Witness who caused mistrial held in contempt

Where a witness appeared at a felony assault trial “while voluntarily intoxicated” and gave “legally incompetent as well as unfairly prejudicial testimony throughout her testimony[,]” causing the court to declare a mistrial and to hold the witness in criminal contempt, motions from the witness and the commonwealth to vacate the conviction are denied.

However, the witness’s 10-day jail sentence is modified to time served.

Court’s summary of case

“This matter arises from a finding of direct summary criminal contempt as a result of a witness (Katie Orndoff, hereinafter ‘witness’ or ‘contemnor’ or ‘Orndoff’) appearing in a felony jury trial while voluntarily intoxicated and consequently giving legally incompetent as well as unfairly prejudicial testimony throughout her testimony.

“The witness’s testimony was at times nonresponsive to the questions asked by counsel for both parties. Moreover, it often included inadmissible, legally prejudicial content, and was in direct violation of a prior agreement of the parties to refrain from eliciting or referring to such content. The prejudicial testimony continued after numerous admonitions by the court during the trial.

“In spite of the pre-trial efforts of counsel, the objections of counsel during the trial, as well as the admonitions of the court, the witness’s legally incompetent and unfairly prejudicial testimony continued unabated until the defense asked for a sidebar to address the witness’s misconduct. Given the circumstances, the court determined that it would be more appropriate to excuse the jury.

“When the jury was excused, the court made certain findings concerning the witness’s behavior during the trial. The court also made inquiries of the witness in an attempt to add clarity to the matter, and otherwise to give her an opportunity to give a benign, mitigating, or otherwise legally satisfactory explanation for her conduct. She offered none. Rather, she offered an admission to using Marijuana prior to driving to court to testify.

“Having created the necessity for a mistrial in the matter, the court found her in contempt of court pursuant to VA Code Ann. § 18.2-456 (1) and sentenced her to 10 days in jail. …

“From this conviction, the contemnor and the Commonwealth filed written motions to vacate the contempt conviction[.]”

Holding

“The precise question for this court is whether a witness who (1) appears for a felony jury trial in a voluntarily intoxicated condition, (2) testifies incompetently and with unfair prejudice to the accused despite admonitions from the court, and (3) consequently causes a mistrial, is guilty of direct summary criminal contempt pursuant to VA Code Ann. § 18.2-456 (1) and related authorities?

“Upon this court’s review of its prior findings of fact and conclusions of law, both on the record, and as set forth in its prior written orders, and upon a reconsideration of the same after argument of counsel, the answer remains yes.”

Discussion

“VA Code Ann.§ 18.2-456(1) is divided into two separate clauses. Clause one simply prohibits ‘misbehavior in the presence of the court.’ Clause two prohibits ‘misbehavior … so near thereto as to obstruct or interrupt the administration of justice.’ Orndoff’s argument confuses the two. …

“Orndoff argues that, even if intoxicated during her testimony, she did nothing to actually obstruct or interrupt the administration of justice. …

“This court finds that her misconduct during the trial amounted to a violation of the ‘misbehavior’ clause which is separately defined and carries no requirement of ‘actual obstruction.’ However, she caused perhaps the greatest form of ‘actual obstruction’ and ‘interruption of the administration of justice’ by causing a mistrial in a felony jury matter. …

“It is true that the element of intent is required to sustain a criminal contempt conviction. … However, Orndoff fails to acknowledge that, in Virginia, contempt is not a specific-intent offense. …

“Here, this court found Orndoff’s condition to be one of voluntary intoxication. While she perhaps had no specific malevolent intent or purpose in disrupting the orderly conduct of the court’s business, no such intent is required.

“The willfulness and recklessness associated with consuming intoxicating substances prior to a known court appearance, as a witness in a felony jury trial, certainly satisfies the intent element of contempt. Any reasonable, prudent person would know that they should refrain from intoxicating substances prior to something as important as a felony jury trial. …

“Was Orndoff’s case one of direct contempt? … Orndoff’s intoxicated demeanor, incompetent and prejudicial testimony, accruing through the course of her testimony, all resulted in the manifest necessity to declare a mistrial in a felony jury matter. The prejudicial testimony, the obvious manifestation of her voluntary intoxication, occurred directly in the presence, and under the ‘eye of the court.’ …

“No portion of the court’s finding of contempt depended, in any way, upon knowing exactly how, when or where Ms. Orndoff became intoxicated, nor did it depend upon the substance(s) she ingested. …

[T]he court’s questions to Orndoff were not intended to obtain evidence of an essential element of her misbehavior – because, given the totality of circumstances surrounding her repetitively incompetent and prejudicial testimony, and its impact upon the trial of Phillips, further evidence was unnecessary – but rather the questioning was to allow her the opportunity to offer evidence of an excuse or justification in defense or mitigation of her misbehavior. Unfortunately for Orndoff, her explanations were ‘clearly inadequate’ and, indeed, inculpatory.

“Accordingly, this court finds, upon review of the record and the applicable law, that the questioning of Orndoff was properly a legitimate, if not standard, part of a summary inquiry in a matter of direct contempt.”

Commonwealth v. Orndoff, Case No. CR 36777-00, Jan. 14, 2022, Loudoun County Circuit Court (Fisher). VLW 022-8-001, 36 pp.