issue for the first time on appeal. Rule 5A:18; see also Mounce, 4 Va. App. at 436, 357 S.E.2d at 744. However, "to avail himself of the rule the defendant had to affirmatively show . . . that the error [was] clear, substantial and material," constituting a "miscarriage of justice," an "obvious injustice." Brown v. Commonwealth, 8 Va. App. 126, 132-33, 380 S.E.2d 8, 11 (1989).
Contrary to defendant's argument, we find no authority to except contempt from the application of Rule 5A:18 or to consider its "unique nature" in an ends of justice analysis. Moreover, the record does not disclose error in the trial court as a matter of law or other obvious miscarriage of justice sufficient to justify our review despite noncompliance with the rule. But see, e.g., Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 680-81 (1991); Brown, 8 Va. App. at 132-33, 380 S.E.2d at 11.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
Following an evidentiary hearing, the trial judge denied Van Meter's motion to reconsider a sentence imposed on him for assault and battery. The contempt order recites that the following events then occurred:
[Van Meter] then observed for the record that he wished to appeal the Court's decision and moved the Court to appoint counsel to represent him in his appeal. The Court told [Van Meter] that his present counsel could advise him if an appeal was allowed, this being the outcome of a plea agreement. At that time [Van Meter] said ore tenus "that he was sorry he wasted the Court's time" in a manner which offended the dignity of the Court. The Court stated for the record that [Van Meter] had been allowed this time before the Court and therefore had not "wasted" the Court's time. The Court therefore finds [Van Meter] in contempt of Court and sentences [Van Meter] to 10 days in the Loudoun County ADC, which sentence is to be served at the end of the sentence presently being served by [Van Meter].
Van Meter's trial counsel was present and failed to object to the trial judge's ruling that Van Meter's words were sufficient to permit a summary conviction for criminal contempt. Despite counsel's failure to object, the conviction is "so manifestly unjust that we must overlook the failure to make a contemporaneous objecti[on] and exercise our authority to consider this issue on appeal in order to attain the ends of justice." Brown v. Commonwealth, 8 Va. App. 126, 133-34, 380 S.E.2d 8, 11 (1989).
The trial judge's conclusion that Van Meter's remarks were said in a manner that was an affront to the dignity or sensibility of that trial judge does not justify a conviction for summary criminal contempt. In re Little, 404 U.S. 553, 555 (1972). See also Sayler v. Commonwealth, 209 Va. 662, 664-65, 166 S.E.2d 110, 111-12 (1969). " 'An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is . . . the characteristic upon which the power to punish for contempt must rest.' " In re McConnell, 370 U.S. 230, 234 (1962) (quoting Ex parte Hudgings, 249 U.S. 378, 383 (1919)).
"[F]or conduct to be an obstruction of the administration of justice, it must interfere with and disrupt the orderly process of a court." "Mere affront to the trial judge is not enough." "An obstruction of the administration of justice is a significant disruption of judicial proceedings." "[T]hat remarks are injudicious . . . an affront to the dignity or sensibility of the court . . . or even disrespectful or insulting . . . will not, without more, justify conviction for summary criminal contempt." Inappropriate and ill-mannered conduct that "did not obstruct or delay the hearing . . . falls short of that misbehavior which may be punished."
Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980) (citations omitted).
Simply put, trial judges "must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice." Brown v. United States, 356 U.S. 148, 153 (1958). No obstruction of any nature occurred in the trial court. By upholding this conviction for contempt of court, this Court sanctions a gross miscarriage of justice. I dissent.