A defendant in court pertaining to an alleged violation of a no-contact order, who threatened a lawyer during lunch recess, could not be summarily held in contempt by the circuit court judge who did not witness the exchange, and the Court of Appeals reverses the summary contempt finding.
Following the lunch recess, the prosecutor informed the court that another lawyer, who was present for a separate, related hearing, reported to the prosecutor that appellant approached him in the hallway and called him a “perverted son of a bitch” before saying, “You’re going to get yours.” The lawyer allegedly responded, “That’s a nice threat,” to which appellant replied, “You bet it is.” Appellant then apologized before coming back into court.
It is well established that a court is invested with power to punish for contempt. There are two distinct types of consent, direct and indirect.
The facts evidence by the record in this case are such that a summary proceeding was inappropriate under the circumstances. Appellant’s comments to the attorney were made in the hallway during the lunch recess and outside of the hearing of the judge. Once court was back in session, the prosecutor informed the trial court of appellant’s comments. The conduct that served as the basis for appellant’s summary contempt outside of the presence of the court, thus the trial court’s knowledge of the conduct necessarily depended on statements made by others. It was therefore error to hold appellant in summary contempt. Because summary contempt was not available, appellant has demonstrated a miscarriage of justice sufficient to apply the ends of justice exception to Rule 5A:18.
Conviction for summary contempt reversed.
Heffernan v. Commonwealth (Chafin) No. 2103-13-4, Nov. 4, 2014; Arlington County Cir.Ct. (Fiore) Elizabeth Tuomey for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 014-7-333(UP), 5 pp.