COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
MURRAY L. STEINBERG
OPINION BY
v. Record No. 2111-93-2 CHIEF JUDGE NORMAN K. MOON
SEPTEMBER 5, 1995
KATHERINE T. STEINBERG (SHUMAKER)
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Lee A. Harris, Jr., Judge
Murray L. Steinberg, pro se.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III Attorney General, on
brief), for appellee.
Appellant, Murray L. Steinberg, appeals his conviction of
criminal contempt for failing to comply with the trial court's
orders regarding child support and visitation. Steinberg argues
that the court erred by not following the proper procedure for
criminal contempt proceedings, thereby denying him due process of
law, and by finding that he waived his right to counsel in the
contempt proceeding. We affirm Steinberg's conviction because he
was given adequate notice of the trial court's decision to
proceed with criminal contempt charges against him and because
the trial judge properly ascertained that Steinberg knowingly and
intelligently waived his right to be represented by counsel.
The pertinent facts are as follows. On September 3, 1993,
Katherine Steinberg Shumaker (Shumaker) filed a motion in the
trial court charging Steinberg with contempt of court after
Steinberg failed to comply with the terms of the trial court's
July 15, 1993 order concerning a visitation schedule with the
parties' daughter and failed to make child support payments to
Shumaker. On September 8, 1993, Steinberg filed a responsive
pleading asking for a jury trial, recognizing that because he
might be "imprisoned," the proceeding against him was "quasi-
criminal." Steinberg had before been held in contempt and
received jail time. The trial court entered a show cause order
against Steinberg on September 8, 1993. On September 11,
Steinberg was personally served with the order and notice that
the hearing would be held on September 21, 1993. The order
stated that Steinberg should show cause why he should not be
fined or imprisoned, or both, for his alleged failure to comply
with the court's order.
Prior to the hearing, Steinberg, who was representing
himself, filed several pleadings with the court requesting a
change of venue and a jury trial. He challenged the jurisdiction
of the court, alleged the court was biased against him, and
stated he was not waiving any rights. These motions were denied.
The judge then determined that the matter was "in the nature
of a criminal contempt" and made the Commonwealth a party.
Although Shumaker's counsel questioned the court's ruling and the
necessity of joining the Commonwealth in the case, Steinberg
raised no objection to the court's ruling to proceed with the
case as one for criminal contempt. In denying the motion for a
jury trial, the judge ruled that because the matter would be
treated as petty contempt and any punishment imposed would not
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exceed six months Steinberg was not entitled to a jury trial.
Powell v. Ward, 15 Va. App. 553, 425 S.E.2d 539 (1993). The jury
trial question was not raised on appeal.
The court then discussed with Steinberg whether he wanted to
be represented by an attorney. Steinberg told the court that he
could not afford an attorney but did not "relinquish" his right
to an attorney. When Steinberg asked whether the state would
provide him with an attorney, the trial judge questioned him
about his financial situation. Steinberg testified that he
worked forty hours a week but received no income, except for
approximately $300 a month from a company in California.
Steinberg also testified that he had approximately $65,000 in
equity in his home, $2,500 in equity from another account, and
1
retained earnings of approximately $28,000 due from his company.
The court determined that Steinberg was not indigent and had
"many assets" and available funds from which he could retain
counsel if he chose. After the Commonwealth's attorney further
questioned Steinberg about his finances, the judge reiterated his
ruling that Steinberg was not indigent and, therefore, was not
entitled to court-appointed counsel.
The court then asked Steinberg if he was ready to proceed.
Steinberg stated that he was prepared. At the close of the
evidence, the court held Steinberg in contempt and sentenced him
1
Steinberg is the sole shareholder and officer of his
corporation. During oral argument before this Court, Steinberg
conceded that he also owned an automobile through his corporation.
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to sixty days in jail. Steinberg objected to the imposition of
the jail sentence because he had not been represented by counsel.
The judge told him that he had waived his right to counsel after
the court had determined that he was not indigent and was not
entitled to court-appointed counsel.
I. Criminal Contempt Procedures
Unlike a proceeding for civil contempt, which "is remedial
and for the benefit of the injured party," Small v. Commonwealth,
12 Va. App. 314, 317, 398 S.E.2d 98, 100 (1990), the focus of a
proceeding for a criminal contempt is to enforce the dignity of
the court itself.
The power to punish for contempt is inherent in, and as
ancient as, courts themselves. It is essential to the
proper administration of the law, to enable courts to
enforce their orders, judgments and decrees.
Carter v. Commonwealth, 2 Va. App. 392, 395, 345 S.E.2d 5, 7
(1986).
Steinberg alleges, however, that the trial court did not
follow proper procedures because he was not given notice, nor was
he indicted or arraigned. We hold that under the circumstances
of this case, where Steinberg was served with a show cause order
specifically setting forth the details of his alleged offense and
where the record plainly establishes that he had knowledge prior
to the hearing that the case was being tried as a criminal
contempt, the notice requirements for due process purposes were
satisfied and Steinberg did not have to be indicted or arraigned.
In United States v. United Mine Workers, 330 U.S. 258
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(1947), the United States Supreme Court was asked to reverse a
finding of both criminal and civil contempt where the contempt
proceeding carried the name and number of the underlying equity
suit. The Court indicated that although the criminal and civil
contempt matters were tried together, prejudice was avoided so
long as "the defendants were . . . accorded all the rights and
privileges owing to defendants in criminal contempt cases." Id.
at 298.
The record in this case refutes Steinberg's claim concerning
notice and establishes that he was accorded all the rights and
privileges owed to him. In response to Shumaker's motion
charging him with contempt, Steinberg filed a responsive pleading
requesting a jury trial because of the "quasi-criminal" nature of
the case. Steinberg was served personally with the show cause
order and notice of the hearing. The purpose of such an order is
to provide a party with notice. Board of Supervisors v. Bazile,
195 Va. 739, 746, 80 S.E.2d 566, 571 (1954). Steinberg was aware
of the charges and potential scope of punishment, as demonstrated
by his filings with the court of various documents relating to
the jurisdiction and imprisonment. His actions clearly establish
that he had adequate notice of the nature of the charges against
him. See Boggs v. Commonwealth, 229 Va. 501, 519, 331 S.E.2d
407, 420 (1985), cert. denied, 475 U.S. 1031 (1986) (defendant
implicitly acknowledged fair notice of capital murder charge when
he moved to quash indictment at pretrial hearing challenging
facial constitutionality of capital statutes).
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Moreover, the trial court informed Steinberg that the case
would be tried as criminal contempt as soon as the court made
that determination, which was before opening statements were made
or evidence was presented. Specifically, the court stated:
I think the show cause is one, in my mind, that sounds
in the nature of a criminal contempt show cause, and
that is the way that I'm going to handle the matter.
And by doing that, I am going to join the Commonwealth
as a party to this matter in this show cause hearing
today, and by doing that, Mr. Kizer, would you handle
the matter on behalf of the Commonwealth?
In Powell v. Ward, 15 Va. App. 553, 425 S.E.2d 539 (1993), we
reversed a contempt conviction because the trial court did not
adequately articulate the nature of the proceedings at the
commencement of the hearing. We noted that "the parties were
surprised to learn at the close of evidence that the trial court
had converted the civil contempt hearing into a criminal trial.
We conclude that the appellants were substantially prejudiced by
the lack of notice that they were being tried for criminal
contempt." Id. at 560, 425 S.E.2d at 554 (emphasis added).
Here, Steinberg did not request a continuance, and he has not
shown that his defense was compromised by any lack of notice.
Thus, because Steinberg received adequate notice and had an
adequate opportunity to prepare his defense, and because he
personally appeared and fully presented his defense, his due
process challenge to the contempt conviction must fail.
II. Waiver of Right to Counsel
The Commonwealth has the burden of proving a waiver of the
right to counsel by clear, precise, and unequivocal evidence.
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"Whether a waiver is voluntary and competent depends upon the
particular circumstances of each case, including the defendant's
background, experience, and conduct." Church v. Commonwealth,
230 Va. 208, 215, 335 S.E.2d 823, 828 (1985). In testing the
sufficiency of the defendant's waiver of his right to counsel,
our primary inquiry "is not whether any particular ritual has
been followed in advising the defendant of his rights and
accepting his waiver, but simply whether the procedures followed
were adequate to establish `an intentional relinquishment of the
right to counsel, known and understood by the accused.'" Kinard
v. Commonwealth, 16 Va. App. 524, 527, 431 S.E.2d 84, 86 (1993)
(citations omitted). The Supreme Court "has never held that the
absence of such a cautionary instruction, standing alone, defeats
a waiver." Superintendent v. Barnes, 221 Va. 780, 784, 273
S.E.2d 558, 561 (1981).
Because a defendant's assertion of his right to counsel
may conflict with the government's right to an orderly
and expeditious prosecution, trial courts are often
faced with the dilemma of choosing between these
competing interests. Under certain circumstances, the
trial court is entitled to conclude that the defendant
has actually waived his right to counsel and thus can
require that the defendant stand trial without the
assistance of counsel.
Bolden v. Commonwealth, 11 Va. App. 187, 190-91, 397 S.E.2d 534,
536 (1990), cert. denied, 520 U.S. 943 (1991).
Here, the trial court, after careful inquiry, correctly
concluded that Steinberg had waived his right to counsel. The
court noted that while Steinberg had before been represented by
counsel, he also represented himself on "many occasions." In
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light of Steinberg's past court appearances and his memoranda
filed with the court, the court told Steinberg that while
Steinberg was "certainly familiar with the proceedings and the
law," he was nevertheless entitled to have an attorney if he so
chose. When Steinberg replied that he was unable to afford an
attorney and asked if the state was willing to provide one, the
court proceeded to determine whether Steinberg was indigent.
After a thorough examination by the court and the Commonwealth's
attorney, the court found that Steinberg had "many assets" and
available funds from which he could hire an attorney, and, thus,
was not entitled to a court-appointed counsel. Steinberg did not
contest the court's ruling and did not request a continuance so
that he might retain an attorney.
This is not an instance where a waiver is presumed from a
silent record. Cf. Sargent v. Commonwealth, 5 Va. App. 143, 149,
360 S.E.2d 895, 899 (1987). Here, the record shows that
Steinberg affirmatively elected to go forward without the
assistance of counsel. Although Steinberg stated that he was not
waiving his right to counsel, he acquiesced in the court's
decision to go forward with the contempt proceeding after having
been advised of his right to counsel. By his acquiescence,
Steinberg waived the right to counsel. "He cannot approbate and
reprobate -- invite error and then take advantage of his own
wrong." Sullivan v. Commonwealth, 157 Va. 867, 878, 161 S.E.
297, 300 (1931). Lastly, Steinberg's legal experience and his
demonstrated skill in these proceedings belie any claim now that
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he did not understand the dangers of self-representation. See
O'Dell v. Commonwealth, 234 Va. 672, 689, 364 S.E.2d 491, 501,
cert. denied, 488 U.S. 871 (1988).
Affirmed.
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