                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Annunziata and
          Senior Judge Overton
Argued by teleconference


WILLIE HARVEY MIDDLEBROOKS, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1516-01-1                  JUDGE NELSON T. OVERTON
                                                JULY 30, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     H. Vincent Conway, Jr., Judge

             Oldric J. LaBell, Jr., for appellant.

             Jennifer R. Franklin, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     Willie Harvey Middlebrooks, Jr., appellant, appeals his

convictions for abduction, maiming, robbery and use of a firearm

in the commission of a felony, in violation of Code §§ 18.2-48,

-51, -58, and -53.1 respectively.     Appellant contends the trial

court erred by allowing the Commonwealth to elicit testimony

about the existence and details of appellant's juvenile

adjudications of assault and battery.     Appellant further argues

that the trial court erred by finding him in contempt of court

and summarily sentencing him, without a jury, to a term of

imprisonment and a fine in excess of that prescribed by law.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
For the reasons that follow, we find the trial court erred by

allowing the Commonwealth to impeach appellant with his prior

juvenile adjudications and the details thereof.     We further find

that the trial court erred by summarily sentencing appellant in

excess of the statutory limits.

                             BACKGROUND

     Appellant, appellant's twin brother, and another

individual, named "Yellow," held Nicholas Lawrence against his

will throughout one evening in 1999.      Yellow, with appellant's

and his brother's assistance, tortured Lawrence because he would

not give them money.   Lawrence testified appellant put a gun to

his head and asked whether Lawrence knew their names.     Lawrence

stated he did not.   The next morning, accompanied by all three

assailants, Lawrence withdrew money from his bank account and

gave it to them.   They then let Lawrence go.

     At trial, appellant claimed Yellow threatened him and his

brother, coercing them to participate in the actions against

Lawrence.   Appellant also testified he left Newport News because

he had had some trouble in Newport News relating to an incident

in which he "stood up" for Lawrence.

     On cross-examination, the Commonwealth asked appellant if

he had had any other trouble in Newport News.     Appellant

responded in the negative.   The Commonwealth again asked whether

appellant had had any trouble in the area and whether he had a



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temper.   Appellant again answered in the negative.   The

Commonwealth then asked if appellant had ever had a problem with

his temper.   Appellant answered he did not.   The Commonwealth

proceeded to question appellant, over his objection, about two

prior juvenile adjudications for assault and battery.    The trial

court stated appellant had "opened the door" to the inquiry by

stating he did not have a problem with his temper.

     At sentencing, appellant said to the assistant

Commonwealth's attorney, "Fuck you, bitch."    The trial court

found appellant in contempt of court and summarily sentenced him

to twelve months in jail and a $1,000 fine.

                              ANALYSIS

              Evidence of Prior Juvenile Adjudications

     The Commonwealth asked appellant if he had ever had a

problem with his temper and whether he had had any other

problems in Newport News.   Appellant answered both inquiries in

the negative.   Over appellant's objection, the Commonwealth

proceeded to cross-examine appellant about his prior juvenile

adjudications for assault and battery.

     In Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846

(1999), the Commonwealth asked a defense witness whether he had

a history of drug abuse.    The witness responded he did not.    The

trial court allowed the Commonwealth to cross-examine the




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witness with regard to a prior misdemeanor conviction for

distribution of marijuana.   This Court found that

           "[w]here the purpose of the inquiry is to
           impeach a witness' veracity,
           cross-examination concerning a witness'
           prior convictions is limited to prior felony
           convictions and convictions for misdemeanors
           involving moral turpitude." Misdemeanor
           crimes of moral turpitude are limited to
           those crimes involving lying, cheating and
           stealing, including making a false statement
           and petit larceny.

 Id. at 448, 512 S.E.2d at 853.

     The Commonwealth's attorney sought to impeach appellant's

veracity with regard to his answers to the questions the

Commonwealth posed.   However, assault and battery is not a crime

involving moral turpitude.   Further, the assault and battery

offenses were juvenile adjudications.      Absent a foundation other

than impeaching appellant's veracity, the trial court should not

have allowed the Commonwealth to pursue this line of

questioning.

     As the basis for his ruling, the trial judge stated

appellant "opened the door" to the line of questioning by

stating he did not have a temper.       However, appellant did not

deny he had prior convictions, he denied having a temper.

Having assault and battery convictions does not prove one has a

temper.   Further, the trial court's reasoning suggests appellant

put his character in evidence by his answer.      The Commonwealth




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merely elicited the response that appellant did not have a

temper.   No inference can be drawn from two assault and battery

convictions as to whether one has a temper or a problem with his

temper.

     Additionally, appellant did not "open the door" in his

direct testimony that he was a peaceful person, nor did his

answers to the Commonwealth's questions suggest he was

attempting to show the jury he was a peaceful citizen.   If

appellant had raised character evidence of peacefulness, the

Commonwealth might have properly impeached such character

evidence with proof of other crimes.   However, as in Newton, the

Commonwealth opened the door to appellant's prior convictions by

asking whether appellant had had any trouble in the community

and with his temper.   The trial court erred by allowing the

Commonwealth to cross-examine appellant about the fact of his

prior adjudications and the details of those offenses.

Therefore, we reverse the judgments of conviction for abduction,

maiming, robbery and the three related use of a firearm in the

commission of a felony charges and remand for further

proceedings if the Commonwealth be so advised.

          Excessive Penalty for Summary Contempt Conviction

     At the conclusion of appellant's sentencing hearing, while

still in the courtroom, appellant stated to the assistant




                                 -5-
Commonwealth's attorney, "Fuck you, bitch."    The trial judge did

not hear the statement.

     Code § 18.2-456(1) provides that a court or judge may find

one in contempt and punish the offender summarily for

"[m]isbehavior in the presence of the court, or so near thereto

as to obstruct or interrupt the administration of justice."

Code § 18.2-457 states that "[n]o court shall, without a jury,

for any such contempt as is mentioned in the first class

embraced in § 18.2-246, impose a fine exceeding $250 or imprison

more than ten days[] . . . ."   Code § 18.2-456(3) prohibits use

of "vile, contemptuous or insulting language . . . used in the

judge's presence and intended for his hearing for or in respect

of such act or proceeding."

     The trial judge stated, "Mr. Middlebrooks, anything which

tends to disrupt this Court in its administration of justice is

contempt of court.   The Court is of the opinion that what just

occurred disrupted this Court and was in contempt of this

Court's process."    The trial judge added he was pronouncing

sentence "for what just occurred between you and the

Commonwealth's Attorney in the presence of this Court."    Nothing

in the record supports the Commonwealth's contention that

appellant intended the trial judge to hear his statement to the

prosecutor.   Therefore, the evidence does not establish a

violation of Code § 18.2-456(3).



                                 -6-
     The trial judge's statements to appellant at the time of

the contempt do, however, support a contempt finding under Code

§ 18.2-456(1).    Thus, appellant should have been sentenced

pursuant to Code § 18.2-457.    Therefore, we find the trial court

sentenced appellant in excess of the limits set out in Code

§ 18.2-457.    However, "[w]here the sentence imposed is in excess

of that prescribed by law, only the part that is excessive is

invalid."     Brown v. Commonwealth, 26 Va. App. 758, 763, 497

S.E.2d 147, 150 (1998) (citation omitted).

     For the above stated reasons, we reverse the felony

convictions and remand for further proceedings if the

Commonwealth be so advised.    With respect to the contempt

proceeding, we affirm the conviction, but vacate the sentence

and impose a sentence of ten days in jail and a $250 fine.

                                 Reversed and remanded,
                                 in part and affirmed, in part,
                                 as modified.




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