Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
KENNETH L. SINGLETON
OPINION BY
v. Record No. 082270 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 2009
COMMONWEALTH OF VIRGINIA
GORDON ANDREW ZEDD
v. Record No. 090012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In these appeals, we consider whether the evidence was
sufficient to convict two attorneys for contempt of court in
violation of Code § 18.2-456. In Singleton v. Commonwealth,
Kenneth L. Singleton was found guilty of criminal contempt for
failing to appear for a scheduled trial of his client and for
excusing his client from appearing at the trial without the
court’s approval. In Zedd v. Commonwealth, Gordon Andrew Zedd
was found guilty of criminal contempt for excusing his client
from appearing for a scheduled trial without the court’s
approval.
BACKGROUND
I. Singleton v. Commonwealth
Darrell P. Simpson retained attorney Kenneth L. Singleton
to represent him in an appeal of a misdemeanor conviction for
driving under the influence. The matter was originally set
for trial on August 30, 2007 in the Circuit Court of the City
of Norfolk.
Prior to trial, Singleton contacted the prosecutor
assigned to the case regarding a continuance. The prosecutor
and Singleton agreed to a continuance of the case to September
27, 2007. The prosecutor then prepared a continuance order
and “called off” his witness in the case. On August 28, 2007,
the prosecutor and Singleton met and signed the continuance
order. Thereafter at Singleton’s direction, his office
informed Simpson that he did not need to appear in court for
his original trial date.
On August 30, 2007, the prosecutor appeared in the
circuit court and requested entry of the continuance order.
The court rejected the order in light of the fact that neither
Singleton nor his client was present.
Singleton, Simpson, and the prosecutor subsequently
appeared before the circuit court on September 12, 2007 for a
bond hearing. 1 At that time, the court asked Singleton: “What
authority do you have to excuse a person from court?”
Singleton answered by indicating that the parties had agreed
1
While the record is not clear, apparently Simpson was
arrested for failing to appear on August 30, 2007, and was
subsequently released on bond by a magistrate prior to the
bond hearing set for September 12, 2007.
2
on a date to continue the case. The court asked again: “What
authority do you have to excuse someone from court without a
judge entering an order?” Singleton answered: “None, Your
Honor.” The court then found Singleton in contempt of court,
fining him $250.
In his defense, Singleton explained: “I know I have no
authority as a judge to excuse anyone from court, but as an
officer of the court, I did believe, in good faith, that after
speaking with the Commonwealth[’s] Attorney, we had agreed on
a date.” The circuit court replied: “You do understand that
nothing you talk about between counsel is an order until a
judge says it’s an order, right?” Singleton responded that he
had signed the continuance order and that he was unaware the
continuance order was not entered. The court concluded the
hearing with an admonition that Singleton should never excuse
a client from appearing on a scheduled trial date without
knowing that a judge has in fact given approval for a
continuance.
The circuit court entered a final order on September 13,
2007, finding Singleton guilty of contempt of court pursuant
to Code § 18.2-456. In the final order, the court handwrote the
following after the contempt charge: “[i]ntentional
[i]nterference with [the] administration of justice by willfully
& knowingly failing to appear for a court appearance without
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prior court approval and further, advising his client not to
appear resulting in an arrest warrant being issued for the
client’s arrest.”
On appeal to the Court of Appeals, Singleton argued the
evidence was insufficient to find him guilty of contempt
because there was no evidence of contemptuous intent.
Singleton also argued that the trial court denied him due
process by erroneously employing summary, rather than plenary,
contempt procedures.
In a published opinion, a three-judge panel of the Court
of Appeals affirmed Singleton’s conviction, holding that by
not appearing on the original trial date and advising his
client not to appear on that date, Singleton undermined the
trial court’s authority to control the court’s docket and
schedule criminal cases for trial. Singleton v. Commonwealth,
52 Va. App. 665, 671, 667 S.E.2d 23, 26 (2008). The Court of
Appeals also held that Singleton was precluded from raising
for the first time on appeal the argument that he should have
received the procedural protections associated with plenary
contempt. Id. at 672-73, 667 S.E.2d at 26. We awarded
Singleton an appeal.
II. Zedd v. Commonwealth
Kiwani Scott retained attorney Gordon Andrew Zedd to
represent her in an appeal of a misdemeanor conviction for
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reckless driving. The matter was originally set for trial on
October 2, 2007 in the Circuit Court of the City of Norfolk.
The day before the trial, Zedd contacted the prosecutor
assigned to the case in order to request a continuance because
of a scheduling conflict. The prosecutor agreed to continue
the case to November 6, 2007 because its key witness, the
state trooper who had charged Scott, was unavailable to attend
the trial. Subsequently, Zedd contacted Scott and told her
that she did not need to appear in court the next day.
Zedd and the prosecutor appeared in the circuit court the
following day and submitted a joint continuance order to the
court. The court questioned Zedd about the whereabouts of his
client. Zedd stated that he had excused his client. In
response to the court’s questions for why he had excused his
client, Zedd noted the unavailability of the state trooper and
the Commonwealth’s inability to proceed. Additionally, the
prosecutor highlighted to the court that this was a joint
continuance motion due to a mutual inability to proceed. 2
At the conclusion of the proceedings on October 2, 2007,
the circuit court issued a bench warrant charging Zedd with
contempt of court. Pursuant to that warrant, Zedd was
arrested and processed. On February 28, 2008, the court
2
It is unclear from the limited record before us what
action the circuit court took with regard to the requested
continuance.
5
entered a final order finding Zedd guilty of contempt of court
pursuant to Code § 18.2-456 and imposing a fine of $50.
On appeal to the Court of Appeals, Zedd argued the
evidence was insufficient to find him guilty of contempt
because there was no evidence of contemptuous intent. Zedd
also argued that the trial court denied him due process by
erroneously employing summary, rather than plenary, contempt
procedures. In addition, Zedd attempted to distinguish his
case from Singleton’s case, noting that unlike Singleton, he
had appeared on the scheduled trial date.
The Court of Appeals in an unpublished opinion held that
Zedd’s appearance in court on the scheduled trial date was
insufficient to distinguish his case from Singleton’s case.
Accordingly, for the reasons stated in Singleton, 52 Va. App.
at 672-73, 667 S.E.2d at 26, the Court of Appeals affirmed
Zedd’s conviction. Zedd v. Commonwealth, Record No. 2621-07-1
(December 2, 2008). We awarded Zedd an appeal.
DISCUSSION
The dispositive issue in these appeals is whether there
was sufficient evidence to convict Singleton and Zedd of
contempt of court. The applicable standard of appellate
review is well established. Where the sufficiency of the
evidence is challenged after conviction, we review the
evidence in the light most favorable to the Commonwealth,
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according it the benefit of all reasonable inferences fairly
deducible therefrom. Dowden v. Commonwealth, 260 Va. 459,
461, 536 S.E.2d 437, 438 (2000). As a result, we will reverse
a judgment of the circuit court only upon a showing that it is
plainly wrong or without evidence to support it. Viney v.
Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).
Both Singleton and Zedd were convicted of contempt of
court in violation of Code § 18.2-456, which states in
relevant part:
The courts and judges may issue attachments for
contempt, and punish them summarily, only in the
cases following:
(1) Misbehavior in the presence of the court, or
so near thereto as to obstruct or interrupt the
administration of justice;
. . . .
(4) Misbehavior of an officer of the court in his
official character;
(5) Disobedience or resistance of an officer of the
court, . . . to any lawful process, judgment, decree
or order of the court.
We have long recognized that “[a]ll courts in this
Commonwealth have the power to impose penalties for
contemptuous conduct.” Gilman v. Commonwealth, 275 Va. 222,
227, 657 S.E.2d 474, 476 (2008). Moreover, “[a] court’s
authority to punish contemptuous conduct is exercised to
preserve the power of the court and to vindicate the court’s
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dignity.” Id. Thus, in criminal contempt proceedings, it is
essential to consider whether the accused intended to
undermine this authority. See Potts v. Commonwealth, 184 Va.
855, 859, 36 S.E.2d 529, 530 (1946) (“any act which is
calculated to embarrass, hinder, or obstruct the court in the
administration of justice is contempt”) (emphasis added). In
the present appeals, it is not contended that the conduct of
these attorneys invoked the application of Code § 18.2-456(4)
or (5). Therefore, we must decide whether the evidence was
sufficient to establish that Singleton and Zedd intended “to
obstruct or interrupt the administration of justice.” Code
§ 18.2-456(1).
For more than a century, Virginia courts have required
the element of intent in order to sustain a criminal contempt
conviction. See Carter v. Commonwealth, 96 Va. 791, 802-03,
32 S.E. 780, 780 (1899); Wise v. Commonwealth, 97 Va. 779,
781-82, 34 S.E. 453, 453-54 (1899); Wells v. Commonwealth, 62
Va. (21 Gratt.) 500, 509 (1871); accord Robinson v.
Commonwealth, 41 Va. App. 137, 143, 583 S.E.2d 60, 63 (2003)
(finding intent a necessary element of criminal contempt);
Carter v. Commonwealth, 2 Va. App. 392, 397, 345 S.E.2d 5, 8
(1986) (same). For purposes of resolving the present appeals,
we find a review of our prior precedents instructive.
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In Wells, an attorney erroneously advised his client to
seek an injunction from a federal district court, sitting as a
court in bankruptcy, to enjoin state circuit court
proceedings. 62 Va. (21 Gratt.) at 505. When the attorney
was cited for contempt of court for interfering with a state
court proceeding, he filed an affidavit indicating it was his
good faith belief that his client did have such a right under
the law, and he intended no disrespect to the state court.
Id. at 506. This Court held that, although he may have erred
in judgment, the attorney could not be held in contempt
because “he was acting in good faith, for what he believed to
be the interest of his client, and not from disrespect to the
court.” Id. at 509.
In Wise, an attorney had scheduled a case for trial in a
court in the City of Richmond at 10:00 a.m. with the
reasonable expectation that he would finish the case in time
to begin a second case scheduled at 11:00 a.m. in Henrico
County. 97 Va. at 780, 34 S.E. at 453. When it became
apparent that he would be late for his second case, the
attorney telephoned the Commonwealth’s Attorney of Henrico
County and asked him to inform the judge that he was
unavoidably detained in the trial of the case in the Richmond
court. Id. The attorney then returned to the courtroom in
the Richmond court and requested a continuance of the trial.
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Id. The judge refused to interrupt the trial to permit the
attorney to go immediately to the court in Henrico County.
Id. Upon his late arrival, the court in Henrico County
imposed a fine upon the attorney for contempt of court. Id.
at 780-81, 34 S.E. at 453. We reversed the contempt
conviction, holding there could be no contempt when “[t]here
is nothing in the facts stated to give color to the suspicion
that, in what he did, [the attorney] intended the slightest
contempt of, or disrespect to, the lawful authority of the
[court in Henrico County].” Id. at 781, 34 S.E. at 453
(emphasis added). We further stated that the court in Henrico
County could have continued the case or proceeded without the
attorney “but it could not punish for a contempt of court when
it is manifest that no contempt of its authority was
intended.” Id. at 782, 34 S.E. at 454 (emphasis added).
Finally, in Carter, we considered whether the defendant
had the requisite intent for criminal contempt because he sent
a telegram to his attorney for use in court falsely stating
that he was ill and could not appear for a scheduled trial. 3
96 Va. at 802, 32 S.E. at 780. Carter contended that he did
not make the statement for the purpose of obtaining a
continuance and that no disrespect to the court was intended.
3
Carter was convicted under a criminal contempt statute
identical to modern-day Code § 18.2-456. See Carter, 96 Va.
at 803, 32 S.E. at 780.
10
Id. We affirmed Carter’s conviction, however, holding that
“[t]he effort to obtain a continuance . . . by means of a
statement as to health which he knew to be false tended
directly to impede and obstruct the administration of
justice.” Id. We went on to note that lack of intent is a
defense to criminal contempt:
It is true that with respect to conduct or language
where the intent with which a thing is said or done
gives color and character to the act or words, a
disclaimer of any purpose to be guilty of a contempt
or to destroy or impair the authority due to the
court, is a good defence; but this is true only of
language or acts of doubtful import, and which may
reasonably bear two constructions. In the case
before us there could have been but one motive, and
that to influence the action of the court with
respect to a case before it by means of a statement
known and admitted to be false.
Id. at 802-03, 32 S.E. at 781 (internal citation omitted).
In the appeals presently before us, nothing in either
record suggests an intent on the part of the two attorneys “to
obstruct or interrupt the administration of justice” as
required by Code § 18.2-456(1). In Singleton’s case, the
prosecutor agreed to a continuance of the case and released
his witness, making it impossible for the Commonwealth to
proceed to trial on the original trial date. Similarly, in
Zedd’s case, the prosecutor agreed to a continuance because
the Commonwealth’s key witness was unavailable to appear and
testify on the original trial date. Unquestionably,
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Singleton’s absence on the scheduled trial date and his
release of his client is entirely consistent with his asserted
good faith belief that the circuit court would grant the
mutually requested continuance because of the Commonwealth’s
inability to proceed to trial on the scheduled trial date.
Likewise, the evidence is entirely consistent with Zedd’s
assertion that he excused his client from appearing on the
scheduled trial date on the reasonable expectation that the
court would grant the mutually requested continuance because
of the Commonwealth’s inability to proceed to trial without
its necessary witness. Accordingly, we hold that the evidence
was insufficient to establish that Singleton or Zedd intended
“to obstruct or interrupt the administration of justice.” In
the absence of such intent, we further hold that the evidence
is insufficient to sustain their convictions for criminal
contempt under Code § 18.2-456(1). Accordingly, the Court of
Appeals erred in finding the evidence sufficient to convict
Singleton and Zedd of contempt of court.
In reaching our resolutions of these appeals, we are not
unmindful of the trial court’s “inherent authority to
administer cases on its docket.” Yarbrough v. Commonwealth,
258 Va. 347, 361, 519 S.E.2d 602, 608 (1999). Certainly,
whether a continuance should be granted rests within the sound
discretion of the trial court. Cardwell v. Commonwealth, 248
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Va. 501, 508, 450 S.E.2d 146, 151 (1994). In that regard, we
take this opportunity to stress that criminal defense
attorneys and as well attorneys for the Commonwealth, in the
absence of an established contrary policy by a particular
trial court, should not follow a practice of agreeing to a
continuance of a pending case under circumstances that
essentially limit, as a practical matter, the trial court’s
ability to exercise its discretion whether to grant a
continuance. When critical witnesses are excused prior to the
granting of a continuance by the trial court, the discretion
of the trial court to grant a continuance under such
circumstances is severely limited. Experience teaches that
when continuances are requested in a timely fashion and for
the reasons typified by the circumstances in the present
cases, the trial courts will routinely ensure that by granting
a continuance both parties will be afforded a trial on the
merits of a particular case. Undoubtedly, the better practice
would dictate that until the trial court enters a continuance
order, the defense attorney should appear in court on the date
scheduled for trial with his or her client and request the
continuance. Similarly, the attorney for the Commonwealth
should appear in court and not excuse its witnesses in
anticipation that the trial court will grant a mutual request
for a continuance. In short, in the absence of the entry of a
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continuance order prior to the scheduled trial date, attorneys
should not presume that a continuance will be granted.
CONCLUSION
For these reasons, we will reverse the judgment of the
Court of Appeals sustaining Singleton’s conviction of contempt
of court in violation of Code § 18.2-456, and will vacate that
conviction. We will also reverse the judgment of the Court of
Appeals sustaining Zedd’s conviction of contempt of court in
violation of Code § 18.2-456, and will vacate that conviction. 4
Record No. 082270 - Reversed and vacated.
Record No. 090012 - Reversed and vacated.
4
In light of our resolution of these appeals on the
sufficiency of the evidence issue, we need not address the
remaining issue raised.
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