COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
STERLING H. WEAVER, SR.
MEMORANDUM OPINION * BY
v. Record No. 1056-01-1 JUDGE ROBERT J. HUMPHREYS
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Sterling H. Weaver, Sr., pro se.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Sterling H. Weaver, Sr., an attorney licensed to practice law
in Virginia, appeals his conviction for criminal contempt for
obstructing the administration of justice by failing to prepare
for trial. Weaver asserts that the trial judge erred: 1) by
failing to recuse himself; 2) by admitting into evidence the
transcript of a pretrial hearing; 3) by permitting a witness to
testify who had not been excluded from the courtroom; and 4) by
finding the evidence sufficient to support his conviction. For
the reasons that follow, we reverse the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of
the proceedings necessary to the parties' understanding of the
disposition of this appeal.
Weaver was substituted as counsel for Derrick Majette on
November 9, 2000. 1 Majette's trial was scheduled to take place
on January 29, 2001.
On Friday, January 5, 2001, Weaver filed a "Notice and
Motion to Suppress Evidence," "Notice and Motion for a Bill of
Particulars," "Notice and Motion for Discovery and Inspection,"
and "Notice and Motion for Exculpatory Evidence." The clerk's
office received these motions at 4:26 p.m. Each motion and
accompanying notice indicated that the motions would be heard
the following Monday, January 8, 2001 at 9:00 a.m. Accordingly,
the clerk placed the motions on the circuit court docket for
January 8, 2001. However, the Commonwealth did not appear at
the hearing, and the motions were removed from the docket for
that day.
The record does not reflect whether the Commonwealth
received the notice and motions before January 8, 2001, nor does
the record reflect the date the motions were heard. However,
the transcript refers to the trial court entering an order on
1
A copy of the order substituting Weaver as counsel was not
made part of the record on appeal. However, in the transcript
of the trial Weaver refers to "getting in the case on the 9th."
In addition, the trial court variously states that Weaver became
counsel for Majette on November 9th and November 6th.
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the Thursday before trial, requiring discovery to be produced.
Thus, we presume that the motions were heard and disposed of on
January 25, 2001.
On January 29, 2001, the case was called for trial as
scheduled. After the Commonwealth indicated its readiness to
proceed, Weaver informed the trial court that he was not prepared
to begin trial and requested a continuance. Weaver contended that
based upon the discovery he had received, he needed additional
time to investigate several matters on behalf of his client. In
particular, Weaver pointed to a photograph he had found which was
used in a photographic lineup and had the notation "Joyce
Alexander. None of the above," on the back. Weaver claimed he
needed time to locate and question Alexander concerning her
knowledge of the incident at issue. The Commonwealth objected to
Weaver's motion and responded that all exculpatory evidence had
been provided to Weaver in compliance with the discovery order.
In response, the trial court scolded both parties for the
dilatory manner in which the pretrial motions were filed and
disposed of in the case. Nevertheless, Weaver maintained that he
was not ready to proceed. Accordingly, the trial judge granted
the continuance, but issued a rule to show cause against Weaver to
appear and show cause why he should not be found in contempt for
failing to prepare for trial. Weaver was found in criminal
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contempt of court and sentenced to a fine of $250 after his March
6, 2001 trial on the rule to show cause. 2
On appeal, Weaver contends the evidence is insufficient to
establish he failed to prepare for trial. In the alternative,
Weaver argues the evidence is insufficient to demonstrate that any
such failure was with the intent to "obstruct or interrupt the
administration of justice."
It is well established that "where the court's authority to
punish for contempt is exercised by a judgment rendered, its
finding is presumed correct and will not be reversed unless
plainly wrong or without evidence to support it."3 Code
§ 18.2-456 provides courts and judges with the power to
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;
(2) Violence, or threats of violence, to a
judge or officer of the court, or to a
juror, witness or party going to, attending
or returning from the court, for or in
respect of any act or proceeding had or to
be had in such court;
2
Although a rule to show cause rather than a criminal
warrant was issued, a misdemeanor sentencing order was entered
finding Weaver guilty of criminal contempt in violation of Code
§ 18.2-456, and sentencing him to a fine in the amount of $250.
Weaver has raised no objection to the manner in which these
proceedings were instituted. Thus, we refer to the proceedings
below as a trial rather than a hearing.
3
Brown v. Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d
147, 149 (1998).
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(3) Vile, contemptuous or insulting language
addressed to or published of a judge for or
in respect of any act or proceeding had, or
to be had, in such court, or like language
used in his presence and intended for his
hearing for or in respect of such act or
proceeding;
(4) Misbehavior of an officer of the court
in his official character;
(5) Disobedience or resistance of an officer
of the court, juror, witness or other person
to any lawful process, judgment, decree or
order of the court.
This Court has defined "'[c]ontempt [as] . . . an act in
disrespect of the court and its processes, or which obstructs
the administration of justice, or tends to bring the court into
disrepute.'" 4 "It includes any act 'which is calculated to
embarrass, hinder, or obstruct the court' in the discharge of
its responsibilities." 5 Although Code § 18.2-456(1) requires no
element of specific intent to "obstruct or interrupt" the
administration of justice, we have held in cases of criminal
contempt that in order "to support a finding of the willful
intent necessary for [a] conviction of [direct] contempt, the
record must contain evidence that the [conduct was engaged in
4
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)).
5
Baugh v. Commonwealth, 14 Va. App. 368, 372, 417 S.E.2d
891, 894 (1992) (quoting Carter, 2 Va. App. at 396, 345 S.E.2d
at 7-8).
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for] the purpose of obstructing or interrupting the
administration of justice . . . ." 6
The record fails to reflect any evidence of intent on the
part of Weaver to obstruct justice and/or interrupt the
administration of justice. Indeed, Weaver simply requested a
continuance in order to pursue the matters raised in discovery.
The record does not indicate that Weaver had requested a
previous continuance of the matter, nor does it establish that
Weaver's request was unreasonable in light of the discovery he
had received. Accordingly, on this record, we cannot find as a
matter of law that Weaver's conduct amounted to criminal
contempt in violation of Code § 18.2-456. Thus, we reverse the
judgment of the trial court and dismiss. 7
Reversed and dismissed.
6
Carter, 2 Va. App. at 399, 345 S.E.2d at 9.
7
By so ruling, we do not suggest that an attorney's lack of
preparation can never constitute contemptuous conduct in
violation of Code § 18.2-456.
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