Orndoff v. Commonwealth, Record No. 0973-21-4 (Va. Ct. App. June 6, 2023)
This case discusses under what circumstances a trial court has the power of summary contempt.
Facts. Katie Orndoff testified for the Commonwealth in a jury trial against James Phillips for domestic assault and battery. During her testimony, Orndoff repeatedly referenced Phillips’ prior arrests despite the parties’ agreement not to. Phillips’ counsel eventually asked for a sidebar and the trial court called a recess. After the jury left, the court asked Orndoff if she had taken any “medicines or narcotics” that might influence her. Orndoff said that she had recently come off antidepressants and mood stabilizers and that “this process” was making her anxious. The court pressed Orndoff, saying, “You appear to be under the influence at this time.” Orndoff eventually admitted to smoking marijuana before driving to court but did not say how much or how long before driving that she had smoked. After her admission, the trial court held her in contempt for testifying while voluntarily intoxicated and sentenced her to ten days in jail. It then declared a mistrial.
The Commonwealth argued that it should be allowed to rehabilitate Orndoff because despite her admission to smoking, she did not say that she was intoxicated. The Commonwealth argued that the behaviors that the judge took to indicate intoxication were behaviors that Orndoff normally exhibited when sober. The judge denied the request. Orndoff appealed, arguing that due process entitled her to notice of the contempt charge, a fair hearing, and representation by counsel.
Issue. Whether the court erred in exercising its power of summary contempt.
Holding. Summary contempt was not available because the judge did not personally observe in open court all the essential elements of the alleged contemptible conduct.
Notes. Summary adjudication and punishment for contempt is narrowly limited to direct contempt, and direct contempt must be committed in the presence of the court. To qualify as direct contempt, the “court-disturbing misconduct must not only occur in the court’s immediate presence,…the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct.” This knowledge cannot be acquired from the testimony of others or even from the accused’s confession.
Here, the judge did not personally observe the essential elements of intoxication and voluntary use of an intoxicant, therefore he did not have the power of direct contempt. The court did not note an odor of marijuana or observe Orndoff consuming an intoxicant. Though the court characterized Orndoff’s behaviors as indicative of intoxication, these are “at most, indicia of possible intoxication.” The judge had no personal knowledge that Orndoff’s behavior was caused by an intoxicant, and both the Commonwealth and Orndoff offered benign explanations for these behaviors. As such, this was a case of indirect contempt, entitling Orndoff to a trial in which she had a right to present a defense and be represented by counsel. Because summary contempt was unavailable, Orndoff’s conviction was vacated and final judgment entered in her favor.