Amos v. Commonwealth

UPON A REHEARING EN BANC

McCullough, judge.

We consider in this case whether a litigant who was held in summary contempt is procedurally barred from raising certain arguments on appeal and, if not, whether the trial court erred in exercising its power of summary contempt. We conclude that Mrs. Amos’s legal arguments are properly before us and that the finding of summary contempt must be reversed.

Factual Background

Felecia Amos and her estranged husband, Antonio Jose Amos, shared custody of their son. Their relationship was hostile: he had been convicted of assaulting her and she had obtained a restraining order against him. Mr. Amos’s sentencing order imposed a suspended sentence and required that he be of good behavior. On October 30, 2010, Mrs. Amos wrote a letter to the Commonwealth’s Attorney for Arlington County, with a copy to the court, alleging that her estranged *734husband had violated the restraining order. She stated that she was “writing this letter seeking HELP from your office as I am in fear of my life.” (capitalization in original). She alleged, among other things, that during a custody exchange of their son at a McDonald’s restaurant, Mr. Amos engaged in actions designed “to intimidate, harass and threaten” her.

Based on Mrs. Amos’s allegations, the court issued a rule to show cause to determine whether Mr. Amos had violated the terms of his probation. Mrs. Amos appeared as a witness. She testified that, during the exchange on October 29, 2010, at the McDonald’s, her husband crudely insulted her and that he made threats against her, telling her “you’re going down.” She stated that Mr. Amos began to leave the restaurant after picking up their son, but that he then walked back inside and used more profanity against her. She testified that she feared the situation was escalating, so she asked another customer to escort her to her car. She claimed that Mr. Amos followed her outside, yelling, “hey, buddy, what are [you] doing talking to my wife? She is a married woman,” and that she noticed his car following hers after she drove out of the parking lot. Finally, she claimed that Mr. Amos followed her in his car after the incident at the McDonald’s. She also testified about a separate occasion in which she felt Mr. Amos was harassing her.

Jason Salinas, a Sergeant in the United States Army, also testified at the hearing. Salinas explained that the First Army Commander had asked him to “help a soldier out” (Mr. Amos had achieved the rank of Colonel in the Army prior to his retirement) by observing the custody exchange of the Amoses’ son. Salinas did not serve under Mr. Amos in the military and, in fact, had never seen him before. Salinas stated that he had no personal interest in the outcome of this case. On October 29, 2010, Salinas arrived at the McDonald’s and took a seat where he would be well positioned to hear any conversation between Mr. and Mrs. Amos. He testified that, once Mrs. Amos arrived, there was no communication between her and Mr. Amos—they did not speak at all. Mrs. Amos dropped off the child and left. Mr. Amos stayed behind. Mr. *735Amos also tape-recorded this exchange. The recording, which was played for the court, is consistent with Salinas’s account and inconsistent with the testimony provided by Mrs. Amos. Finally, Mr. Amos denied the allegations Mrs. Amos made against him.

At the conclusion of the hearing, the court asked the prosecutor if she had anything else to add. The prosecutor stated that she was “speechless.” In response, the court stated “[w]ell, there are going to be some other people speechless in a minute.” The court then announced that it was dismissing the rule to show cause. The transcript reflects the following:

THE COURT: I’m not through. I am not through. The Court is not through.
When this first started, I said, well, it has been eight months without incident, so—it’s not unusual in a divorce case to see some back and forth, but there has been nothing for eight months, and I just don’t know what would be accomplished by punishing this man in keeping this flame burning.
But we have a different situation now.
There’s no question that he has not violated this Court’s orders. But what we do have is a [serious] situation that this Court does not take lightly.
Ms. Amos, come up here. Come up here by the podium, Ms. Amos. Yes, ma’am. Come on up here. I want to make sure we’re on the same page.
Stand in front of that podium.
You have come into this court and made some serious accusations, and you have flat-out lied under oath. And it’s very offensive to this Court, to every person in the legal community what you’re doing. You’re nothing but a vindictive woman towards this man.
I can understand your dislike for whatever reason. But you will not, as far as this Court is concerned, use this process to further that vindictiveness.
The Code of Virginia, under 18.2-456 provides that courts and judges may issue attempts [sic] for contempt and *736punish them summarily, only in the following cases—and there are several, but I want to share one with you.
“Misbehavior in the presence of the court or so near thereto as to obstruct or interrupt the administration of justice.”
I can’t think of any more interruption of justice than what you have done deliberately in this courtroom.
And the Court finds you in contempt of court. You’re sentenced to jail for ten days.
Remand her into custody, Sheriff.
THE COURT: Call the next case.

(Whereupon, the proceedings at 11:00 a.m. were concluded). Mrs. Amos did not object at the time to being held in summary contempt. The court entered an order the same day memorializing the finding of contempt, remanding her to the custody of the sheriff and ordering a bail bond in the amount of $10,000.1

Seventeen days after the hearing, on June 27, 2011, Mrs. Amos filed a “motion to vacate sentence and object to this honorable courts [sic] finding.” In her motion, she cited relevant case law, including Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010), and argued that holding her in summary contempt violated her due process rights. The trial court never ruled on the motion. She also filed a notice of appeal on June 27, 2011.

I. Mrs. Amos’s arguments are not procedurally defaulted.

The threshold question we must address is whether the arguments Mrs. Amos makes on appeal are procedurally defaulted under Rule 5A:18. We conclude, on the specific facts before us, that Mrs. Amos lacked the opportunity to object to the summary contempt finding at the time it was made. Therefore, by operation of Code § 8.01-384(A), the absence of an objection does not prejudice her on appeal.

*737Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Code § 8.01-384(A) operates in conjunction with this rule. This statute provides, in relevant part, that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him ... on appeal.” The rule and the statute are complementary: Rule 5A:18 presupposes an opportunity to object “at the time of the ruling or order” and Code § 8.01-384(A) expressly provides that where the party does not have the opportunity to object to the ruling or order at the time it is made, the absence of an objection shall not prejudice her on appeal.

We note at the outset that Mrs. Amos did not have an opportunity to object at the time of the ruling or order. Mrs. Amos, who had appeared as a witness rather than as a party, was called to the bench. After the court castigated Mrs. Amos for her lies and for her vindictiveness toward her husband, the court ordered the sheriffs deputy to remove Mrs. Amos from the courtroom and directed the clerk to call the next case. On review of this record, it is plain that Mrs. Amos did not have the “opportunity to object to [the] ruling or order ... at the time it [was] made.”2

The Commonwealth responds that even if Mrs. Amos lacked an opportunity to object at the time the court held her in *738contempt, she in fact had the opportunity to object to the ruling of the court by filing, as she did, a motion to vacate which asked the court to reconsider. The Commonwealth further posits that Mrs. Amos’s motion was unavailing because, following Brandon v. Cox, — Va. -, -, 736 S.E.2d 695, 697 (2012), a litigant must not only file a motion to reconsider with the clerk of court, but also must take steps to ensure that the court is “made aware of the argument[s]” in the motion to reconsider. Id. We find the Commonwealth’s arguments unpersuasive for two interrelated reasons.

First, Code § 8.01-384(A) provides that if a party “[had] no opportunity to object to a ruling or order at the time it [was] made, the absence of an objection shall not thereafter prejudice him ... on appeal.”

When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted). We have no occasion here to spell out how Code § 8.01-384(A) might apply in other situations. Whatever other situations Code § 8.01-384(A) may cover, it plainly applies when a litigant has been foreclosed from making a timely objection “at the time the ruling or order was made.” And it further plainly indicates that a party shall not be prejudiced on appeal from that lack of opportunity to object at the time the ruling or order was made. To hold that Mrs. Amos is prejudiced on appeal when she did not have the opportunity to object would require *739us to ignore altogether the language in Code § 8.01-384(A) that Mrs. Amos “shall not” be prejudiced on appeal. We are not at liberty to do so.

Second, there are situations when a delayed objection does no good.3 A principal purpose of the contemporaneous objection rule is to place the trial court “in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.” Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002) (citation omitted). Requiring a party to file a motion to reconsider in order to preserve an issue might be perfectly sensible in some, perhaps even most, contexts. The same cannot be said, however, with regard to summary contempt. Summary contempt is “immediately] punish[ed.]” In re Oliver, 333 U.S. 257, 274-75, 68 S.Ct. 499, 508-09, 92 L.Ed. 682 (1948). A contempt finding is effective upon oral pronouncement from the bench. See Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 709, 643 S.E.2d 151, 156 (2007) (noting that a “court’s contempt power encompasses written orders as well as ‘oral orders, commands and directions of the court’ ” (quoting Robertson v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352, 359 (1943))). Given the immediacy of summary contempt, it is crucial to afford the contemnor the opportunity to object immediately before or after the contempt is pronounced. That way, the trial court will be “in a position, not only to *740consider the asserted error, but also to rectify the effect of the asserted error.” Johnson, 264 Va. at 33, 563 S.E.2d at 731.

We further note that Brandon did not involve a situation in which the trial court failed to afford the appellant an opportunity to contemporaneously object. Instead, the litigant in Brandon simply missed her first opportunity to object and then sought to make up lost ground by asking the court to reconsider. Therefore, the Court in Brandon had no occasion to construe the language from Code § 8.01-384(A) at issue here, namely, that an appellant shall not be prejudiced on appeal when that litigant “[had] no opportunity to object to a ruling or order at the time it [was] made.” It is noteworthy that, in quoting from Code § 8.01-384(A) in Brandon, the Supreme Court specifically omitted the language above by inserting ellipses where this language appears. — Va. at -, 736 S.E.2d at 696. Nor was Brandon a summary contempt case. Brandon involved a landlord tenant dispute regarding the return of a security deposit. Id. at -, 736 S.E.2d at 695. In short, Brandon does not supply the rule of decision here.

Certainly, a person who had no opportunity to object at the time a trial court found her in summary contempt may be able to and may choose to file a motion to reconsider. It may even be wise to do so. Such a step, however, is not required under Code § 8.01-384(A) in order to preserve an issue for appellate review.4 Moreover, forcing a contemnor to seek reconsideration as the exclusive means of preserving a challenge to a finding of summary contempt places that person in a precarious position with regard to obtaining appellate review. For one thing, the contemnor may have served all or part of the *741sentence for contempt prior to having the chance to ask for reconsideration and thus face little incentive to seek appellate relief. For another, the contemnor, like all litigants, has no right to present oral argument on a motion to reconsider. Instead, such arguments are presented at the discretion of the trial court. Rule 4:15(d). Although that rule governs civil cases, no case suggests a trial court has any less discretion in a criminal case. Such matters are commonly disposed of on the pleadings, without a hearing, in criminal and in civil cases. In addition, if the record does not show that the trial court has been made aware that a reconsideration motion has been filed, the mere filing of the motion will not be sufficient to preserve the arguments made for the first time in the reconsideration motion. Brandon, — Va. at -, 736 S.E.2d at 697. It will not always be clear, particularly to pro se litigants, how to make the trial court aware of the filing of the motion. Finally, if the court fails to rule on the motion to reconsider, for whatever reason, and the contemnor does not assign error to the failure to rule, the appellate court will hold that the issues on which the trial court failed to rule have been defaulted. Kitchen v. City of Newport News, 275 Va. 378, 387 n. 6, 657 S.E.2d 132, 137 n. 6 (2008).

We therefore conclude that, in the summary contempt context, the phrase “at the time [the ruling or order was] made,” found in Code § 8.01-384(A), means that the contemnor must be afforded the opportunity to object immediately before or after the contempt finding.5 Furthermore, the fact that the trial court never ruled on her motion to reconsider or was not made aware of it does not foreclose appellate review of Mrs. Amos’s arguments. This conclusion is driven by a plain language reading of Code § 8.01-384(A), that the absence of such an opportunity to object “shall not thereafter prejudice [a party] ... on appeal.” Concretely, this means that Mrs. Amos may raise arguments on appeal that she did not present at trial.

*742II. Summary contempt was not appropriate.

We next consider whether the trial court erred in summarily holding Mrs. Amos in contempt. The answer is fairly straightforward. Indeed, the Commonwealth, which ably presents arguments on the question of procedural default, does not attempt to defend the correctness of the summary contempt finding.

Although it is settled law that courts possess the power to summarily hold persons in contempt, Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), the exercise of the summary or direct contempt power “ ‘is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.’ ” Scialdone, 279 Va. at 442, 689 S.E.2d at 727 (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395-96, 69 L.Ed. 767 (1925)). Summary contempt is reserved for “ ‘ “exceptional circumstances” ... such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.’ ” Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir.1985) (quoting Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965)).

The court held Mrs. Amos in summary contempt at the conclusion of a hearing in which she testified as a witness against her estranged husband. The court based its finding on its conclusion that she had testified untruthfully and that she was vindictive toward her estranged husband. The United States Supreme Court in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, explained that

[e]xcept for a narrowly limited category of contempts, due process of law ... requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.

Id. at 275, 68 S.Ct. at 508-09. The Court acknowledged the “narrow exception to these due process requirements” for summary contempt, but that exception is limited to

*743charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent “demoralization of the court’s authority” before the public.

Id. “If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires ... that the accused be accorded notice and a fair hearing as above set out.” Id. at 275-76, 68 S.Ct. at 509.

The truth or falsity of Mrs. Amos’s testimony and whether she was a victim or a vindictive person “depended] upon statements made by others.” Id. at 275-78, 68 S.Ct. at 509. See also Scialdone, 279 Va. at 445-48, 689 S.E.2d at 729-30. Therefore, summary contempt was not available. Accordingly, we reverse the judgment of the trial court holding Mrs. Amos in summary contempt.6

CONCLUSION

We reverse the trial court’s judgment of summary contempt and enter final judgment for Mrs. Amos.

Reversed and final judgment.

. According to her pleadings, Mrs. Amos was released after seven hours of confinement.

. When exercising its power to hold a witness or a litigant in direct contempt, a court ordinarily will afford the contemnor the opportunity to speak. See Taylor v. Hayes, 418 U.S. 488, 498, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974) (“[W]here summary punishment for contempt is imposed during trial, 'the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.’ ” (citation omitted)). See also Benchbook Comm., Virginia Criminal Benchbook for Judges and Lawyers § 14.08[l][c] (2012-13) (checklist for direct contempt includes an opportunity to "[p]ermit contemnor (and contemnor's attorney, if present) to speak”); Bench-book Comm., Virginia Civil Benchbook for Judges and Lawyers § 10.06[4][c][iii] (2012-13) ("Even in summary proceedings, the con*738temnor should be given the right to explain his or her conduct or to produce reasons why he or she should not be punished or why his or her punishment should be mitigated.”). The record reveals no such opportunity here.

. For example, in a jury trial, objections to improper argument must be made before the case is submitted to the jury—an objection after that time comes too late. Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 781 (1977). Additionally, in ordinary circumstances, " 'an objection to the admissibility of evidence must be made when the evidence is presented. The objection comes too late if the objecting party remains silent during its presentation and brings the matter to the court’s attention by a motion to strike made after the opposing party has rested.' " Bitar v. Rahman, 272 Va. 130, 139, 630 S.E.2d 319, 324 (2006) (quoting Kondaurov v. Kerdasha, 211 Va. 646, 655, 629 S.E.2d 181, 185 (2006)). The dissent, in footnote 10, agrees that Code § 8.01-384(A) would preserve appellate review in situations where a trial court has foreclosed an opportunity to contemporaneously make a proffer of evidence, to make objections to improper argument before a jury, and to make objections to the admissibility of evidence. In our view, the immediacy of summary contempt is analogous to these situations.

. In Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), a summary contempt case, the Supreme Court of Virginia held the due process argument defaulted on appeal. The litigant, who appeared as an attorney rather than as a witness, was not, like Mrs. Amos, foreclosed from offering an objection at the time the Court pronounced its judgment of summary contempt. As the Court expressly noted, it had no occasion to apply Code § 8.01-384(A) in that case. Id. at 406, 641 S.E.2d at 505. Moreover, the contemnor in Nusbaum received as his punishment a fine rather than immediate incarceration.

. Our holding should not be interpreted as disturbing settled precedent regarding the rules of procedural default. As noted above, these rules serve important and salutary purposes.

. The fact that Mrs. Amos impelled the Commonwealth to request the issuance of a show cause and sent a copy of the letter to the court does not change the answer. Summary contempt applies when the conduct in question occurs " ‘in open court, in the presence of the judge ... where all of the essential elements of the misconduct [were] actually observed by the court.' ” Scialdone, 279 Va. at 444, 689 S.E.2d at 728 (quoting In re Oliver, 333 U.S. at 275, 68 S.Ct. at 509). Mrs. Amos's drafting and mailing of a letter to the Commonwealth’s Attorney, with a copy to the court, in which she detailed the allegations against her former husband, did not occur in the presence of the court.