Cameron v. State

ALPERT, Judge. Lest we be misunderstood by our ultimate holding, we declare at the outset that an intoxicated litigant who disrupts the proceedings of the court by contumacious or stupefied conduct may be held in contempt of court. Appellant, John Jeffrey Cameron, appeals two judgments entered by the Circuit Court for Allegany County, the first finding him in contempt for appearing in court in an ⁶⁰⁴ intoxicated condition and the second denying his motion to dismiss on the basis of double jeopardy. Appellant asks: I. Did the trial court err in finding him in contempt of court?

II

Did the trial court err in striking the judgment based on a guilty plea?

III

Did the trial court err in permitting evidence of a chemical test in a criminal contempt proceeding? TV. Did the trial court err in denying his motion to dismiss based on double jeopardy? We answer numbers I, II, and IV in the affirmative and therefore reverse; we need not address issue III.

Facts and Proceedings On July 16, 1993, appellant, John Jeffrey Cameron, was stopped by Department of Natural Resources officers and charged by citation with driving while intoxicated, ■ a charge subsequently amended to include a charge of driving under the influence. On or about December 20, 1993, appellant appeared before the Circuit Court for Allegany County, at which time- he was found to be in an apparently intoxicated condition. At that time, the court ordered appellant to be held without bond pending a determination of whether detoxification was necessary, and the next day, the court ordered that Cameron be released from the sheriffs custody on his own recognizance pending completion of his alcohol treatment. Appellant was then subpoenaed to appear in court on March 16, 1994, at 9 a.m. ■ On March 16, appellant returned to court as scheduled and, pursuant to a plea agreement, entered a plea of guilty to driving under the influence.

Before accepting the plea, the court questioned Cameron on his present sobriety, obtaining assurances from Cameron that he was not currently under the influence of alcohol. The court asked other questions of Cameron to determine whether he entered the plea voluntarily, understood all of his rights, and comprehended the conse ⁶⁰⁵ quences of his plea. Then, the court accepted the plea as “freely and intelligently made.” Appellant was sentenced to sixty days, suspended. He was placed on probation for three years under the supervision of the Drinking Driver Monitor Program.

As a condition of the probation, appellant was ordered to proceed to the Health Department that day. Additionally, he was ordered to abstain from the consumption of alcohol. Pursuant to the court’s order, Cameron proceeded to the Health Department following the plea and sentencing proceeding. When Cameron appeared at the Department at approximately 10:20 a.m., the Supervisor for the Drinking Driver Monitor Program, Randall Blough, “detected a strong odor of alcohol.” Mr. Blough proceeded to administer a passive breath test and a portable breathalyzer test, the passive breath test yielding “a point two oh [sic]” reading.

The parties then returned to court. Cameron testified on his own behalf before the trial judge, who first advised Cameron of his right not to testify. BY THE COURT: Mr. Malone, before you ask Mr. Cameron any questions, he ought to understand that there ... there lies in all of this the potential for a contempt citation. MR.

MALONE: I understand, sir. BY THE COURT: And that in that regard he need not testify, if he chooses not to. But if he does, he must do so truthfully, respond to the State’s Attorney’s questions, and potentially respond to questions that I would put to him. MR.

MALONE: I understand sir. BY THE COURT: Do you understand that, Mr. Cameron? A: Yes sir. * * * if; * BY THE COURT: You understand if I find ... That I can under these facts ... could find you to be in contempt of court, and could sentence you to as much as five months ⁶⁰⁶ and twenty-nine days in the County Jail?

Do you understand that? Q: Do you understand that Mr. Cameron? BY THE COURT: Do you understand that? A: Yes sir.

BY THE COURT: And knowing all that, is it still your intention to testify? A: Yes sir. BY THE COURT: Very well. In his testimony, Cameron indicated to the court that he was an alcoholic, but he had not had anything to drink since twelve noon the prior day.

The judge, finding that Cameron was presumptively intoxicated in the earlier proceeding, struck the plea entered by Cameron because he did not believe appellant had been competent to make a plea. Because the plea was stricken, so was the sentence. The court further found appellant in contempt for appearing before the court in an intoxicated condition. Sanctions for the contempt charge were deferred for a later time when Cameron was sober, and Cameron was sent to jail to ensure his sobriety for his next appearance.

On March 28, 1994, appellant appeared again before the circuit court, at which time he declined to enter a plea and a new trial date was set. Appellant noted a timely appeal of the contempt charge on March 24, 1994. On March 29, 1994, appellant presented a motion to dismiss the case against him on the basis that jeopardy had attached due to the acceptance of the plea and subsequent sentencing, and therefore, further trial on the matter was barred. The court denied appellant’s motion to dismiss on April 25, 1994.

This appeal followed. I. The Contempt Charge Appellant argues that by finding him in contempt of court, the lower court erred in two ways. First, appellant asserts that the judge found him in contempt because he was an alcoholic, although his behavior was exemplary, and he did nothing to bring disrespect or disregard to the authority and ⁶⁰⁷ administration of the law. Second, appellant argues that no contempt order was filed in this case as required by Maryland Rule P3, and failure to file an order mandates reversal.

Appellee contends that the court did not find Cameron in contempt because he was an alcoholic; rather, it found that by appearing in court for the second time in an intoxicated condition, Cameron interfered with and obstructed the court’s discharge of its duties and, therefore, his behavior was contemptible. Furthermore, appellee argues that no reversal of the finding is required because the courtroom proceedings are transcribed and the trial court dictated its findings to the court reporter, thereby satisfying the “written order” requirement of the rule. We agree with appellant that his behavior did not constitute contempt and, therefore, we need not address appellant’s charge that the contempt order was not properly entered. There are two classes of contempt recognized by law: criminal and civil.

Civil contempt occurs when someone fails to do something ordered by a court in a civil action for the benefit of an opposing party. See 17 C.J.S. Contempt § 6 (1963); Baker v. Baker, 58 Md.App. 619, 622 , 473 A.2d 1325 (1984), McDaniel v. McDaniel, 256 Md. 684, 687 , 262 A.2d 52 (1970). Criminal contempt, on the other hand, is behavior directed against the dignity and authority of the court that tends to bring the court into disrepute or disrespect. See 17 C.J.S. Contempt § 5(1) (1963); Baker, 58 Md.App. at 622 , 473 A.2d 1325 ; McDaniel, 256 Md. at 687 , 262 A.2d 52 .

In the case sub judice, Cameron was charged with criminal com tempt, not civil contempt. There are two classes of criminal contempt: direct and constructive. Maryland Rule PI defines both types of contempt. “Direct contempt” is “a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Md.Rule Pl(a). “Constructive contempt” is “a contempt which was not committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Md.Rule Pl(b). Because Cameron’s behavior occurred in the ⁶⁰⁸ courtroom, he was charged with direct contempt rather than constructive contempt.

Contempt has been defined more specifically in Betz v. State, 99 Md.App. 60, 65 , 635 A.2d 77 (1994), wherein this court explained: ‘[I]n a narrow sense, a contempt has been defined as á despising of the authority, justice, or dignity of the court; in a more general sense, a person whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during litigation, or otherwise tends to impede, embarrass, or obstruct the court in the discharge of its duties, has committed a contempt.’ (quoting Goldsborough v. State, 12 Md.App. 346, 355 , 278 A.2d 623 (1971)). Today, contempts- are classified as civil or criminal and at least in theory either of these may be direct or constructive. The various categories are not mutually exclusive and in fact the nomenclature assigned to a contempt involves both classes.... Historically, criminal contempts were positive acts which offended the dignity or process of the court.

Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders. State v. Roll and Scholl, 267 Md. 714, 727 , 298 A.2d 867 (1973). In Giant of Maryland v. State’s Attorney for Prince George’s Co., 274 Md. 158, 176 , 334 A.2d 107 (1975), the Court of Appeals explained that when the contempt is charged as criminal in nature, and the conduct is not shown to be plainly contemptuous on its face, proof beyond a reasonable doubt that the alleged contemnor possessed a contumacious intent is a necessary ingredient for an adjudication of guilt. Thus, in order to find someone guilty of a direct, criminal • contempt, the behavior must be contemptuous on its face or it must be shown that the person possessed contumacious intent. ⁶⁰⁹ We have found no cases, nor are any cited by the parties, in which the court has found a defendant, who is admittedly an alcoholic, in contempt of court merely for appearing in court in an intoxicated condition.

Our research reveals a case wherein the Supreme Court of California upheld a lower court ruling that an attorney who appears at a client’s preliminary hearing under the influence of alcohol and attempts to conduct a defense while intoxicated shows disrespect to the court and is in contempt. Ridge v. State Bar of California, 47 Cal.3d 952 , 254 Cal.Rptr. 803, 805 , 766 P.2d 569, 571 (1989). That holding, however, was based in large part upon the fact that attorneys are officers of the court and “misconduct by an attorney in open court tends to bring the legal profession and the administration of justice into disrepute.” In re Dibble, 257 Or. 120 , 478 P.2d 384, 386 (1970). Furthermore, the attorney in Ridge was demonstrably intoxicated, acting aggressively toward counsel and witnesses and exuding an odor of alcohol.

Ridge, 254 Cal.Rptr. at 805 , 766 P.2d at 571 . In People v. Bonney, 251 Ill.App.3d 921 , 191 Ill.Dec. 501 , 503, 623 N.E.2d 1387, 1389 (1993), the defendant had been found in indirect contempt of court for appearing in court for a prior appearance while under the influence of alcohol. This finding was reversed on appeal, however, because the State did not prove contempt “beyond a reasonable doubt” as required by the law; rather, it only satisfied the “preponderance of the evidence” standard. Id., 191 Ill.Dec. at 504, 623 N.E.2d at 1390 .

The court seemingly indicated that the defendant could have been held in contempt for appearing in court intoxicated had the state satisfied the “beyond a reasonable doubt” standard. The court made note of the fact that the defendant in Bonney showed signs of intoxication during his court appearance. Id., at 502, 523 N.E.2d at 1388. The probation officer who had accompanied Mr. Bonney to court the day in question testified that defendant smelled of alcohol, spoke very quickly, was very agitated, and did not stop speaking when the judge directed him to do so.

Id. ⁶¹⁰ In the case sub judice, Cameron’s behavior during the plea agreement hearing and sentencing was not contemptuous on its face. He was in no way disruptive of the proceedings; he testified on his own behalf and articulately responded to all questions asked of him. He was not rebellious or insubordinate, nor was he wilfully disobedient or openly disrespectful. There is also no evidence that Cameron possessed contumacious intent. “Contumacious conduct” is defined as “[w]ilfully stubborn and disobedient conduct.” Black’s Law Dictionary, 5th ed. at 298.

Even appellee concedes that Cameron appeared docile and compliant in court. In fact, when Cameron’s attorney pointed out that there was no showing of wilful intent on Cameron’s part and even though his passive blood test was high, he acted appropriately in every way, the trial judge agreed, and indicated that Cameron was “probably in a fairly constant state of intoxication as a result of tolerance.” Furthermore, at the contempt hearing the judge apparently found that Cameron was not too intoxicated to waive his testimonial rights, because he advised Cameron of his rights and accepted his waiver and subsequent testimony. It is crucial to note that it is unclear whether Cameron was even intoxicated at the plea proceeding. The trial judge assumed, based on the results • of a passive breath test 1 ⁶¹¹ administered an hour or so after the proceedings, that Cameron was intoxicated at the earlier proceeding. 2 The record shows that Cameron claimed to have imbibed at noon the previous day, but he testified he was not under the influence of alcohol at the time of the plea proceeding.

In addition, Cameron claims he did not drink anything between the plea proceeding and his appearance at the Health Department. We have no way of knowing when he actually consumed the alcohol that registered on the passive breath test, let alone whether the passive breath test was even accurate. 3 Even ⁶¹² assuming the results of the passive breath test were correct, we cannot assume the alcohol that was detected was consumed prior to the plea proceeding. While we can understand the frustration of the able and experienced trial judge, given Cameron’s docile and responsive conduct in court, it was error for the trial judge to hold him in contempt. His conduct was not contemptuous on its face nor was it wilfully stubborn or disobedient.

Thus, the contempt finding must be reversed.

II

Striking the Judgment Cameron argues next that the trial court erred in striking the judgment that was imposed based on his guilty plea. First, appellant contends that the'judge had no authority to strike the judgment, and second, he asserts that there was no factual basis for doing so. Conversely, appellee claims that it was incumbent on the judge to strike the judgment once he discovered that Cameron was incompetent to tender a knowing and voluntary plea. While we do not agree with all ⁶¹³ of appellant’s reasoning, we do agree that in this case the circuit court erred in striking the judgment.

Appellant is incorrect in arguing that a judge can never strike a judgment absent a motion by defendant to withdraw a plea. Maryland courts have recognized that there are occasions when a sentence must be vacated. Flaherty v. State, 322 Md. 356, 365 , 587 A.2d 522 (1991) (quoting Rojas v. State, 52 Md.App. 440 , 450 A.2d 490 (1982) (finding that when a material term of a sentence based on a plea agreement is unenforceable, the appropriate remedy is to vacate the entire sentence and corresponding plea agreement)). Appellant is correct, however, when he says that there is no factual basis for the judge’s striking of the plea and judgment in this case.

Maryland law requires that guilty pleas be entered voluntarily: The court may accept a plea of guilty only after it determines, upon an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, that (1) the defendant is pleading voluntarily, with understanding of the nature of the charge and the consequences of the plea.... Md.Rule 4-242(e) (1994). Upon exhaustive research, we have found no cases in Maryland or in other jurisdictions that presume that a guilty plea made by an allegedly intoxicated defendant was involuntarily made. Although not precisely on point, there are cases in other jurisdictions in which defendants have attempted to withdraw their guilty pleas by claiming intoxication at the time the pleas were entered.

See, e.g., United States v. Teller, 762 F.2d 569 (7th Cir.1985); People v. Torra, 191 A.D.2d 738 , 594 N.Y.S.2d 419 , appeal denied, 81 N.Y.2d 1021 , 600 N.Y.S.2d 209 , 616 N.E.2d 866