Murphy v. State

Moore, J., delivered the opinion of the Court. Defendant-appellant, William H. Murphy, Jr., a member of the Bar with offices in Baltimore City, 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. On September 14, 1979, the court (Edmondson, J.) issued an Order to Show Cause why defendant should not be held in contempt of court. 1 After a hearing before Judge Edmondson on October 15,1979, defendant was found in direct contempt and fined $1,000.00. On this appeal, he raises three issues: (a) that his failure to appear in court must be treated as a constructive contempt and not as a direct contempt; (b) that the trial court erred in holding that a defendant in a case of criminal contempt has the burden of proving exculpatory circumstances; and (c) that his failure to appear was not contemptuous.

I On September 6,1979, two criminal cases were scheduled for trial in the Circuit Court for Dorchester County: State v. ¹⁴⁰ Dobson, No. 3803, a murder case; and State v. Price, No. 3796, a "natural resources” case. At 10:00 a.m. the trial judge, the Honorable Charles E. Edmondson, called the first case. The State was present. Ms. Dobson, the defendant, was present but her attorney, Mr. Murphy, was absent.

She told Judge Edmondson that she had last seen Mr. Murphy in March when she was released from custody. John L. Norton, III, the State’s Attorney for Dorchester County, then informed the court that Mr. Murphy had telephoned him the previous evening and had said that, he would not be present for the two criminal trials because of the carry-over of a criminal trial in Baltimore in which he was engaged. Mr. Norton indicated that the State had summoned a number of witnesses from around the State and that they were present to testify in both cases. He also indicated that Mr. Murphy had failed to appear for a pretrial suppression hearing the week before.

Judge Edmondson then related that Mr. Murphy had telephoned him at 9:20 a.m. that morning, forty minutes prior to the scheduled start of trial, had told him that he was involved in a jury trial in Baltimore City, and had said that he could not appear for the two Dorchester County trials. Called as a witness to explain the scheduling of the two criminal cases, Mrs. Donna Pyle, Chief Deputy Clerk of the Circuit Court for Dorchester County, testified that the September 6, 1979 trial date was set on May 25, 1979 after several telephone calls to Mr. Murphy’s office because "I was informed by that office this was the only date that Mr. Murphy was free.” At that time she was told by the attorney’s secretary that he "felt that he could try both cases [in] one day.” She also testified that, in August 1979, Mr. Murphy was in Mrs. Pyle’s office to discuss another, unrelated case; the September 6th cases were mentioned and "he gave no indication that he would not be here at that time.” Prior to hearing from the two criminal defendants whom Mr. Murphy was scheduled to represent, the trial judge asked the State’s Attorney to review the law and report back ¹⁴¹ to him so that "we can reach some decision whether or not to cite Mr. Murphy for contempt of court for failing to appear today.” The defendant in the second case, Gregory Wesley Price, then informed the court that because of the absence of his attorney, Mr. Murphy, he wanted to dismiss his case, an appeal from the District Court. Mr. Price stated that he had not talked to Mr. Murphy for months and that "he has been giving us a run around.” Judge Edmondson thereupon dismissed Mr. Price’s appeal and waived the court costs. Mrs. Dobson, the other defendant, requested a hearing in chambers, which was held immediately after the court adjourned.

At that hearing Mrs. Pyle, the Deputy Clerk, indicated that Mrs. Dobson’s trial could not be rescheduled for another five or six months. Judge Edmondson, who advised Mrs. Dobson to get in touch with Mr. Murphy immediately, also stated: "We have had such trouble scheduling cases in which Mr. Murphy is involved that we said, 'You pick your trial date and that’s when we will have it.’ That’s what we do and then he doesn’t show up.” A Show Cause Order issued on September 14, 1979; it ordered Mr. Murphy to appear on October 15, 1979 to show cause why he should not be held in contempt of court. In the Order, Judge Edmondson stated that although a direct contempt may be summarily punished pursuant to Md. Rule P3 (a), he wished "to preserve this Defendant’s right to due process and to therefore give him an opportunity to show cause why he should not be held in contempt. . . .” At the hearing Mr. Murphy argued that Md. Rule P4, dealing with constructive contempts, and not Md. Rule P3, should apply to the proceedings because his alleged contempt was at most constructive. Judge Edmondson, citing Kandel v. State, 252 Md. 668, 250 A.2d 853 (1969), ruled that the defendant’s failure to appear at trial as defense counsel at the appointed time constituted a direct contempt, punishable summarily.

Mr. Murphy then entered an objection to the proceedings, citing alleged denials of due ¹⁴² process of law and the right to confront the witnesses against him. Mr. Murphy explained to the court that he had been representing Samuel Floyd in a murder trial in the Criminal Court of Baltimore on September 6, 1979. He stated that a scheduled August 29th trial date in the case had been delayed two days because the Hicks 2 decision had caused a tremendous backlog in that court. Acknowledging that he had not appeared for the pretrial suppression hearing scheduled for August 31st, Mr. Murphy said that he had called Circuit Court Judge Simpkins to inform him that the Floyd trial conflicted.

Mr. Murphy then offered this explanation to the court: "So, backing up, Wednesday, August the 29th, Samuel Floyd was scheduled to go to trial for murder in the criminal court in Baltimore City. On Wednesday we were notified no court was available, not to go anywhere because one might be imminently available. "On Thursday no court was yet available. We were told not to go anywhere, a court would be imminently available.

And, either Thursday late afternoon or Friday morning I contacted Judge Simpkins to let him know that because they had found a court that I would not be able to be there on the 31st. "Now the Floyd case continued to Tuesday, September the 4th, Wednesday, September the 5th, Thursday, September the 6th et cetera, et cetera. "Now once having been started, and once having put Judge Simpkins on notice, I took it for granted, as I felt I had a right to do, that, therefore, this court, because he was sitting in this court, knew that I was involved in a continued jury case. . . .” According to Mr. Murphy, the State’s Attorney told him on September 5th during their telephone conversation that ¹⁴³ "everything is going to be alright, no problem.” When he called Judge Edmondson the next morning, he was told that he would be held in contempt of court if he failed to appear. Mr. Murphy "tried to persuade the Court not to do that, and we had a cordial conversation. ...

I was convinced that the Court was going to take the action that it did, and turned out to be correct.” Acknowledging that he never contacted the assignment clerk to inform her of his conflict, Mr. Murphy said "I didn’t know that it was my obligation to call [her].” He also stated that he had asked his secretary to call the court to inform it of the conflict "but she simply didn’t follow through on this particular point. . . .” When Mr. Murphy finished his testimony, the court heard from Mr. Norton, the State’s Attorney. He related that his office had been in contact with Mr. Murphy’s office "a great deal” during the period immediately preceding the scheduled trial. Mr. Norton also stated that "the reason I was making a great number of calls to his office was to find out whether or not he would be able to appear at the trial September 6th.” When questioned by the court, Mr. Norton stated that the telephone call from Mr. Murphy on September 5th was the "[fjirst time I knew he would not be here. . . . Up until that time . . . everything was tentative, unsure, uncertain.” Judge Edmondson then pointed out that the court personnel "thought he would be here up until 9:20 the morning of September the 6th.” After a brief recess the court issued an opinion from the bench in which it stated "that this Court was not aware of any possible postponement until you called me at 9:20 on the morning of September the 6th, 1979, which was the date set for trial for both cases.” In the opinion the court observed that the contempt proceedings were motivated solely by the need to ensure that the court’s calendar is not delayed by the absence of attorneys, parties, or witnesses: "I hope you understand how I feel.

Now I want to make one thing clear to you — I’m not mad with you. I guess it could be said I’m disturbed with you ¹⁴⁴ because of the trouble it causes this court. But, in all sincerity you are an excellent lawyer and I would rather see you come in this court and try a criminal case as anybody that’s been in this court because you try a good case. But, we have the greatest time trying to get you here to try them.

And that’s what is causing us the trouble.” At the conclusion of his opinion Judge Edmondson found: "We think you violated the rules, we think the facts proved that, and we have cited you for contempt. We find you in contempt, and we are going to fine you.” The fine imposed by the court was $1,000.00, 3 which was based on: "Direct cost of convening this court today with jurors, all the necessary people, I think is in excess of $500. If you added on all the costs, I think it is safe to say it would cost $1,000 a day, all the indirect and direct costs. I think a reasonable fine in this case is $1,000.” On October 17, 1979 the court issued an Order of Contempt reciting all the facts "known to the Court of its own knowledge,” including the fact that "the Court, the parties, the witnesses, and the jurors were all greatly inconvenienced by the failure of Mr. Murphy to appear in Court at the time scheduled for trial or to give the Court timely notice of his intention not to appear.” II Judge Edmondson treated defendant’s failure to appear as a direct contempt of court. 4 On appeal, Mr. Murphy argues ¹⁴⁵ that his behavior was, at most, a constructive contempt that must be proceeded against within the strictures of Md. Rule P4.

The Maryland Rules define a direct contempt as one "committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Md. Rule PI (a). A direct contempt may be punished summarily by the court, Md. Rule P3 (a), whereas a constructive contempt requires a more elaborate procedure, including notice to the defendant in the form of a show cause order allowing the defendant reasonable time for the preparation of the defense. Md. Rule P4 (b). Furthermore, unless the defendant otherwise consents, the judge who issued the citation for constructive contempt is disqualified from presiding at the hearing except where the contempt consists of failure to obey an order or judgment in a civil case.

Md. Rule P4 (d) (2). In sum, whether the defendant is subject to summary punishment or is entitled to an adversary hearing hinges on whether the contempt is classified as direct or constructive. In State v. Roll and Scholl, 267 Md. 714, 734 , 298 A.2d 867, 879 (1973), the Court of Appeals analyzed the constitutional background of summary direct contempt proceedings. Judge Digges, writing for the Court, explicated direct contempt in the following language: "A direct contempt occurs when the actions of the contemnor interrupt the order of the courtroom and interfere with the conduct of business.

When such disruption occurs within the sensory perception of a presiding judge he will have sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.” (Emphasis added.) ¹⁴⁶ See Pearson v. State, 28 Md. App. 464, 482 , 347 A.2d 239, 250 (1975). One must look to the nature of the alleged contemptuous acts to determine whether they occurred in the presence of the court. As the court made plain in Roll and Scholl , the resort to additional testimony does not indicate that a contempt is constructive; it is the contemptuous act itself which is determinative. State v. Roll and Scholl, supra, 267 Md. at 734 , 298 A.2d at 879 .

In evaluating the nature of Mr. Murphy’s alleged contempt we are guided, as was the trial judge, by the leading Maryland case of Kandel v. State, supra, 252 Md. 668 , 250 A.2d 853 (1969), in which the Court found that the "[u]njustified failure of an attorney to appear in court on time is at least misbehavior on the part of an officer of the court.” Id. at 671, 250 A.2d at 854 . In reviewing Mr. Kandel’s contempt conviction the Court noted that in such cases "the guilty one may be punished summarily. . . .” Id. at 672 , 250 A.2d at 855 . Mr. Murphy argues on appeal that Kandel does not control this case because the reasons he gave for his absence and failure to notify the court of his absence "if believed, do excuse his absence as well as the Court’s failure to get notice of his absence prior to September 6th.” He asserts that none of the facts constituting his excuse occurred in the presence of the court and, therefore, "the Judge had to find facts of which he had no personal knowledge before a judgment of contempt could be reached.” This, he contends, distinguishes Kandel and requires that his alleged contempt be treated as constructive under Rule P4. In our view, an attorney plays such ah integral role in the judicial process that without his presence the wheels of justice must, necessarily, grind to a halt.

The attorney’s absence from the courtroom is immediately cognizable by the judge and intrudes upon the operation and dignity of the court. This fact was recognized by the California Supreme Court in a case in which it decided that an attorney’s unjustified nonappearance constituted a direct contempt of court: ¹⁴⁷ "It is clear that the trial and the attorney’s participation in it are in the court’s immediate view and presence and, obviously, petitioner’s obstruction of the trial by absenting himself from the court is just as directly within the view and presence and knowledge of the court as would be any other conduct by him during, and directly affecting, the trial.” Lyons v. Superior Court, 43 Cal. 2d 755, 759 , 278 P.2d 681, 683 (1955). 5 The essence of the contempt, the attorney’s absence from trial, occurs in the presence of the court and impacts upon those who are to participate in the obstructed proceedings. Judicial resources are not unlimited; we cannot condone behavior that causes precious time to be wasted away while the court, parties, court personnel, and witnesses await the arrival of the errant attorney. In our neighboring jurisdiction of the District of Columbia, the failure of an attorney to appear promptly in court has been consistently held to be a direct contempt of court, punishable summarily: