King v. State

GREENE, J. We are asked to consider whether a trial judge who elects not to summarily punish an attorney for direct contempt, pursuant to Maryland Rule 15-203, and instead issues a Show Cause Order and assigns a special prosecutor to prosecute the attorney for contempt, pursuant to Maryland Rule 15-204, may vacate the order initiating contempt proceedings and convert to contempt proceedings that are summary in nature. ⁴²² We conclude that the trial judge erred and should have conducted proceedings consistent with Maryland Rules 15-204 and 15-205. I. Factual and Procedural Background Petitioner, Mamitta King (“Ms. King”), was admitted to the Maryland Bar in December 2001, and, on May 1, 2006, was elected to the Town Council for the Town of Capitol Heights, Maryland. On June 7, 2006, Ms. King entered her appearance on behalf of Shawn Marcus Wooden in a criminal case in the Circuit Court for Charles County. Ms. King was notified by the Assignment Office of that court that Mr. Wooden’s case was scheduled for trial on June 27, 2006.

On June 27, the trial judge called the case and, although Mr. Wooden was present, Ms. King was not. The Assistant State’s Attorney, Benjamin I. Evan, offered the following regarding Ms. King’s whereabouts: [STATE’S ATTORNEY EVAN]: That was ... yes, Your Honor. I spoke with Ms. King approximately ... well, we’ve spoken about this case a number of times. About a week ago I received a call from Ms. King.

She indicated to me she was going to request a continuance. She was going to be away on legislative duties. At that point---- With a jury panel waiting across the hallway, the trial judge asked his staff if they had any information regarding Ms. King’s whereabouts: [THE COURT]: Um, hum. Perhaps my staff can shed some light.

Mrs. Jones? [MRS. JONES]: She indicated that she is in Ocean City. [THE COURT]: Oh. [MRS. JONES]: In a legislative conference. [THE COURT]: And, what legislature is she a member of, to your knowledge? ⁴²³ [MRS. JONES]: She is council [wo]man for the city of Capitol Heights, according to this.

The Assistant State’s Attorney added the following: [STATE’S ATTORNEY EVAN]: Well, Your Honor, as far as the State is concerned, we would place in [sic] on the stet docket. That’s the State’s interest in this case. Beyond that, that if the Court feels it can’t take the stet because of that, we’ll have to g o see Judge N alley and have the case reset. Displeased with proceeding without Ms. King, the court added the following: [THE COURT]: And, even though it sounds like a very favorable disposition ... this is an old case in notice ...

I am loathe to sever the attorney client relationship merely for the fact of moving a case. So why don’t we take it up to Judge Nalley and then you can come back and tell me what happened. And, I will take the appropriate action dealing with someone who is not here. Whereupon the proceeding was continued before the Honorable Robert C. Nalley.

Judge Nalley, in deciding whether to reschedule the matter said in relevant part: [JUDGE NALLEY]: Okay ... I just spoke to [the trial judge’s] aide who told me that [his] position is that counsel needs to be present for that to ... for the Court to be party to that. I don’t disagree. There is not in this file any ... any request of the Court for legislative continuance.

I see from the record and [the trial judge’s] aid, Ms. Jones, has confirmed that this date was cleared with the assignment office for this proceeding. I noticed that Marnitta King’s appearance came in here on June the 7th. And, I reiterate there has been no request to the Court to reschedule this. One would think that as of June the 7th ... that’s more than three weeks ago ... someone would have known about this kind of conference.

I am forced, I suppose, to conclude that there is good cause in the legal, but no other sense, to reschedule this matter. I don’t know what else to do in ⁴²⁴ light of this set of circumstances. So, I invite the State’s Attorney to get a new date from the assignment office. After Judge Nalley concluded that there was good cause to reschedule the matter, the proceeding, nonetheless, continued in front of the trial judge.

Although Ms. King’s precise whereabouts were, at that time, unknown, Mr. Wooden wished to proceed without an attorney, and instead represented himself because he considered the State’s offer of placing the case on the stet docket to be a favorable one. The court was hesitant to go forward without Ms. King; however, the court eventually accepted a waiver of Mr. Wooden’s right to an attorney and placed the charges against Mr. Wooden on the stet docket. At the conclusion of the matter, the court addressed Ms. King’s failure to appear. The court said: [THE COURT]: Okay.

We’ll make ... mark that disposition. Now, we have another matter in this case. Mr. Zafiropulos? [ATTORNEY ZAFIROPULOS]: Yes Judge? [THE COURT]: I’m going to appoint you special prosecutor. I’m issuing a contempt show cause for Ms. King.

The trial judge issued a Show Cause Order 1 on June 29, 2006, and docketed the contempt proceeding as a separate ⁴²⁶ proceeding, Criminal 06-426, State v. Marnitta King. Subsequently, on August 22, 2006, the court held a hearing on the Show Cause Order. The following colloquy between special prosecutor, Mr. Zafiropulos, defense counsel for Ms. King, Mr. Jones, and the court, details the court’s attempt to determine the proper procedure the court should follow: [MR. ZAFIROPULOS]: If the Court intends to act that way, summarily, then my role is limited.

However, I will state this for the record: If the Court does not intend to act summarily, then I want to move to continue the case ... [a]nd to be quite honest with you, if it’s going to be a full blown jury trial, then I’m going to ask the Court to send this matter into the assignment office, because I don’t believe under the case law that you, Judge, and take no offense from this, but could be [sic] the presiding judge in a jury trial. [THE COURT]: Not at the jury trial, I would be a witness. [MR. ZAFIROPULOS]: But be that as it may, you know, I leave it up to the Court as to whether it’s going to proceed summarily or not. [THE COURT]: Mr. Jones? [MR. JONES]: My first question would be, given the fact that my client was put on notice of 15-204 and 15-205, I don’t believe the Court can summarily go forward, because— [THE COURT]: Well, I disagree. [MR. JONES]: And I just— [THE COURT]: She’s not entitled to it, but, you know, as a courtesy, I could have just imposed sentence [in] absentia. [MR.

JONES]: Had she been put on notice of [sic] by the Court in its order [THE COURT]: Um-hmm. ⁴²⁷ [MR. JONES]: And by the document, the summons, is 204 and 205. And 204 specifically states in any proceeding involving a direct attempt by which the Court determines not to impose sanctions summarily, the judge promptly after the conduct shall issue a written order specifying the evidentiary hearing. But it says should the judge not intend.

So, she’s been put on notice by the Court’s documents, its order and by which she was served, and that the Court does not intend to proceed summarily. And I would think, procedurally, it would be defective, or in my opinion may be improper for the Court to say, I changed my mind, now I’m going to proceed summarily, when she— [THE COURT]: She is not entitled as a matter of right to have a hearing under the Murphy case. [MR. JONES]: No, I agree with that; however, by the same token, if a Court issues an order telling the individual— [THE COURT]: Then all I have to do is vacate the order. Right? [MR.

JONES]: And the Court proceed—if the Court’s intent to proceed in that matter, that’s fine; however, we would totally object to that and take that— [THE COURT]: Your objection is noted, overruled. The court then granted the State’s request that the court take judicial notice of the court file in the underlying criminal case, State v. Wooden, case number K 04-710. Thereafter, the court found Ms. King in direct criminal contempt of court. The court then allowed Ms. King to testify.

Ms. King testified that she was elected as a council member in the town of Capitol Heights on May 1, 2006. After entering her appearance on behalf of Mr. Wooden, Ms. King soon realized that the trial date conflicted with a legislative conference in Ocean City 2 . She further testified that she drafted a motion to ⁴²⁸ postpone the trial date and contacted the Assistant State’s Attorney assigned to the case. Ms. King stated that she first spoke to the prosecutor two weeks before the trial date and that she was informed, at that time, that the State was considering a stet.

In light of the proposed disposition, Ms. King elected not to file for a continuance. According to her testimony, she visited Mr. Wooden in jail to relay the State’s offer. Mr. Wooden indicated that he was interested in accepting the stet, and Ms. King then attempted to find a “stand-in” attorney to cover the court date for her. One week prior to trial, Ms. King called the prosecutor and told him that she had another attorney that was willing to stand in her place and accept the State’s offer of placing the case on the stet docket.

Ms. King attended the conference in Ocean City. According to her testimony, on June 26, she learned that there was a storm nearing Prince George’s County, and she contacted the court that afternoon. At that time she discovered that the court was attempting to contact her to determine whether the Wooden case would require a jury. Ms. King further testified that she was unfamiliar with the procedures of the Circuit Court for Charles County and did not understand that it was her responsibility to notify the court whether a jury was needed.

The following morning, Ms. King was notified that the storm was causing flooding in Prince George’s County, and that because of the weather conditions, her stand-in counsel would not be able to get to the Circuit Court for Charles County. Ms. King testified that she called the court the morning of June 27, leaving a voice mail message informing the court that she would not be able to attend the proceeding because of “an emergency session with the town, because of [the] flooding.” At the conclusion of Ms. King’s testimony, the court heard additional testimony from the Assistant State’s Attorney assigned to the Wooden case. ⁴²⁹ At the close of evidence, the court stated that it did not find Ms. King to be a credible witness. The court concluded that Ms. King “deliberately, intentionally, declined to show up,” and found her in direct criminal contempt. The court imposed a fine of $2,500 and stated that $480 of the fine would be used to defray the cost of the jury.

The court also placed Ms. King on unsupervised probation for a period of two years, subject to the following conditions: obey all laws, pay the fine by February 21, 2007, and within one year, complete the MICPEL program dealing with professional conduct. The court offered Ms. King probation before judgment “under section 6-220 of the Criminal Procedure Article,” which Ms. King rejected in order to preserve her right to appeal. Thereafter, Ms. King filed a timely appeal to the Court of Special Appeals. On February 2, 2007, while the appeal was pending in the intermediate appellate court, this Court issued a writ of certiorari on its own initiative.

King v. State, 397 Md. 107 , 916 A.2d 256 (2007).

II

Standard of Review In Johnson v. State, 360 Md. 250 , 757 A.2d 796 (2000), we stated that: With respect to the interpretation of the Maryland Rules, ... [t]he canons and principles which we follow in construing statutes apply equally to an interpretation of our rules. In order to effectuate the purpose and objectives of the rule, we look to its plain text. To prevent illogical or nonsensical interpretations of a rule, we analyze the rule in its entirety, rather than independently construing its subparts. If the words of the rule are plain and unambiguous, our inquiry ordinarily ceases and we need not venture outside the text of the rule.

The venerable plain meaning principle, central to our analysis, does not, however, mandate exclusion of other persuasive sources that lie outside the text of the rule. We have often noted that looking to relevant case law and appropri ⁴³⁰ ate secondary authority enables us to place the rule in question in the proper context. Johnson, 360 Md. at 264-65 , 757 A.2d at 804 (citations and quotations omitted).

III

Discussion In this case, the State contends that “King’s actions amounted to a direct criminal contempt for which King could be summarily sanctioned.” The State argues that “it is the contemptuous act, not the form of the proceedings, which determines whether the contempt is direct or constructive.” The State also argues that the court “could not impose sanctions on King on June 27, because King was not present in court” and “[t]hat the court deferred imposition of the sentence to a later date—and provided King an opportunity to provide evidence in mitigation—did not alter the nature of the offense.” The State posits that “the record shows [the court] complied with the requirements of Rule 15-204” because “[t]he court issued a Show Cause Order two days after finding King in contempt of court.” Lastly, the State points out that the instant case is distinguishable from Smith v. State, 382 Md. 329 , 855 A.2d 339 (2004), because “the court here expressly followed all of the procedures set forth in ... Rule 15-205” and therefore Marnitta King suffered no prejudice. Ms. King concedes that “an attorney’s failure to appear as scheduled for a trial, may constitute a direct contempt of court that the court may summarily adjudicate.” According to Ms. King, “[t]he court in the instant case elected not to impose sanctions summarily and instead issued a Show Cause Order indicating that it was proceeding pursuant to Maryland Rules 15-204 and 15-205.” Ms. King’s argument follows that, after deciding not to proceed summarily and instead issuing a Show Cause Order and appointing a special prosecutor, the court was bound to follow the procedures proscribed in Rules 15-204 and 15-205. Ms. King posits that the court’s later decision to proceed summarily was, therefore, improper.

Lastly, ⁴³¹ Ms. King contends that she was entitled to a full jury trial as well as an impartial judge. Contempt proceedings are “[o]ne weapon in the court’s arsenal [,] useful in defending its dignity.” State v. Roll and Scholl, 267 Md. 714, 717 , 298 A.2d 867, 870 (1973). As we noted in Roll and Scholl , [t]he history of contempt power is very old with roots stretching back to the early English monarchs and the common law. The power began as a means of assuring the efficiency and dignity of the sovereign, but it soon spread to protect representatives of the king.

The contempt power of the courts had a similar origin in that the lord chancellor’s authority was derived from the king. But, as the courts became more independent of the crown and their power increased, the authority to punish for contempt was carried with them. In time, it was so established that the power was considered inherent in the courts. 267 Md. at 726-27 , 298 A.2d at 875 . Contempt proceedings in Maryland are now governed by the Maryland Rules.

See Maryland Rules §§ 15-201 through 15-208. There exist two types of contempt: direct and constructive. A “ ‘[djirect contempt’ means a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” Md. R. 15-202(b). See also Smith, 382 Md. at 338 , 855 A.2d at 344 .

Constructive contempt is “any contempt other than a direct contempt.” Md. R. 15-202(a). See also Smith, 382 Md. at 338 , 855 A.2d at 344 ; In re Lee, 170 Md. 43, 47 , 183 A. 560, 562 , cert. denied 298 U.S. 680 , 56 S.Ct. 947 , 80 L.Ed. 1400 (1936) (“Indirect or constructive contempts are those which do not occur in the presence of the court, or near it, ... but at some other place out of the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning of the court.”); Dorsey v. State, 356 Md. 324, 344 , 739 A.2d 41, 52 (1999) (noting that constructive criminal contempt proceedings are treated “like other ... ⁴³² actions with regard to the initiation of prosecution, waiver of counsel, waiver of jury trial, and bail”). Both direct and constructive contempt proceedings can be either civil or criminal in nature. “Civil contempt proceedings [are] ‘intended to preserve and enforce the right of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties.’ ” Archer v. State, 383 Md. 329, 345 , 859 A.2d 210, 219-20 (2004) (quoting Roll and Scholl, 267 Md. at 728 , 298 A.2d at 876 ). On the other hand, “[c]riminal contempt ... constitute^] ‘positive acts which offend the dignity or process of the court.

Holding an offending party in contempt of court [is] designed to vindicate the authority and power of the court and punish disobedience to its order.’ ” Archer, 383 Md. at 345 , 859 A.2d at 220 (quoting Roll and Scholl, 267 Md. at 727 , 298 A.2d at 875 ). Consistently we have said that “[t]he primary purpose of punishment for criminal contempt, whether direct or constructive is vindication of public authority, embodied in the court and represented by the judge, by punishing the contemnor for past misconduct, not to compel future compliance or to remedy the harm.” Ashford v. State, 358 Md. 552, 563 , 750 A.2d 35, 41 (2000) (citations omitted). Nonetheless, “only that conduct that is willful or intentional may constitute a criminal contempt.” Ashford, 358 Md. at 563 , 750 A.2d at 41 (citations omitted). Direct contempt may be summarily punished.

State v. Roll and Scholl, 267 Md. at 732 , 298 A.2d at 878 ; see Md. R. 15-203. This Court has said that “[t]he term ‘summary’ generally connotes an immediate action undertaken without following the usual formal procedures.” Smith v. State, 394 Md. 184, 215 , 905 A.2d 315, 333 (2006) (concluding that the proceedings conducted in the case, giving rise to charges of contempt, were not summary in nature because it lacked the hallmarks of summary proceedings. In the resolution of the underlying case, the court conducted an independently docketed proceeding in which the contemnor’s attorney was permitted to present a mitigating argument and also the ⁴³³ court solicited sentencing recommendations from the State and the contemnor’s counsel.). A summary contempt proceeding is considered the exceptional case.

State v. Roll and Scholl, 267 Md. at 733 , 298 A.2d at 878 . In those cases where the conduct of the alleged contemnor poses an open, serious threat to orderly procedure that instant, and summary punishment, as distinguished from due and deliberate procedures, is necessary, direct contempt procedures are designed to fill the need for immediate vindication of the dignity of the court. See Harris v. United States, 382 U.S. 162 , 86 S.Ct. 352 , 15 L.Ed.2d 240 (1965). In Kandel v. State, 252 Md. 668, 672 , 250 A.2d 853, 855 (1969), we held that an attorney’s failure to punctually attend court is at least misbehavior on the part of an officer of the court and may amount to, and be punishable as, contempt.

Further, we held that such a contempt can be punished summarily. Id. In the case sub judice, both parties agree that because of Ms. King’s absence, the court could have found that Ms. King committed a direct criminal contempt and imposed sanctions summarily pursuant to Md. Rule 15-203. 3 See Ash- ⁴³⁴ ford, 358 Md. at 564 , 750 A.2d at 41 (2000) (noting that “[a] direct contempt, such as failure to appear, or disruptive conduct in the courtroom, may be summarily punished after such hearing as the presiding judge may deem just and necessary”) (citations omitted). Specifically, Ms. King’s failure to attend court on June 27, 2006, as well as her failure to notify the Assignment Office that jurors were not needed, resulted in an unnecessary disruption of the court’s business and, constituted a contempt of court, provided her actions were not justified and wilful.

The state contends “[t]hat the court [chose to] defer[ ] imposition of the sentence to a later date—and provided King an opportunity to provide evidence in mitigation” and that “[t]he only basis for further proceedings was to provide King ⁴³⁵ an opportunity to provide evidence in mitigation.” Similarly, the State points out that “[t]he court issued a Show Cause Order two days after finding King in contempt of court.” (Emphasis added.) This argument implies that the trial judge initiated contempt proceedings on June 27, 2006, and found Ms. King in contempt and intended to impose sanctions summarily, at a later date. That, however, did not occur. If that had happened, consistent with the requirements of Rule 15-203, the trial judge was required to “summarily find[ ] and announce[ ] on the record that direct contempt ha[d] been committed,” then defer imposition of sanctions until the close of the proceedings during which the contempt had been committed. See Md. R. 15-503(a).

As noted supra, the court did not announce on the record that a direct contempt had been committed. At no time on June 27 did the judge indicate that he was proceeding under the requirements of Rule 15-203. To the contrary, to the extent that the judge addressed Ms. King’s failure to appear, he said the following: [THE COURT]: Okay. We’ll make ... mark that disposition.

Now, we have another matter in this case. Mr. Zafiropulos? [ATTORNEY ZAFIROPULOS]: Yes Judge? [THE COURT]: I’m going to appoint you special prosecutor. I’m issuing a contempt show cause for Ms. King. Furthermore, the language contained in the Show Cause Order, specifically states that the Order was being issued “[p]ursuant to Maryland Rules 15-204 an d 15-205.” By reference to Rules 15-204 and 205, the court indicated that it was going to hold a proceeding for constructive criminal contempt; it was not until that proceeding began that the court chose to proceed summarily.

Consistent with the procedure contemplated by the Show Cause Order, the trial judge separately docketed the new proceeding, as Criminal case No. 06-426 and designated a special prosecutor to try the case. We conclude, therefore, that the judge’s actions were consistent with the requirements of Rule 15-204, not the requirements of Rule 15-203. ⁴³⁶ As noted supra, the court initially chose not to summarily impose sanctions as proscribed by Rule 15-203. Moreover, because he did not bring Ms. King before him forthwith for summary contempt proceedings, or adjudicate her in contempt as part of the underlying case, the court could not summarily sanction her after initiating a new proceeding. By choosing not to initiate summary proceedings, the court elected to follow Rule 15-204. 4 This rule “covers [those] situations in which a direct contempt is not summarily sanctioned.” Hermina v. Baltimore Life Ins.

Co., 128 Md.App. 568, 585 , 739 A.2d 893, 902 (1999). The State contends, and the record supports the conclusion, that the court relied on a decision of the Court of Special Appeals, Murphy v. State, 46 Md.App. 138 , 416 A.2d 748 (1980), as a guidepost in adjudicating Ms. King in contempt of court. The court maintained that, pursuant to Murphy , it could permissibly issue a Show Cause Order, separately docket that proceeding, assign a special prosecutor and, at a later date, proceed summarily against Ms. King. The factual circumstances in Murphy are similar to those in the instant case.

In Murphy , an attorney “was charged with direct contempt of court in the Circuit Court for Dorchester County for failure to appear in that court as defense counsel in two criminal trials scheduled for September 6, 1979.” Murphy, 46 Md.App. at 139 , 416 A.2d at 749 . Because the attorney failed to appear, the Circuit Court issued a Show Cause Order on September 14, 1979, ordering Mr. Murphy to “show cause why he should not be held in contempt of court.” Murphy, 46 Md.App. at 141 , 416 A.2d at 751 . “In the Order, [the Circuit Court] stated that although a direct contempt may ⁴³⁷ be summarily punished pursuant to Md. Rule P 3(a), [the trial judge] wished ‘to preserve [Mr. Murphy’s] right to due process and to therefore give him an opportunity to show cause why he should not be held in contempt’ [of court].” Murphy, 46 Md.App. at 141 , 416 A.2d at 751 . Following a hearing, the Circuit Court found Mr. Murphy in contempt. On appeal, Murphy argued, inter alia, “that his behavior was, at most, a constructive contempt that must be proceeded against within the strictures of Md. Rule P4.” Murphy, 46 Md.App. at 145 , 416 A.2d at 752 .

The intermediate appellate court rejected Murphy’s argument, holding that “an attorney’s unjustified failure to appear or to give reasonable notice thereof is a contempt committed in the presence of the court and, therefore punishable summarily under Md. Rule P3.” Murphy, 46 Md.App. at 149 , 416 A.2d at 755 . In addition, the intermediate appellate court reasoned that “[in] jurisdictions [that] have held that the absence of an attorney from court does not occur ‘within the presence of the court[,]’ [was because those] courts were chiefly concerned that the contemnor be afforded due process in the form of an opportunity to explain his absence.” Murphy, 46 Md.App. at 149-50 , 416 A.2d at 755 . The Court of Special appeals further explained that Murphy “was given sufficient time to prepare his defense and an opportunity to present it,” even though the court was not required to do so in a case of direct contempt. Murphy, 46 Md.App. at 150 , 416 A.2d at 755 .

While the factual circumstances in Murphy are similar to the instant case, that case was decided pursuant to former Rules P3 and P4. Ms. King concedes that her actions could have been punished as a direct contempt. The issue before us, however, is whether the trial judge could summarily sanction Ms. King under the current Rules of Procedure because as Murphy pointed out “the mere provision of a hearing d[oes] not transform [a] direct contempt into a constructive [contempt].” Murphy, 46 Md.App. at 150 , 416 A.2d at 755 . In other words, we must decide whether Murphy is still good law in view of this Court’s revisions to the Contempt Rules in 1996, sixteen years after Murphy was decided. ⁴³⁸ At the time Murphy was decided, direct contempt proceedings were governed by Maryland Rule P3.

That Rule provided: a. A direct contempt may be punished summarily by the court against which the contempt was committed, b. Where a direct contempt is committed, the court shall sign a written order to that effect. The order shall recite the facts, be signed by the judge and entered of record.

The order shall state which of the facts were known to the court of its own knowledge and as to any facts not so known, the basis for the court’s finding with