Record No. 1433-05-2.
November 14, 2006.
Appeal from the Circuit Court of Chesterfield County, Herbert C. Gill, Jr., Judge.
John L. Squires (Nachman Squires LLP, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Benton, Clements and Beales.
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A judge of the general district court convicted Anselmo M. Rozario of summary contempt of court. Rozario contends the circuit court judge erred in ruling that (1) the general district court judge properly relied upon the results of an Alcosensor testing device and (2) the evidence was sufficient to prove an act of contempt. We hold the evidence was insufficient to prove contempt beyond a reasonable doubt.
Anselmo M. Rozario appealed to the circuit court from an order entered in the general district court convicting him of summary contempt and imposing a sentence of ten days in jail. See Code §§ 18.2-428 and 18.2-459 (authorizing district court judges to punish contempt and providing that such convictions can be appealed to circuit court). In the circuit court, the prosecutor offered as evidence a certificate of the conviction prepared by the district court judge pursuant to Code § 18.2-459. The certificate reads as follows:
Statement of Facts
On February 7, 2005[,] while holding traffic court, I noticed Mr. Anselmo Rozario when he appeared in front of me with bloodshot eyes and an odor of alcohol about him. I had my deputy test him and the reading was .10. I then gave him ten days in jail for summary contempt of court.
The prosecutor offered no other evidence in his case-in-chief.
In a motion to strike, Rozario's attorney argued the alcohol test result was inadmissible because it was obtained from an Alcosensor device, and he contended the evidence failed to establish Rozario obstructed the administration of justice. Specifically noting that "nothing in this certificate . . . says anything [about an Alcosensor]," the circuit court judge overruled the motion to strike the evidence. Rozario's attorney then offered as evidence a copy of the "Alcosensor Worksheet" the general district court judge relied upon in finding "the reading was.10." Rozario's attorney offered no other evidence, rested his case, and renewed his motion to strike.
The circuit court judge ruled that the result of the Alcosensor test was admissible and that the facts in the certificate were sufficient to prove contempt under Code § 18.2-456.
On brief, Rozario presents the following matters for our consideration in this appeal:
ASSIGNMENT OF ERROR
1. The Circuit Court of Chesterfield County improperly convicted Appellant of summary contempt of court because the evidence introduced by the Commonwealth at trial was legally insufficient to support a conviction pursuant to [Code] § 18.2-456.
1. Did Judge Laney, in General District Court, and Judge Gill, in Circuit Court, improperly rely on the results of a chemical test for blood alcohol content in finding that Rozario was intoxicated in Judge Laney's court on February 7, 2005?
2. In the absence of evidence of the results of the chemical test for blood alcohol content, was the information contained in Judge Laney's Statement of Facts sufficient to support the Circuit Court's finding of guilt?
Rozario's petition for appeal contained only the two questions presented and did not reference an "assignment of error." The Rules of Court provide that "[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals." Rule 5A:12(C). For these reasons, we limit our review to the issues fairly presented in the two questions presented, which were raised in the petition for appeal and accepted for review.See Selph v. Commonwealth, 48 Va. App. 426, 434, 632 S.E.2d 24, 28 (2006) (holding that our consideration of an "assignment of error" was barred because it was not presented in the petition).
We note that this Court has not always been consistent in differentiating between "questions presented" and "assignments of error." In numerous appeals, we have recognized and addressed issues presented by "assignments of error" when properly raised.See, e.g. Black v. Powers, 48 Va. App. 113, 126, 628 S.E.2d 546, 553 (2006); Singson v. Commonwealth, 46 Va. App. 724, 732, 621 S.E.2d 682, 685 (2005); Aldridge v. Commonwealth, 44 Va. App. 618, 637, 606 S.E.2d 539, 548 (2004); Nowlin v. Commonwealth, 40 Va. App. 327, 333 n. 1, 579 S.E.2d 367, 370 n. 1 (2003); Riner v. Commonwealth, 40 Va. App. 440, 452, 579 S.E.2d 671, 677 (2003); Cuffee-Smith v. Commonwealth, 39 Va. App. 476, 479, 574 S.E.2d 294, 295 (2002); Allen v. Commonwealth, 36 Va. App. 334, 337-38, 549 S.E.2d 652, 653 (2001); Jones v. Commonwealth, 32 Va. App. 30, 37, 526 S.E.2d 281, 284 (2000).
Before commencing the analysis of the substantive issues raised on appeal, we address the suggestion that Rozario invited the errors that he now complains of by introducing the Alcosensor Worksheet into evidence.
Rozario argued at trial, as he does now, that the district court judge improperly relied upon an Alcosensor test result to determine Rozario's blood alcohol content. When Rozario's attorney first made this argument in circuit court, the circuit court judge had no basis to know from the prosecutor's evidence the source of the district court judge's finding because the record was silent as to the basis for the judge's factual finding. As his sole evidence in the circuit court, the prosecutor relied on the general district court judge's certificate of conviction, which alleged "the particular circumstances of the offense" in accordance with Code § 18.2-459. The certificate tersely recited that the district court judge "had [a] deputy test [Rozario] and the reading was .10." Thus, the circuit court judge said, "[T]here is nothing in this certificate that says anything [about an Alcosensor test],. . . . it just says . . . he took a test and the reading was.10."
At trial, the prosecutor did not dispute that the district court judge had based the certificate's recitation of facts upon the result of an Alcosensor test. Although the district court's file contained the "Alcosensor IV Worksheet," the prosecutor simply opted not to present it as evidence. When Rozario's attorney proffered the Alcosensor Worksheet, he expressly argued it was the basis for the district court judge's finding and said the judge improperly used it at the summary contempt proceeding.
"While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal." King v. Commonwealth, 264 Va. 576, 581-582, 570 S.E.2d 863, 866 (2002) (citing Wright v. Norfolk W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729 (1993)). "In order for a procedural waiver to apply, the record must show that a litigant invited a trial court to commit error, either by failing to object or by agreeing to the ruling." State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208 n. 2, 491 S.E.2d 286, 287 n. 2 (1997). Waiver does not apply, when, as in this case, the circuit court judge was fully aware of the objection. Id. The error to which Rozario objected was the district court judge's reliance upon an Alcosensor testing device to establish Rozario's blood alcohol content. By offering the worksheet as an exhibit, Rozario's attorney proffered the underlying support for the finding and, thus, provided proof to support this claim of error. Merely proffering for the record a document that represents a judge's prior ruling does not constitute invited error when the party has made her objection clear. See WJA-TV v. Levin, 264 Va. 140, 159, 564 S.E.2d 383, 395 (2002) (holding that by "merely proffering or agreeing to an instruction consistent with the trial court's prior ruling," a party does not waive its objection to that ruling). Significantly, the Commonwealth has not argued that Rozario has waived the issue.
If Rozario's attorney had not placed the Alcosensor Worksheet into the record, this appeal would likely be subject to dismissal for failure to provide this Court with a complete record to decide the claim of error. See LeMond v. McElroy, 239 Va. 515, 521, 391 S.E.2d 309, 312 (1990) (holding that "the responsibility for presenting an adequate appellate record is upon the appellant who seeks reversal of the decision below");Ferguson v. Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in part, rev'd in part on other grounds, 240 Va. ix, 396 S.E.2d 675 (1990) (holding that "an appellant has the primary responsibility of ensuring that a complete record is furnished to an appellate court so that the errors assigned may be decided properly"). In other words, if Rozario's attorney had not proffered the Alcosensor Worksheet, he would have been precluded from asserting on this appeal that the ".10" recited in the certificate was the reported result of an Alcosensor device. By placing in the record the factual predicate that underlay the district court judge's conclusory finding that the "test . . . reading was .10," Rozario's attorney properly made a record to support the claim that the district court judge relied upon an improper testing device. For these reasons, Rozario is not procedurally barred from raising his questions presented on appeal.
Supposing that the judge erred in relying upon the results of the Alcosensor test, Rozario contends the evidence was insufficient to prove summary contempt. Fairly understood, he contends the evidence was insufficient in any event because he argues that "even if [the Alcosensor results] were properly admitted, . . . there is no evidence in the record . . . to sustain a conviction for . . . `misbehavior in the presence of the Court, or so near thereto as to obstruct or interrupt the administration of justice.'" (Quoting Code § 18.2-456(1)). The Commonwealth contends the evidence was sufficient to prove contempt because Rozario's court appearance while under the influence of alcohol caused the judge "to stop the proceeding for the administration of an Alcosensor test to confirm the presence of alcohol."
In the view we take of the case, we need not address Rozario's first issue on appeal. For purposes of reviewing the sufficiency of the evidence, we assume without deciding that the result of the Alcosensor test was admissible. We disagree with the dissent's contention that Rozario's second question presented relies on him prevailing under the first question. Rozario fairly raised the question of the sufficiency of the evidence independent of the question on the use of the Alcosensor test results. Petitions for appeal "ought to assign clearly and distinctly all the errors relied on for a reversal of the case, so that the opposite party may know what questions are to be raised in the appellate court." Orr v. Pennington, 93 Va. 268, 269-70, 24 S.E. 928, 928 (1896); see also Kirby v. Commonwealth, 264 Va. 440, 444-45, 570 S.E.2d 832, 834 (2002) (stating that the purpose of assignments of error is to direct opposing counsel and the court to the issues that the appellant claims as error). Supporting our understanding of the second question presented is the Commonwealth's brief, which addressed the sufficiency issue as an issue independent from that of the Alcosensor test results.
In pertinent part, Code § 18.2-456 provides that a judge may punish a person summarily for contempt involving "[m]isbehavior in the presence of the Court, or so near thereto as to obstruct or interrupt the administration of justice." Reversing a conviction for summary contempt, the Supreme Court of the United States held that before a judge may invoke "the drastic procedures of the summary contempt power . . .[,] there must be an actual obstruction of justice." In re McConnell, 370 U.S. 230, 234 (1962); see also Salyer v. Commonwealth, 209 Va. 662, 664, 166 S.E.2d 110, 111-12 (1969) (holding that the evidence must prove "a clear and present danger to the administration of justice"). Thus, inappropriate or ill-mannered conduct that does not "obstruct or interrupt the administration of justice" is not misbehavior that can be punished.
Furthermore, the record must contain evidence of the conduct that is the basis for the finding.
The record in such cases must contain more than the bare conclusion that the defendant's conduct was insolent, insulting, boisterous or the like. The actual facts upon which the court based its final conclusion must be set out. Such conclusions alone will not support a criminal contempt adjudication.
Carter v. Commonwealth, 2 Va. App. 392, 397, 345 S.E.2d 5, 8 (1986) (citations omitted). Because summary contempt "is a proceeding `to preserve the power and vindicate the dignity of the court,' it is criminal and punitive in character, and the guilt of the alleged contemner must be established beyond a reasonable doubt." Weston v. Commonwealth, 195 Va. 175, 184, 77 S.E.2d 405, 410 (1953) (quoting Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth, 193 Va. 773, 779, 71 S.E.2d 159, 163 (1952)).
Although the evidence was sufficient to prove that Rozario consumed alcohol at some time before appearing in the general district court, to establish an actual obstruction of justice, the evidence must prove more than an odor of alcohol emanating from a person's body and bloodshot eyes. This evidence proved nothing about Rozario's conduct, speech, or mannerisms in the courtroom and was insufficient to prove Rozario obstructed or interrupted justice. Likewise, evidence that his blood alcohol level was ".10" was not, when added to the judge's observations, proof of intoxication because it did not prove that Rozario had consumed a sufficient amount of alcohol to affect his speech, disposition, manner, movements, or behavior. See Code § 4.1-100 (defining intoxication, for purposes of the Alcoholic Beverage Control Act, as "a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, speech, muscular movement, general appearance or behavior"). Indeed, in the circuit court, the prosecutor "concede[d] the evidence in this case would be insufficient to convict [Rozario] of being drunk in public." See, e.g., United States v. Brown, 401 F.3d 588, 597 (4th Cir. 2005) (noting that the court's "research has uncovered, and the Government has cited, no published opinion of the Virginia appellate courts finding probable cause for public intoxication based solely on glassy, bloodshot eyes and the strong smell of alcohol").
The provision of Virginia's contempt statute which was employed in this case is similar to the Pennsylvania statute at issue inCommonwealth ex rel. Falwell v. Di Giacinto, 471 A.2d 533 (Pa.Super. 1984), where the court reversed a criminal contempt conviction under circumstances analogous to this case. When the defendant appeared in court after having consumed four beers and having a strong smell of alcohol, Id. at 534-35, the trial judge convicted him of summary contempt for "misbehavior . . . in the presence of the court, thereby obstructing the administration of justice." Id. at 536 (quoting 42 Pa. Cons. Stat. § 4131,renumbered to 42 Pa. Cons. Stat. § 4132). Reversing the conviction, the appeals court held as follows:
[M]erely being under some influence of liquor will not by itself constitute contempt. The drunkenness must be such that it obstructs the administration of justice, which means that it must interfere with or disrupt the orderly process of the court. . . . The record does not show that defendant's consumption of alcohol before coming to court in any way caused delay or disruption of the hearing, which would constitute a contumacious obstruction of the administration of justice.
Di Giacinto, 471 A.2d at 537 (citations omitted).
In a similar circumstance, a trial judge in Cameron v. State, 650 A.2d 1376, 1378-79 (Ct.Spec.App. Md. 1994), convicted a defendant of criminal contempt because he had "a strong odor of alcohol" and a .20 reading on a passive breath test. Reversing that ruling, the appeals court held that the evidence failed to prove the accused's "behavior . . . was . . . contemptuous on its face." Id. at 1381. The Court held that the evidence was insufficient to support the conviction because no evidence proved the accused was "disruptive of the proceeding" or "rebellious, . . . insubordinate, . . . willfully disobedient or openly disrespectful." Id. In other words, Cameron's conduct did not obstruct the court in the discharge of its duties.
We believe these decisions are more persuasive than the decision of the Arkansas Supreme Court which expressly declined to address the appellant's contention "that his behavior did not fall within any of the five categories listed in [Ark. Code Ann.] § 16-10-108(a)," the Arkansas summary contempt statute.Burradell v. State, 931 S.W.2d 100, 102 (Ark. 1996). Upholding the conviction for criminal contempt, the Supreme Court of Arkansas declined to apply its statute and held that Arkansas courts have the inherent power to punish any "behavior[, which], standing alone, [is] a mark of disrespect to the court and the legal process." Id. at 102. The court found cases from other states "distinguishable, although they involve similar fact situations," because Arkansas "empowered . . . judges with greater authority to preserve and protect the dignity of their courtrooms." Id. at 103. The court specifically distinguished its power from other jurisdictions where, for example, the "law required `misbehavior . . . obstructing the administration of justice' before a contempt citation could be issued," id. at 103 (quoting Di Giacinto, 471 A.2d at 536), or "a charge of contempt could only be support by a willful attempt to show disrespect." Burradell, 931 S.W.2d at 103 (citing Bethard v. District of Columbia, 650 A.2d 651, 653 (D.C. 1994)). Unlike Arkansas, our Supreme Court long ago held that our summary contempt statute is a declaration of Virginia's public policy and thus required consideration of whether the behavior at issue is punishable under the statute. Weston, 195 Va. at 182-84, 77 S.E.2d at 408-09.
In this case, the judge convicted Rozario of summary contempt under Code § 18.2-456 for "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice." The summary contempt statute undoubtedly authorizes judges to protect against actual obstructions in the courtroom. We reiterate, however, an observation we made in Carter:
We do not here lose sight of the fact that frequently a reading of the cold record does not accurately portray the actual conduct of the parties, their witnesses or their counsel. For that reason it is of utmost importance that as near as possible the record recites the facts or contains the evidence to support the conclusions of the trial court. See Harvey v. Commonwealth, 209 Va. 433, 436-37, 164 S.E.2d 636, 638 (1968) (showing the need for the record to prove guilt).
The record here discloses no physical impairment attributed to Rozario that delayed, interrupted, or obstructed the court proceeding. The district court judge's decision to cause a deputy sheriff to test Rozario for alcohol was not based on an interruption of the court proceeding or shown to be caused by anything other than his bloodshot eyes and body odor. The findings of fact provided no indication of the manner in which Rozario interrupted the proceedings or lacked capacity to rationally respond in the courtroom. Without some indicia of proof of the manner in which Rozario's conduct was detrimental to the proceeding or obstructed the administration of justice, the evidence was insufficient to prove the elements of contempt. SeeId. (holding that the record failed to contain facts sufficient to support the conviction for criminal contempt).
For these reasons, we hold the evidence was insufficient to support a conviction for summary contempt.
Reversed and dismissed.
I am concerned that the majority concludes that a defendant, who appears in court with bloodshot eyes, smelling of alcohol, and having a blood alcohol level (BAC) of .107, has not interrupted a court's proceedings and, therefore, is not guilty of contempt. I respectfully disagree.
Appellant on brief presents two Questions Presented. First, he asks this Court to consider "Did [the judges in the general district and circuit courts] improperly rely on the results of a chemical test for blood alcohol content in finding that Rozario was intoxicated in [general district court] on February 7, 2005?" Second, he asks, " In the absence of evidence of the results of the chemical test for blood alcohol content, was the information contained in [the court's] Statement of Facts sufficient to support the Circuit Court's finding of guilt?" (Emphasis added.) Appellant's second Question Presented thus seems to presume that, if the Alcosensor results were admissible, then the evidence was sufficient to support a contempt finding.
As this Court does not review decisions of the general district court, we cannot address that aspect of the Question Presented. See Code §§ 16.1-131.1, 16.1-132, 17.1-405, 17.1-406.
I believe the Alcosensor results were properly considered by the trial court. First, appellant effectively created the error of which he now complains. Appellant introduced the Alcosensor result sheet. He cannot ask for the admission of evidence and then complain when the trial court considers it. See Billips v. Commonwealth, 48 Va. App. 278, 295-96, 630 S.E.2d 340, 348-49 (2006) (discussing approbate and reprobate). Although the majority suggests a reason why appellant introduced this document into evidence, appellant did not present this explanation to the trial court nor did appellant place any limitation on the court's use of this evidence.
The majority also suggests that, without this certificate, the appeal would be dismissed for failure to provide a complete record. This suggestion assumes we are reviewing the general district court's decision, not the decision of the circuit court. If appellant had not presented the certificate to the trial court, then it would not be part of the record of the circuit court proceedings on appeal. Therefore, its exclusion would not seem to affect this appeal procedurally. In fact, appellant may have had a more persuasive substantive argument to the trial court and to this Court had the document never been presented.
Second, appellant did not object to the introduction of the certificate prepared by the general district court judge. That certificate includes the statement that the general district court "had [the] deputy test [appellant] and the reading was .10." Appellant argued later that the trial court should not consider the breath test because such tests are not admissible generally and, therefore, are not sufficient to prove guilt beyond a reasonable doubt. He never specifically asked the court to exclude the evidence of the Alcosensor test.See Rule 5A:18. As the trial court restated it, appellant's argument to that court was "whether or not the Alkosensor test is sufficient enough to establish drunkenness." Appellant argued this evidence should receive little weight, not that the results were inadmissible. As appellant introduced the test results himself and did not object to the introduction of the certificate, he cannot argue on appeal that the evidence was inappropriately before the court.
All parties implicitly agree that the test mentioned in the certificate from the general district court was an Alcosensor test for blood alcohol content.
Code § 18.2-268.9 limits admissibility of breath-test results in prosecutions under §§ 18.2-266, -266.1, -272, and similar statutes. Code § 18.2-456 is not similar to these statutes.
In his brief to the trial court after the guilt phase of the trial, appellant changed his argument. In this brief, appellant suggests that the breath-test results should have been excluded. Such an objection clearly was not made at the time the evidence was introduced, as required by Rule 5A:18.
Third, even if appellant had preserved the argument, as the majority concludes, I still find the trial court properly considered the Alcosensor test. Appellant basically argues that Code § 18.2-268.9 limits admissibility of breath-test results. However, the clear language of the statute limits the use of these results in prosecutions under §§ 18.2-266, -266.1, -272, and similar statutes. Appellant was found in contempt of court under Code § 18.2-456, which is not similar to the statutes listed in Code § 18.1-268.9. Those listed statutes refer to traffic offenses. As this case does not involve a traffic offense, the Alcosensor test was admissible. See, e.g., Hale v. Commonwealth, 23 Va. App. 587, 590-91, 478 S.E.2d 710, 711-12 (1996). The trial court did not abuse its discretion in admitting the evidence and determining the weight given to the test results. See James v. Commonwealth, 18 Va. App. 746, 754, 446 S.E.2d 900, 905 (1994).
Based on this conclusion that the Alcosensor test was properly considered, I would find appellant's sufficiency argument fails. As he frames the issues for consideration here, his sufficiency argument is premised upon a finding that the trial court should not have considered the Alcosensor test. The majority contends appellant raised this question independent of the sufficiency issue. However, as even the cases cited by the majority explain, the assignments of error and the questions presented determine the arguments on appeal to this Court, not the substance of the argument section. See supra majority opinion, fn. 2; see also Luginbyhl v. Commonwealth, 48 Va. App. 58, 63 n. 3, 628 S.E.2d 74, 77 n. 3 (2006) ( en banc) ("[E]ven if the appellant had preserved this issue below, it was not a question presented in the petition for appeal as required by Rule 5A:12(c), nor was the issue briefed as required by Rule 5A:20."). The two issues granted on appeal here are intertwined, by the clear wording of appellant's filings. I do not believe we should look to the full argument to determine the "actual" issues before this Court. Instead, we are bound by Rule 5A:12(c): "Only questions presented in the petition for appeal will be noticed by the Court of Appeals."
Whether or not the Commonwealth realized that appellant deviated from the Questions Presented is irrelevant to this analysis. As Rule 5A:12(c) clearly states, this Court will not consider a question that is not presented. We do not depend upon the opposing party to argue this point, but should address this problem sua sponte when it is discovered. See, e.g., Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991) ( en banc) (in which the dissent notes that the majority reached the Rule 5A:18 issue sua sponte).
If appellant's issue were framed as considered by the majority, I believe we should affirm the finding that appellant was in contempt of court when he decided to appear intoxicated before the general district court on his traffic charges. To find otherwise undermines respect for the solemnity of the Virginia courts.
The Virginia Supreme Court has explained that contempt occurs when events:
probably will "affect the course of justice in future litigation and impair, if not destroy, the judicial efficiency of the court or judge subjected to attack." [Weston v. Commonwealth,] 195 Va. [175,] 184, 77 S.E.2d [405,] 409 [(1953)]. And the rationale of the rule is that "[the] dignity of the courts and the duty of the citizens to respect them are necessary adjuncts to the administration of justice." 195 Va. at 183, 77 S.E.2d at 409.Salyer v. Commonwealth, 209 Va. 662, 664-65, 166 S.E.2d 110, 112 (1969); see United States v. Barnett, 376 U.S. 681, 700 (1964) (noting that contempt of court is an "insult offered to the authority of the people themselves"). This Court has explained:
"`Contempt is defined as an act in disrespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.'" Carter v. Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7 (1986) (quoting 4A Michie's Jurisprudence Contempt § 2 (Repl. Vol. 1983)); see Code § 18.2-456(1). It includes any act "which is calculated to embarrass, hinder, or obstruct the court" in the discharge of its responsibilities. Carter, 2 Va. App. at 396, 345 S.E.2d at 7-8; Potts v. Commonwealth, 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946).
A district court judge has the power to punish summarily for contempt. Code § 18.2-458. It is a power "essential and inherent . . . [to] the very existence of our courts," Levine v. United States, 362 U.S. 610, 615 (1960), indispensable to "the proper administration of the law . . . [and necessary] 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. . . .
Baugh v. Commonwealth, 14 Va. App. 368, 372, 417 S.E.2d 891, 894 (1992). Criminal contempt actions are designed to protect the power of the courts, to preserve their dignity, and to deter misbehavior. See Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-28 (1904); Local 333B v. Commonwealth, 193 Va. 773, 779-80, 71 S.E.2d 159, 163-64 (1952); Robinson v. Commonwealth, 41 Va. App. 137, 142, 583 S.E.2d 60, 63 (2003); Morrissey v. Commonwealth, 16 Va. App. 172, 176-78, 428 S.E.2d 503, 505-06 (1993).
The majority finds the Commonwealth did not prove that appellant's misbehavior interrupted the proceedings in the general district court. I disagree. Appellant drank enough alcohol to give him bloodshot eyes and the smell of alcohol, obvious enough to draw the attention of the presiding judge. Appellant was appearing on several traffic offenses; he was not someone simply sitting in the courtroom. The judge found it necessary to stop the proceedings and ask the bailiff to administer an Alcosensor test to appellant. The test found appellant had a BAC of .107, more than two points over the legal limit for driving in the Commonwealth. See Code § 18.2-266. Whether or not he could be convicted of public intoxication under the Virginia Code, I believe the trial court had sufficient evidence to find appellant in contempt of court.
Under the majority's interpretation, a person may appear intoxicated before the court, and a judge cannot take action to enforce the solemnity of the proceedings unless the person affirmatively and independently interrupts the proceedings. According to this interpretation of the contempt power, a person has no responsibility for his lack of respect for the court and others when his appearance effectively delays the docket. The majority cites In re McConnell, 370 U.S. 230 (1962), as supporting its position, but there the United States Supreme Court suggested that misbehavior prompting a court to ask for assistance from a bailiff can constitute actual obstruction.
The majority quotes Code § 4.1-100, "defining intoxication . . . as `a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, speech, muscular movement, general appearance or behavior.'" Appellant's general appearance, given his odor of alcohol and bloodshot eyes, would certainly seem to fall within this definition.
It is true that petitioner stated that counsel had a right to ask questions that the judge did not want asked and that "we propose to do so unless some bailiff stops us." The fact remains, however, that the bailiff never had to interrupt the trial by arresting petitioner, for the simple reason that after this statement petitioner never did ask any more questions along the line which the judge had forbidden. And we cannot agree that a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him can amount to an obstruction of justice that can be punished under the limited powers of summary contempt which Congress has granted to the federal courts. The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.
Id. at 236. In re McConnell does not stand for the proposition that only those acts independently halting proceedings are contemptuous.
The majority also relies on Carter v. Commonwealth, 2 Va. App. 392, 345 S.E.2d 5 (1986). However, the facts of Carter differ significantly from this case. Carter simply requested a jury trial on the day that his case was set for a bench trial, and the trial court then, wrongly, found him in contempt for failing to make the request earlier. Id. at 394, 345 S.E.2d at 6. This Court discussed, in the context of finding someone in contempt for invoking a constitutional right, that the record must contain some evidence of a willful intent to obstruct or interrupt the administration of justice. Id. at 397-99, 345 S.E.2d at 8-9. As the request or waiver of a jury is part of the normal proceedings of a trial, Carter's analysis is certainly reasonable. However, appearing intoxicated before a court should not be part of the normal proceedings of a court nor should Alcosensor testing of defendants be considered normal. As appellant chose to drink alcohol before coming to court and to appear with bloodshot eyes, smelling of alcohol, and with a BAC of .107, I would find his misbehavior was intentional and, indeed, willful.
I also respectfully disagree with the majority's interpretation of the contempt statute. A person can be punished for "[m]isbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice." Code § 18.2-456(1) (emphasis added). If the activity is misbehavior, then the action need not actually obstruct or interrupt the administration of justice. This section of the statute is written in the disjunctive, using the word "or." Therefore, a person can be punished for either misbehavior or obstructing or interrupting justice; both need not be proven. Appearing in court intoxicated, especially when appearing as a defendant, is certainly misbehavior. At the very least, a reasonable fact finder could have found that this evidence was sufficient to prove misbehavior or behavior that interrupted the administration of justice. See Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc).
The majority cites cases from Pennsylvania and Maryland as supporting its interpretation of Code § 18.2-456. However, neither of these cases is particularly analogous to the situation before this Court.
In Commonwealth ex rel. Falwell v. Di Giacinto, 471 A.2d 533, 536-37 (Pa.Super.Ct. 1984), the Pennsylvania appellate court vacated a contempt conviction that was based on appellant's consumption of four beers prior to a civil noncompliance hearing. The only apparent disruption in the proceedings was some slight incoherence, "which is a common phenomenon in hearing transcripts, whether the speaker is inebriated or not," according to that court. Id. at 537. As the quotation included in the majority opinion indicates, if the consumption of alcohol " in any way caused delay or disruption of the hearing," the Pennsylvania courts would have affirmed the contempt finding.Id. at 537 (emphasis added). Here, appellant's behavior and appearance did cause delay in the proceedings. The general district court stopped the proceedings to have the bailiff test appellant. With this additional factor, if this case were before the Pennsylvania court, I believe that court would affirm the contempt finding, even though their statute is more restrictive than our Code § 18.2-456.
The Pennsylvania statute limits contempt to:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.
42 Pa. C.S. § 4132 (numbered § 4131 at the time Falwell was found in contempt).
The majority also cites Cameron v. State, 650 A.2d 1376, 1380-82 (Md.Ct.Spec.App. 1994). In that case:
[A]ppellant returned to court as scheduled and, pursuant to a plea agreement, entered a plea of guilty to driving under the influence. Before accepting the plea, the court questioned Cameron on his present sobriety, obtaining assurances from Cameron that he was not currently under the influence of alcohol. The court asked other questions of Cameron to determine whether he entered the plea voluntarily, understood all of his rights, and comprehended the consequences of his plea. Then, the court accepted the plea as "freely and intelligently made."
* * * * * * *
Pursuant to the court's order, Cameron proceeded to the Health Department following the plea and sentencing proceeding. When Cameron appeared at the Department at approximately 10:20 a.m., the Supervisor for the Drinking Driver Monitor Program, Randall Blough, "detected a strong odor of alcohol." Mr. Blough proceeded to administer a passive breath test and a portable breathalyzer test, the passive breath test yielding "a point two oh [sic]" reading. The parties then returned to court.
Id.. at 1378-79. The Maryland court also noted that the trial court apparently found "Cameron was not too intoxicated to waive his testimonial rights," and added, "It is crucial to note that it is unclear whether Cameron was even intoxicated at the plea proceeding." Id.. at 1381. Based on Maryland law, which requires a finding that the behavior was "contemptuous on its face or it must be shown that the person possessed contumacious intent," the appellant court overturned the contempt finding.Id.. at 1380, 1382. This same decision upheld Cameron's guilty plea. Id. at 1384. The facts before the Maryland court differ greatly from the facts before this Court. Here, we know that appellant had a BAC of.107 while he was in court. His appearance and his aroma caused the general district court to stop its proceedings and ask the bailiff to test appellant. This behavior is contemptuous on its face under Virginia law.
I suggest that Virginia look to the Arkansas Supreme Court inBurradell v. State, 931 S.W.2d 100 (Ark. 1996), for guidance. In that case, "other than smelling of alcohol and registering a .13 on the breath test [customarily given before DWI defendants appear in court], Burradell displayed no outward signs of intoxication." Id. at 101. The Arkansas Supreme Court explained why it upheld the contempt finding:
An act is contemptuous if it interferes with the order of the court's business or proceedings or reflects upon the court's integrity. The power of contempt is available to uphold public confidence in the majesty of the law and to preserve the power and dignity of the court. These interests are offended by a defendant who shows up for a plea hearing under the influence of alcohol. Public confidence in the majesty of the law would be sorely tried were a court to turn a blind eye to a defendant who appeared in court smelling of alcohol and intoxicated to the extent we have in this case. Further, the validity of the proceedings themselves could be called into question by the participation of an intoxicated defendant. Finally, we have recognized that one of the values of a court's exercise of its criminal contempt power is its deterrent effect on others. A contempt citation such as the one issued against Burradell lets others know that such behavior will not be tolerated by the court.
Id. at 102 (citations omitted).
The majority distinguishes Burradell by pointing to the differences in states' contempt statutes. While the Arkansas court did not review the particular language of their contempt statute, they did define contempt as an act that "interferes with the order of the court's business or proceedings or reflects upon the court's integrity." Id.. at 102. This definition is consistent with Virginia's statutory definition of contempt as including "misbehavior in the presence of the court, or as near thereto as to obstruct or interrupt the administration of justice," Code § 18.2-456, and with our courts' previous interpretations of contempt, see Salyer, 209 Va. at 664-65, 166 S.E.2d at 112; Baugh, 14 Va. App. at 372, 417 S.E.2d at 894. The Arkansas court, in reviewing Di Giacinto, also notes that the Pennsylvania statute requires "`misbehavior . . . obstructing the administration of justice.'" Burradell, 931 S.W.2d at 103 (ellipses in original). In contrast, the Virginia Code requires only "misbehavior," a less stringent requirement.See supra.
The majority also cites Weston v. Commonwealth, 195 Va. 175, 182-87, 77 S.E.2d 405, 408-11 (1953), which affirmed a contempt citation for utterances regarding a judge's performance in an ended case, noting that, because Virginia had a statute defining contempt, the free speech concerns expressed in earlier cases were not as important to the Court's analysis. This case does eliminate the common law principles of contempt or make them irrelevant to interpreting the contempt statute.
Here, we have an element that did not exist in Burradell — the court found it necessary to interrupt the proceedings and determine appellant's level of intoxication before moving forward with his traffic cases. Although appellant himself did not verbally or physically interrupt the proceedings, he created a situation that impeded the normal course of the docket. The majority's interpretation of the contempt statute would permit people to appear in court after drinking enough alcohol to affect their appearance and not face any consequence for doing so. This interpretation undermines respect for the courts and impedes the administration of justice. It assumes that the administration of justice involves only the immediate, regular course of proceedings in the courtroom, to the exclusion of behavior that implicitly or explicitly shows disrespect and discourtesy to the court and to the citizens in that community.
The majority misinterprets Virginia's summary contempt statute. By allowing the misbehavior exhibited here to continue, this misinterpretation diminishes and impedes both the administration of justice and the respect of the public for the functioning of the courts. Therefore, I respectfully dissent.