Barksdale v. State

EYLER, Judge. Appellant, Santwan Barksdale, was convicted in the Circuit Court for Howard County, non-jury (Dennis M. Sweeney, J.), of criminal contempt for failure to make child support payments to Serleste Holbrook for the support of their minor child. Appellant was sentenced to 180 days imprisonment in the Howard County Detention Center. On appeal to this Court, appellant contends that he was entitled to a trial by jury, that the trial court erred in admitting prior civil contempt orders, and that the evidence was insufficient to support the conviction.

Finding no error, we affirm the judgment of the trial court. Facts The State, acting through the State’s Attorney for Howard County, filed a petition to hold appellant in criminal contempt for failure to obey a child support order. The order in question was dated June 27, 1995, and provided for child ³⁹⁵ support in the amount of $672.96 per month, plus $67.29 per month on an arrearage. At trial, the State introduced the June 27,1995 order, a civil contempt order dated February 12, 1996, a civil contempt order dated May 14, 1996, and an order dated June 26, 1996, which entered judgment against appellant for an arrearage in the amount of $10,114.40.

The State also introduced a certified letter from the Department of Social Services, dated September 26, 1997, showing an arrearage as of that date in the amount of $19,891.85, and a certified “wage screen” from the Department of Labor, Licensing & Regulation that showed appellant earned $1,159 in the first quarter of 1996, $1,518 in the second quarter of 1996, and $75 in the last quarter of 1996. Appellant testified as follows. He was 30 years old and, at the time of trial, was living with his grandparents. On June 12, 1995, he resigned from a position of employment, at which he earned $2,072.55 per month gross wages.

He stated that he resigned because his salary was inadequate to meet his obligations. He then began a landscaping business, which he pursued during the day, and assumed ownership of his family’s delicatessen, which he pursued during the evening. Neither business succeeded. He made no child support payments from June through December, 1995, because he had no income.

By November, 1995, the truck used in his landscaping business had been repossessed, and the landlord had canceled the lease on his delicatessen. Appellant next found work in March, 1996, when he was employed by Dollar Rental Car. He made a child support payment the following month. By this time, the condominium in which he lived was in a foreclosure proceeding.

He filed bankruptcy proceedings under Chapter 13 of the Bankruptcy Code to reorganize his debt, but his plan was rejected by the United States Bankruptcy Court. He lost his job at Dollar Rental Car because of excessive absenteeism and, subsequently, tried to obtain a commercial driver’s license. In September, 1996, he was hired as a waiter for a restaurant in Glen Burnie, which did not open until November. He earned $2 an hour plus tips at the restaurant, and he left that job at the end ³⁹⁶ of the year.

He was evicted from his condominium in November. He paid $60 child support in December. After leaving the restaurant, appellant and a partner began unloading trucks at warehouses, and he earned approximately $150 per week. He made child support payments in January, February, and March, 1997.

Appellant’s partner cut him out of the business in April, 1997. He began employment with Kinko’s in Gaithersburg in June, 1997, earning $8 per hour, and he was so employed at the time of trial. He made support payments after being employed there. Questions Presented Appellant presents the following questions: 1.

Whether a defendant in a criminal contempt case is entitled to trial by jury in circuit court under the constitution and laws of Maryland, whether or not he has a federal constitutional right to trial by jury, and whether the failure of the record in this case to show a knowing and voluntary waiver of that right requires reversal. 2. Whether prior judgments of civil contempt are admissible in a prosecution for criminal contempt. 3. Whether the evidence was sufficient to prove criminal contempt. Discussion 1.

Federal constitutional law provides that a defendant facing imprisonment in excess of 180 days has a right to a trial by jury. Taylor v. Hayes, 418 U.S. 488, 495 , 94 S.Ct. 2697 , 41 L.Ed.2d 897 (1974); Wilkins v. State, 293 Md. 335, 338-39 , 444 A.2d 445 (1982). With respect to criminal contempt, when there is no maximum authorized penalty, the actual sentence determines whether a defendant has a federal constitutional right to a jury trial. Codispoti v. Pennsylvania, 418 U.S. 506, 511-12 , 94 S.Ct. 2687 , 41 L.Ed.2d 912 (1974); Wilkins, 293 Md. at 338-39 , 444 A.2d 445 .

Because appellant was sentenced to 180 days, he concedes that he was not entitled to a ³⁹⁷ jury trial under the Federal Constitution. Appellant argues, however, that a defendant charged with criminal contempt in circuit court is entitled to a jury trial under the State Constitution and other State laws. He contends that, because he did not knowingly and voluntarily waive his right to a jury trial, his conviction should be reversed. While appellant acknowledges a number of Maryland precedents that support the proposition that a criminal contemnor is not entitled to a jury trial unless he is imprisoned for more than six months, see, e.g., Whitaker v. Prince George’s County, 307 Md. 368 , 514 A.2d 4 (1986) and Wilkins, supra, appellant argues that such cases were decided on federal constitutional principles only.

Citing Thompson v. State, 278 Md. 41 , 359 A.2d 203 (1976), appellant first argues that, “where a defendant is charged with a crime in a court of general jurisdiction, [such as the circuit court,] and where no legislative enactment restricts his right to jury trial, ... [the defendant] is entitled to the common law mode of trial, i.e., trial by jury.” Id. at 49 , 359 A.2d 203 . Without further elaboration, appellant indicates that the Court noted an exception to the general rule for summary proceedings. Appellant concludes that, given that there is no statute restricting the right to trial by jury in cases of constructive criminal contempt, and charges of constructive criminal contempt are not subject to summary proceedings under the Maryland Rules, see Rule 15-205 and former Rule P4, defendants charged with constructive criminal contempt in the circuit court are entitled to trial by jury. Thompson did not involve criminal contempt.

Instead, that case was concerned with application of a statute regarding district court jurisdiction, § 4-302 of the Courts & Judicial Proceedings Article, Maryland Code (1974, 1975 Cum.Supp.). The defendant in Thompson was charged with three violations of the motor vehicle laws, one of which was punishable by a fine and imprisonment of up to one year, one of which was punishable by a fine and imprisonment of up to two months, and one of which was punishable by a fine only. Id. at 44 , 359 A.2d 203 . Pursuant to § 4-302, which provides that a defendant may demand a jury trial and have his case removed to ³⁹⁸ the circuit court if he is charged with a crime punishable by imprisonment of more than 90 days, the defendant demanded a jury trial and his case was removed to the circuit court.

While the case was pending in the circuit court, the prosecutor nolle prossed the most serious charge and then argued that the defendant was not entitled to a jury trial on the remaining charges. Id. at 45, 359 A.2d 203 . The circuit court agreed and tried the defendant without a jury. Id.

The Court of Appeals reversed. The Court of Appeals noted that § 4-302 is not a limitation upon the right to jury trial in circuit court but, instead, is a statute dealing with the “circumstances whereby jurisdiction attaches in the circuit courts over offenses ‘otherwise within the District Court’s jurisdiction.’ ” Id. at 47-48, 359 A.2d 203 (quoting CJ § 4-302). Tracing back to early English law, the Court went on to note that, at common law, all crimes, serious or petty, were tried by jury in courts of general jurisdiction. The Court noted that this right was restricted only when authority to try minor crimes was conferred upon justices of the peace, predecessors to the district court.

More specifically, the Court stated that [ujnless an offense was specifically entrusted by statute to the summary jurisdiction of the justices it could not be tried in summary fashion, since the common law was a “stranger” to such proceedings. Id. at 51, 359 A.2d 203 (citing 4 Blackstone, Commentaries, p. 356 (W. Hammond ed. 1890)). The Court stated that, while it may be constitutional to restrict the right to jury trial in those cases involving petty offenses, there is no indication that the legislature intended to restrict such right in those cases tried in the circuit courts, the highest common law courts of record in the State, exercising full common law powers and jurisdiction in criminal cases. Id. at 52-53 , 359 A.2d 203 .

Consequently, a defendant charged with a crime in the circuit court is entitled to the common law mode of trial, trial by jury. Appellant’s reliance upon Thompson is misplaced. As noted above, the Thompson decision was not based upon any pecu ³⁹⁹ liarity of Maryland law, but instead, was based upon the common law, as it developed in England, and subsequently, in this country. At common law, contempt proceedings, whether criminal or civil, constructive or direct, historically have not been tried by jury.

Bloom v. Illinois, 391 U.S. 194, 196 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968); Green v. United States, 356 U.S. 165, 183-85 , 78 S.Ct. 632 , 2 L.Ed.2d 672 (1958); In Re Debs, 158 U.S. 564, 594-96 , 15 S.Ct. 900 , 39 L.Ed. 1092 (1895); Interstate Commerce Commission v. Brimson, 154 U.S. 447, 489 , 14 S.Ct. 1125 , 38 L.Ed. 1047 (1894); Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36-37 , 10 S.Ct. 424 , 33 L.Ed. 801 (1890); Sheets v. City of Hagerstown, 204 Md. 113, 118-19 , 102 A.2d 734 (1954); Hitzelberger v. State, 173 Md. 435, 438-40 , 196 A. 288 (1938); Kelly v. Montebello Park Co., 141 Md. 194, 205 , 118 A. 600 (1922); Ex Parte Maulsby, 13 Md. 625 , 635 (1859). Although the foregoing cases do not expressly distinguish between the various forms of contempt, they clearly include constructive criminal contempt in their discussion of those matters that a court need not refer to a jury. As stated by the United States Supreme Court, the power of a court to make an order carries with it the equal power to punish for disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule.

In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency. ... In Watson v. Williams, 36 Miss. 331, 341 , it was said: “The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could not more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law.

A court without the power ⁴⁰⁰ effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments or decrees against the recusant parties before it, would be a disgrace to the legislation, and a stigma upon the ages which invented it.” In Re Debs, supra, 158 U.S. at 594-96 , 15 S.Ct. 900 (emphasis added). See also Bloom,, 391 U.S. at 196 , 88 S.Ct. 1477 (in case involving constructive criminal contempt, noting lack of common law right to jury trial in contempt cases); Gompers v. United States, 233 U.S. 604, 610-12 , 34 S.Ct. 693 , 58 L.Ed. 1115 (1914) (criticizing such treatment of constructive criminal contempts). Although appellant is correct that the common law mode of trial for crimes has been trial by jury, contempt has not been treated as other crimes. See Green, 356 U.S. at 183-85 , 78 S.Ct. 632 .

Even though contempt is potentially punishable by imprisonment, the common law mode of trial for contempt, whether criminal or civil, has been trial by the court whose order has been violated. Id. The common law rule for the punishment of contempt is actually the converse of the common law rule for the trial of crimes identified in Thompson . Under the line of cases discussed in Thompson , there is a right to jury trial unless abridged by the Legislature.

Under the cases involving contempt, constitutional considerations aside, there is no right to jury trial unless expressly granted by the Legislature. A review of early Maryland authorities demonstrates that Maryland has followed the general common law rule regarding the punishment of contempts. Significantly, chapter 450, § 1 of the 1853 Laws of Maryland expressly provided for the summary punishment 1 of contempts such as the one at issue in this case: ⁴⁰¹ That the power of the several courts of Maryland to issue attachments and inflict summary punishments for con-tempts of court shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transaction, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or command of the said courts. (Emphasis supplied.) This statute did not empower the courts to punish contempts summarily.

Rather, it was merely declaratory of the power, to punish contempts summarily, inherent in the courts under common law. Sheets, 204 Md. at 118-19 , 102 A.2d 734 ; Hitzelberger, 173 Md. at 438-40 , 196 A. 288 ; Kelly, 141 Md. at 205 , 118 A. 600 ; Ex Parte Maulsby, 13 Md. at 635. Thereafter, pursuant to the Acts of 1927, ch. 357, summary proceedings were confined to “direct contempt, alleged to have been committed in the presence of the Court, or so near to the Court as to interrupt its proceedings.” The same Act prescribed a separate procedure in cases of constructive contempts. Significantly, the procedure prescribed for constructive contempts provided the contemnor with an opportunity to show cause why he should not be held in contempt, and provided that such matters be tried before the court without a jury.

The current statute governing con ⁴⁰² tempt, CJ § l-202(a), provides that the courts of the State (district, circuit, and appellate courts) “may exercise the power to punish for contempt of court or to compel compliance with [their] commands in the manner prescribed by the Maryland Rules.... ” A review of those rules reveals that the procedure for trying constructive criminal contempts remained basically unchanged until the adoption of Rule 15-205, effective January 1, 1997. See former Rule P4. The current rule now applies the jury trial provisions of Rule 4-246 to all constructive criminal contempt proceedings. See Rule 15-205(f).

Rule 15 — 205(f) does not provide appellant with a right to jury trial. Assuming that this Rule applies to appellant’s case, 2 we do not believe that it confers a right to jury trial that does not otherwise exist by operation of other law. Rule 15-205(f) merely applies the procedures of Rule 4-246 to constructive criminal contempt proceedings. Rule 4-246 provides in pertinent part that “[i]n the circuit court a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule.... ” (Emphasis added.) By its own clear language, the Rule applies only when, by operation of law, the defendant has a right to jury trial.

Thus, we read Rule 15 — 205(f) to provide merely that any right to jury trial possessed by a criminal contemnor may be waived only in accordance with the provisions of Rule 4-246. 3 Appellant next argues that he had a right to jury trial under the Maryland Declaration of Rights. Citing Kawamura v. State, 299 Md. 276 , 473 A.2d 438 (1984), appellant notes that State Constitutional law provides the right of jury trial to ⁴⁰³ anyone charged with a serious offense as opposed to a petty offense. Appellant states that, under Kawamum, a serious offense for purposes of determining the right to a jury trial is an offense that either historically has been viewed as a serious crime, or that is subject to an infamous punishment. Appellant contends that criminal contempt historically has been viewed as a serious crime, and there is no reason to distinguish it from other serious crimes.

Alternatively, appellant contends that a prison sentence in excess of 90 days is an infamous punishment. Appellant’s initial contention fails for the same reason that his reliance upon Thompson fails. Specifically, criminal contempt historically has not been viewed as a serious crime implicating the constitutional right to trial by jury. In Green, supra, the Supreme Court dealt with application of a federal statute giving the federal district courts the power to punish by fine or imprisonment, at their discretion, certain enumerated classes of contempts.

The petitioners had been cited and tried for constructive criminal contempt and each given prison sentences of five years. 356 U.S. at 167 , 78 S.Ct. 632 . The petitioners argued that proceedings for criminal contempt, if punishable by terms exceeding one year, must be based upon grand jury indictments under the clause of the Fifth Amendment providing such indictments for infamous crimes. Id. at 183 , 78 S.Ct. 632 . They argued that an infamous crime is one punishable by imprisonment in a penitentiary, and imprisonment in a penitentiary can be imposed only if the crime is subject to imprisonment exceeding one year.

Id. They urged that criminal contempts that are subject to such punishment are infamous crimes. Id. The Supreme Court rejected this argument, noting that the historical distinction between serious and petty offenses had not been applied to contempts.

Id. The Supreme Court signaled for the first time, in dicta, that such a distinction may in fact apply to criminal contempts as a matter of federal constitutional right in United States v. Barnett, 376 U.S. 681, 694-95 , 84 S.Ct. 984 , 12 L.Ed.2d 23 , reh. denied, 377 U.S. 973 , 84 S.Ct. 1642 , 12 ⁴⁰⁴ L.Ed.2d 742 (1964). Thereafter, in Cheff v. Schnackenberg, 884 U.S. 373 , 86 S.Ct. 1523 , 16 L.Ed.2d 629 (1966), the Supreme Court held that a six month term of punishment permitted the federal trial court to treat the prosecution of a criminal contempt as a prosecution for a petty offense, and accordingly, the contemnor was not entitled to a jury trial. The Court went on to declare, however, that “sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” 384 U.S. at 380 , 86 S.Ct. 1523 .

It was not until Bloom v. Illinois, swpra, that the Supreme Court, for the first time, reversed convictions for criminal contempt wherein sentences of two years had been imposed. The Court held that the original rationale for trying contempt without a jury, preservation of the power and integrity of the courts, could no longer justify a denial of a constitutional right to jury trial in those cases wherein serious punishment was imposed for the contempt. 391 U.S. at 208 , 88 S.Ct. 1477 . Under federal constitutional law, serious criminal contempt warranting the right to a jury trial is contempt that is punishable by imprisonment of greater than six months. 4 Taylor, 418 U. S. at 488, 94 S.Ct. 2697 ; Codispoti, 418 U.S. at 512 , 94