ANALYSIS OF JULY 31, 2012 CAV OPINIONS[Posted July 31, 2012] Criminal appellants endure an 0-for-3 day at the plate today in the Court of Appeals of Virginia. (The baseball metaphor appears because, as I begin to type this analysis, the Major League Baseball trading deadline is about 45 hours away, and my beloved Dodgers are fairly active in the market.)
When a juvenile-court judge rules against you and hands down an order and you ball up the paper, is that direct contempt? The trial judge in Parham v. Commonwealth certainly thought so, and convicted Parham pretty much on the spot. Parham appealed but got no relief in circuit court.
Today, a panel of the CAV affirms, finding the evidence sufficient to make out a case of contempt. The opinion parses the contempt statute, which provides in pertinent part, “Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice,” is contempt. One question that today’s decision analyzes is whether an action that’s in the presence of the court has to obstruct or interrupt the administration of justice. Not so, the court finds today; any misbehavior in the presence of the court is enough to justify a conviction.
From a grammatical point of view, this is the correct reading of the statute. That comma breaks the definition into two parts, and since the “obstruct or interrupt” part is only found after the comma, that language doesn’t modify what comes before. Since this conduct occurred in the judge’s presence, the court was empowered to punish it summarily.
The court also turns aside a due-process challenge, since those protections aren’t triggered in summary-contempt proceedings.
Courtwatchers will be interested to follow Judge Kelsey’s reasoning as he reaches back into legal history, citing Blackstone’s Commentaries for the premise that courts have the inherent authority to punish for contempt. He probably didn’t need to go back quite that far – a cite to the more recent Scialdone v. Commonwealth (2010) would have sufficed alone – but he likes to cite Blackstone, and who are we to fuss?
The second case of the day involves the tragedy of the death of an eight-month-old child who sustained brain injuries as a result of being shaken. In Burnette v. Commonwealth, the child’s mother was acquitted by a jury of murder, but convicted of child abuse. She raised four issues on appeal.
First, she claimed that the evidence was insufficient to prove that she inflicted any injuries on the child. The evidence in the case established that the only persons who had physical custody of the child on the day when the injuries were sustained were the mother and her boyfriend. The boyfriend testified that he didn’t shake or otherwise injure the child, and the jury was free to believe that, the court rules today. The jury was probably helped by the fact that the mother gave varying accounts of what had happened when she spoke with doctors and police, and the fact that she admittedly lied to a grand jury investigating the death.
This, then, comes down to a simple credibility contest, and on appeal, almost all appellants have a very difficult hill to climb when they select that route. The jury was entitled to believe the boyfriend and thus focus on the mother by process of elimination.
Second, the mother objected to the admission of evidence of her prior bad acts, in the form of previous complaints to Child Protective Services. The court finds that this evidence was subject to an exception to the general rule prohibiting bad-acts evidence, in that this “demonstrated appellant’s prior relationship with and feelings toward” the child. Effectively, the court finds that these events showed that the mother had an abusive relationship with the child.
I’ll admit to being troubled by this line of analysis. If the court is correct here, then virtually any negative contact between a victim and a defendant can be admitted, with the putative purpose being to show their previous relationship. But the real purpose of this evidence was unquestionably to convince the jury that the mother had mistreated the child before, so she’s more likely to have mistreated her this time. If that’s the state of the law, then the exception will have nearly swallowed the rule; the only thing left of the general rule would be bad acts that had no nexus with the given victim.
Third, the mother objected because the trial court prohibited her from asking medical professionals whether they agreed with scientific literature that states that the typical shaken-baby perpetrator is a white male who is last with the victim and who calls 911. These circumstances would have implicated the boyfriend, but the appellate panel rules today that the trial court correctly excluded it. There was no foundation for this kind of expert testimony, since none of the doctors were trained in this kind of sociology.
Finally, the mother objected to two autopsy photographs of the child, one of which showed several areas of hemorrhages on the inside of the skull. Those hemorrhages illustrated the prosecution’s case and corroborated the medical examiner’s opinion of the manner of death. The mother argued that this evidence was unnecessary because the cause of death was not in dispute.
This, too, is an unfair fight on appeal; appellate courts afford substantial deference to trial judges’ rulings on admissibility. The appellate panel concludes that these photos had clear relevance to the case, and the defense can’t “sanitize the evidence” by stipulating certain components away.