COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
BRIAN MICHAELS, s/k/a
LT. BRIAN MICHAELS
OPINION BY
v. Record No. 1292-99-2 JUDGE ROBERT P. FRANK
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Christina E. Kearney (John A. Gibney, Jr.;
Robert A. Dybing; Shuford, Rubin & Gibney, on
briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Brian Michaels (appellant) was convicted in a bench trial of
criminal contempt, in violation of Code § 18.2-456. On appeal,
appellant contends the trial court erred in: 1) accepting his
waiver of counsel when it failed to advise him of the nature of
the proceedings, the possible punishment, and the right to
court-appointed counsel; 2) failing to advise him of his right to
remain silent; 3) failing to give him the opportunity to present
evidence in his own behalf; 4) finding the evidence sufficient to
prove he acted with criminal intent; and 5) convicting him where
his duty existed only by implication. We find that the evidence
was insufficient to convict appellant of contempt; therefore, we
reverse the conviction.
I. BACKGROUND
The facts are not controverted. Murphy Hughes ("Hughes")
was an inmate at the Richmond City Jail pending his trial. At a
hearing on January 21, 1999, the trial court continued Hughes'
case until June 21, 1999, for a psychological evaluation at
Central State Hospital. The trial court issued a written order
reflecting the continuance. 1 The order was received by the City
Jail, but Hughes was never transported to Central State Hospital.
No separate order was entered scheduling a psychological
evaluation at Central State Hospital or directing that Hughes be
transported to Central State Hospital.
On May 5, 1999, the trial court issued a rule to show cause
against appellant, directing him to show cause why he should not
be "found in contempt for failure to abide by the court's order
of January 21, 1999 . . . ."
Pursuant to the show-cause order, appellant appeared before
the trial court on May 7, 1999. Appellant was a deputy sheriff
for the City of Richmond and served as the supervisor of the
records for the jail. As supervisor, he oversaw other deputies
who received transportation orders.
The following colloquy occurred between the trial court and
the appellant:
THE COURT: This is a show cause hearing
in which Lieutenant Michaels shall show
cause, if any, why he should not be held in
contempt because the defendant in Case
F-98-4207, Mr. Murphy Hughes, has been held
1
The order stated, in part, "For reasons satisfactory to
the Court, this matter is continued to June 21, 1999 at
9:00 a.m. in order for the defendant to undergo inpatient
psychological evaluation at Central State Hospital."
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in the jail since January 21st, 1999, and was
not sent to Central State Hospital.
Mr. Michaels, because you are before the
Court on a show cause order, I would need to
ask if you would like to obtain the services
of an attorney.
THE DEFENDANT: No, ma'am.
THE COURT: You're prepared to go
forward?
THE DEFENDANT: Yes, ma'am.
THE COURT: The Court has some questions
for you. Why don't you step forward, raise
your right hand, and be sworn in.
The court then conducted a direct examination of the
appellant.
Q. Specifically as to this case, the
Court has three questions. The first is, why
was Mr. Murphy kept in jail after January
21st and not sent to Central State?
A. We had a couple of problems, ma'am.
First off, the records room went under a
change of personnel right around that time.
We had a whole new staff brought in. And
when the order did come in –- it was faxed to
me on the 22nd –- it was read by one of the
other deputies in the records room.
It should have been brought to my
attention, because there should have been
questions on it. It wasn't specifically
stated in there that he was to be transported
by the Sheriff's Office to Central State.
Also, we didn't have a date or a time when he
was to be admitted to Central State. If
those questions had come to me or those
concerns had come to me at the time, I,
certainly, would have questioned it and I
would have called the Court on it.
The first time I saw the order was
when Ms. Dailey called me the other day about
that, and I explained to her that, that was
the first time I had seen it and the order
does not say that we were to take him, so we
would need a transportation order on this
court order.
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Q. So I understand it was not your
decision but someone else's. It was the
decision of another official in the Sheriff's
Department that Mr. Hughes should remain
incarcerated in the jail, but that was not
your decision; is that correct?
A. Well, the decision wasn't
consciously made to keep Mr. Hughes in the
jail. When the order comes over from the
Court, the order is read, and we update it in
the system to ensure that the order is
correct or what we have in the system is
correct on the individual.
Q. But the decision that was made in
relationship to this order was made by who?
That's the question the Court has.
Regardless of which decision was made, who
made that decision to interpret this
particular order in that particular manner?
A. That decision was made by another
deputy in the office.
* * * * * * *
Q. My question is for this particular
individual, who has not been convicted. He's
not under probation supervision, so he can't
be transferred by the probation department.
He has not been released on bond, so he
cannot be transferred by his defense
attorney.
A. Correct.
Q. The Judge cannot transfer him. How
would he be transferred?
A. That would fall on Sheriff's
transportation.
Q. It's clear to you that the Sheriff's
Department has the responsibility for seeing
to it that this defendant gets to Central
State?
A. Yes, ma'am, we do.
THE COURT: Are there any questions?
MS. REINER [Commonwealth's Attorney]:
No, Judge.
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THE COURT: Any questions, Ms. Sheridan?
MS. SHERIDAN [Hughes' attorney]: No
ma'am.
THE COURT: You may step down.
THE DEFENDANT: Thank you, ma'am.
The court then proceeded to find appellant guilty of
contempt.
THE COURT: The Court will find that
your conduct, in agreeing with your Deputy
Dickerson, was intentional, willful, and
deliberate. It was mentally and
professionally irresponsible. It was in
total disregard of the rights of the
Commonwealth to bring this defendant to trial
within the speedy trial rights that are set
forth pursuant to 19.2-243.
* * * * * * *
It showed a total lack of respect for
the judicial branch of government, and it
was, regrettably, ignorant of the legal
consequences that the Court must uphold.
The Court is somewhat concerned that
there is someone under your supervision, who
is a records clerk, who is ignorant of
statutory interpretation, [and] legal
interpretation . . . .
I will find that as her supervisor, Ms.
Dickerson's supervisor, since you were aware
of the fact that you have violated the
Court's order, the Court will hold you in
contempt. The court will impose a $1,000
fine and a 10-day jail sentence with 10 days
suspended. Thank you very much.
The appellant did not move to strike the evidence nor did he
object to any of the trial court's procedures.
II. ANALYSIS
A. Procedural Default
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The Commonwealth contends appellant is procedurally barred
from raising these issues. Appellant concedes that he did not
object to the trial court's rulings at trial but maintains that
the "ends of justice" and "good cause shown" exceptions in Rule
5A:18 apply. We will focus on the "ends of justice" exception.
"The Court of Appeals will not consider an argument on
appeal which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)
(citing Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d
630, 631 (1991)); see also Rule 5A:18.
However, Rule 5A:18 provides for consideration of a ruling
by the trial court that was not objected to at trial "to enable
the Court of Appeals to attain the ends of justice." Rule 5A:18.
"'The ends of justice exception is narrow and is to be used
sparingly'" when an error at trial is "'clear, substantial and
material.'" Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487
S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth, 8 Va. App.
126, 132, 380 S.E.2d 8, 10-11 (1989)). "In order to avail
oneself of the exception, a defendant must affirmatively show
that a miscarriage of justice has occurred, not that a
miscarriage might have occurred." Id. at 221, 487 S.E.2d at 272
(citing Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d
742, 744 (1987)).
In order to show that a miscarriage of
justice has occurred, an appellant must
demonstrate more than that the Commonwealth
failed to prove an element of the
offense. . . . [T]he appellant must
demonstrate that he or she was convicted for
conduct that was not a criminal offense or
the record must affirmatively prove that an
element of the offense did not occur.
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Id. at 221-22, 487 S.E.2d at 272-73 (emphasis in original).
Appellant argues that a miscarriage of justice occurred
because the record clearly established that the continuance order
did not state a clearly defined duty to transport Hughes to
Central State Hospital; therefore, appellant contends that his
conduct was not a crime.
Whether the ends of justice exception applies is
inextricably linked to determination of the merits of this case.
Because we hold that appellant committed no offense, the trial
court's error was "clear, substantial and material;" therefore,
we may apply the ends of justice exception.
B. Sufficiency of Evidence
We held in Wilson v. Collins, 27 Va. App. 411, 424, 499
S.E.2d 560, 566 (1998), as follows:
A person is in "contempt" of a court order
only if it is shown that he or she has
violated its express terms. See Winn v.
Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309
(1977). "'[T]he process for contempt lies
for disobedience of what is decreed, not for
what may be decreed.'" Id. (quoting
Taliaferro v. Horde's Adm'r, 22 Va. (1 Rand.)
242, 247 (1822)).
"[B]efore a person may be held in contempt
for violating a court order, the order must
be in definite terms as to the duties thereby
imposed upon him and the command must be
expressed rather than implied."
Id. (citation omitted).
If the actions of the alleged contemnor do
not violate a clearly defined duty imposed
upon him or her by a court's decree, the
alleged contemnor's actions do not constitute
contempt. Id. at 10-11, 235 S.E.2d at 309.
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The Supreme Court of Virginia held in Winn v. Winn, 218 Va.
8, 10, 235 S.E.2d 307, 309 (1977), as follows:
As a general rule, "before a person may be
held in contempt for violating a court order,
the order must be in definite terms as to the
duties thereby imposed upon him and the
command must be expressed rather than
implied." Wood v. Goodson, 253 Ark. 196,
203, 485 S.W.2d 213, 217 (1972). This is
also the rule followed in Virginia. In
Taliaferro v. Horde's Adm'r., 22 Va. (1
Rand.) 242, 247 (1822), we said that "(t)he
process for contempt lies for disobedience of
what is decreed, not for what may be
decreed." See also French v. Pobst, 203 Va.
704, 710, 127 S.E.2d 137, 141 (1962).
In this case, the court order upon which the contempt show
cause was predicated did not expressly impose a duty upon
appellant or any other personnel from the Sheriff's office to
transport Hughes to Central State Hospital. Appellant testified
that no one in his office interpreted the continuance order as a
transportation order. At best, the duty to transport is implied.
Therefore, appellant did not violate the trial court's order, and
his actions did not constitute contempt.
III. CONCLUSION
For these reasons, we apply the ends of justice exception
pursuant to Rule 5A:18 and hold that the evidence was
insufficient to convict appellant of contempt. We do not reach
appellant's remaining assignments of error because they are
rendered moot by our reversal on the sufficiency of the evidence.
Reversed and dismissed.
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