Scott v. State

BISHOP, Judge. In the course of conducting proceedings on a mechanic’s lien petition brought by a third party, Judge J. James McKenna of the Circuit Court for Montgomery County held appellant, Jonathan Scott, in criminal contempt of court and sentenced him to thirty days in jail. Appellant noted a timely appeal to this Court. ISSUES Appellant raises six issues on appeal, which we reorder and rephrase: I. Did the trial judge commit reversible error when he ruled that appellant’s alleged contempt was direct rather than constructive?' II.

Did the trial judge violate appellant’s due process rights, and thus commit reversible error, when he failed to recuse himself from the proceedings?

III

Is there sufficient evidence in the record to support a finding that appellant committed a criminal contempt of court?

IV

Did the trial judge’s written order of contempt violate the requirements of Rule P3? V. Did the trial judge commit reversible error when he ruled that appellant was not entitled to a jury trial?

VI

Did the contempt proceedings against appellant violate the U.S. Constitution’s bar against double jeopardy? FACTS A. The Underlying Litigation This case began when a third party, Barrons Enterprises, Inc., filed a complaint against appellant in the Circuit Court ⁴⁶⁹ for Montgomery County in December, 1994; the complaint alleged that appellant owed Barrons money and asked that a mechanic’s lien be established on appellant’s property. As a result of Barrons’s complaint, the circuit court issued a show cause order directing that 1) appellant and his wife file either an answer or' a counter-affidavit by February 16, 1995, and 2) all parties appear for a hearing on the matter on February 21, 1995. On February 16, 1995, appellant filed an answer and a motion to dismiss Barrons’s mechanic’s lien petition.

The answer contained a “Certificate of Mailing,” which stated that it had been mailed to Barrons’s lawyer, Alan Fishbein, on February 16, 1995. B. The February 21, 1995 Hearing At the February 21, 1995 hearing, presided over by Judge McKenna, Mr. Fishbein appeared on behalf of Barrons, and appellant represented himself. Shortly after the beginning of the proceeding, Mr. Fishbein informed Judge McKenna that he had not yet received a copy of either appellant’s answer or his motion to dismiss. Judge McKenna asked appellant if he had an extra copy of the pleadings, and appellant responded as follows: MR.

SCOTT: I do have an extra copy. I did mail a copy on the 16th of February to Mr. Fishbein at his Ellicott City, Maryland address. Appellant also told Judge McKenna that he had given a copy of the pleadings to Mr. Fishbein that day. Mr. Fishbein objected to proceeding with the hearing that day on the ground that he would need discovery from appellant in order to respond appropriately.

Judge McKenna agreed with Mr. Fishbein, and the hearing was postponed until April 20, 1995. Before adjourning, appellant informed the court that he had with him all the documents he needed to demonstrate that the mechanic’s lien petition should be dismissed. Judge McKenna responded as follows: ⁴⁷⁰ THE COURT: Maybe you can get it done in quicker time than [two months]. It may be that he will dismiss this whole thing.

I don’t know, but I just want to give him enough time to perfect it ... I don’t know, but it may behoove you, Mr. Scott, to take time and chat with counsel here before you leave here today. Okay? C. Activities Between Hearings In his brief, appellant concedes that, after the hearing ended, while walking to the elevator, he refused a request on the part of Mr. Fishbein to relinquish the documents to which he referred at the end of the hearing.

Appellant also concedes, in his brief, that he told Mr. Fishbein that if he wanted those documents, “he knew how to get [them].” At oral argument, however, appellant informed us that he refused to relinquish the documents because of Mr. Fishbein’s belligerent attitude. On February 23, 1995, two days after the hearing, Mr. Fishbein received, at his office, a copy of appellant’s answer and motion to dismiss; the postmark on the envelope was dated February 21. Because of the postmark on the envelope, Mr. Fishbein concluded that appellant mailed his pleadings on February 21, 1995, and not on February 16, 1995. On March 6, 1995, Mr. Fishbein filed a motion to strike both appellant’s answer and appellant’s motion to dismiss on the ground that: 1) appellant misrepresented to the court the date on which he mailed his pleadings to Mr. Fishbein; and 2) appellant’s motion to dismiss did not have a certificate of service.

In order to take discovery, Mr. Fishbein scheduled appellant for a deposition on April 10, 1995; appellant, however, failed to appear at the deposition. Accordingly, on April 12, 1995, Mr. Fishbein filed a motion for sanctions against appellant. D. The April 20, 1995 Hearing The April 20, 1995 hearing, which was also presided over by Judge McKenna, commenced with a recitation, by Mr. Fish ⁴⁷¹ bein, of the events that occurred after the February 21 hearing. Mr. Fishbein first reminded the court about both appellant’s statement, made in open court on February 21, that he had mailed his pleadings to Mr. Fishbein on February 16, and appellant’s certificate of service on his answer, certifying that it had been mailed on February 16.

Mr. Fishbein then related appellant’s refusal to relinquish documents in the hallway after the February hearing. Mr. Fishbein also told the court about his receipt of appellant’s pleadings on February 23 and showed Judge McKenna the February 21 postmark on the envelope carrying those pleadings. Finally, Mr. Fishbein recounted both his attempt to take appellant’s deposition and appellant’s failure to appear for that deposition. After hearing from Mr. Fishbein, Judge McKenna asked appellant’s attorney, Lawrence F. Regan, Jr., for his input on the matter.

Mr. Regan responded that, although he had represented both appellant and appellant’s corporation in other, related matters, he had not become involved in the litigation with Barrons until the day before, and therefore had not had an opportunity to examine carefully the motions filed against appellant. Judge McKenna responded by listing some of the motions that had been filed against appellant, and Mr. Regan told the court that he wanted to address first Mr. Fishbein’s motion to strike. Shortly after Mr. Regan began speaking, however, Judge McKenna cut him off and displayed his displeasure with appellant’s apparent misstatement about the date he had mailed his pleadings: ' THE COURT: Let me ask you this: Do you think I ought to take at all into account an apparent bald-face lie by your client to me in open court? Should I do anything about that or should I just simply sit back and say, well, that is the way it goes, assuming that that is correct.

Mr. Regan began to respond, but was again cut off by Judge McKenna, who turned his attention to appellant and said: THE COURT: Do you want to step forward, sir? You can step forward because if you feel like your goose is about ⁴⁷² to get cooked, you are on the right track, and I would suggest that if you step forward that you remain silent until asked to be spoken to. (Emphasis added). After a further exchange between the two lawyers and the court, Judge McKenna granted both the motion for sanctions against appellant and the motion to strike appellant’s answer and motion to dismiss.

Judge McKenna then turned his attention back to the contempt issue: THE COURT: Now the question is whether or not I ought to get into the question of having a show cause hearing why [appellant] ought not to be held in criminal contempt of this Court. Mr, Fishbein, I will hear from you first on that. We can set up a show cause giving him a time and a date when he can come in here and convince me why I ought not to punish him for his past activities. After hearing from Mr. Fishbein, but before allowing Mr. Regan any input, Judge McKenna decided to issue a show cause order on appellant’s alleged contempt: THE COURT: Okay.

Mr. Regan, I am going to give you an opportunity to represent your client again, but it is going to be at a show cause hearing. As I said, [appellant] may have made a very, very, very serious mistake or maybe he didn’t. That is why we have show cause hearings. Maybe there has all been a big misunderstanding, and if there has been a misunderstanding, well, then he doesn’t have anything to worry about, but if there hasn’t been a misunderstanding and if he may think to himself, well, the way to get out of this is to add another lie to a series of lies that have already been set, that would be compounding the mistake because if that lie happens to be under oath, why we have a name for that: We call it perjury, and then that gets involved in the entire criminal process.

Subsequently, Judge McKenna issued an order setting up a show cause hearing on May 9,1995. ⁴⁷³ E. The May 9, 1995 Hearing The May 9 hearing commenced with a recitation by Mr. Fishbein of the events of the case. In particular, Mr. Fishbein emphasized the following facts: that appellant filed his pleadings on February 16, 1995; that appellant put a certificate of service on his answer stating that the pleadings had been sent to Mr. Fishbein on February 16, 1995; that appellant told Judge McKenna, in open court, that he mailed the pleadings on February 16,1995; that Mr. Fishbein’s law office received appellant’s pleadings on February 23, 1995; and that the envelope carrying those pleadings had a February 21,1995 date stamp on it. When Mr. Fishbein finished his summary of the facts pertaining to appellant’s alleged misstatements about the date on which he mailed his pleadings, Judge McKenna asked whether a contempt citation was also appropriate for appellant’s failure to appear for his deposition: THE COURT: That, I take it, explains that portion of the show cause that you put together for me which talks about statements. You don’t get into the—the show cause was signed on the 24th of April, but it does not talk about—we never have addressed the issue of his failure to show up for the deposition.

Mr. Fishbein explained that Judge McKenna had already granted relief for appellant’s failure to come to his deposition by allowing Mr. Fishbein’s motion to strike and motion for sanctions. Judge McKenna responded by saying, “It seems to me that I said at that time that I wanted to address the issue of contempt.” Mr. Fishbein repeated that he thought that relief for appellant’s failure to appear for the deposition had already been granted, and a contempt citation was not necessary. Judge McKenna agreed, and thus made it clear that appellant was being charged with contempt only for his alleged misstatements to the court about the date he mailed his pleadings to Mr. Fishbein: THE COURT: Okay. There you have it, and that is what brings us here today.

Mr. Regan, I will hear from you. ⁴⁷⁴ Unless there be any doubt about it, the specific items which, although you are right it isn’t particularly clear from the show cause, but the specific items that we are talking about is the allegation that your client on February 21 looked me in the eye and told me that he had done certain acts which he had not done, allegedly. Mr. Regan responded by first asking for a jury trial, and he and Judge McKenna began discussing that issue. In the middle of their colloquy, however, Judge McKenna turned his attention to appellant, and the following exchange occurred: THE COURT: I can tell you that I feel rather strongly about people who come in here and lie, eyeball to eyeball with me, such as the guy sitting next to you staring at me as if he feels that he is a tough guy. MR.

REGAN: Your Honor, I told him to have a poker face today. I don’t think that that is applicable. That is my fault. THE COURT: If he decides that he wants to and let the record reflect that it is my view of looking at the visage of Mr. Scott that he feels that somehow or another he is going to be able to stare this member of the bench down and that would be a tricky business, at best, from his point of view.

To say that I am not pleased with him is an understatement. MR. REGAN: Your Honor, we have not pled guilty to this. THE COURT: I know you haven’t pled guilty to it, but I know what went on, though.

Mr. Regan then returned to the issue of whether appellant was entitled to a jury trial. Judge McKenna asked Mr. Regan what his authority was for appellant’s entitlement to a jury trial, and Mr. Regan said that he would have to go back and find some. Mr. Regan then asked for a continuance on the ground that 1) he had not had an opportunity to hear a tape of the February 21, 1995 hearing, and 2) he needed to find witnesses to testify on behalf of appellant. Judge McKenna agreed to a continuance until June 7, 1995 and asked both parties to file memoranda on the issue of whether appellant’s ⁴⁷⁵ alleged contempt was direct or constructive.

Before adjourning the hearing, however, Judge McKenna again made clear his displeasure with appellant: THE COURT: Fine. Suffice to say, gentlemen, that because of the alleged—let’s put it this way. There are few things about which I get exercised. I mean, most of the time I will let things slide.

I think it is fairly well known in the legal community that I try to be reasonable and try to be fair and try to settle cases and that sort of thing, but if there is one thing that I will follow somebody until hell freezes over is if that person lies to me. Then I will pursue it like an avenging angel, and that is what is going on right now. This is the first time in the nine and a half years that I have been on the bench that this has happened, I am happy to say, but I intend to pursue it. (Emphasis added).

F. The June 7, 1995 Hearing Judge McKenna commenced the June 7 proceeding by hearing argument from Mr. Regan and Mr. Fishbein on the question of whether appellant’s alleged contempt was direct or constructive. After a significant amount of debate, Judge McKenna ruled that the alleged contempt was direct and that he was therefore able to issue a ruling on the matter. Judge McKenna next asked for opening statements from both attorneys. Mr. Fishbein went first, and recounted both the February 21 hearing and the events which occurred in the aftermath of that hearing.

When he finished, Judge McKenna identified the actions on which appellant’s contempt charge was based: THE COURT: I think the issues are quite narrow or the issues are quite narrow [sic]. The allegation of contempt or not is that on the date of February 21, 1995, [appellant] lied to me when he told me that he had already placed these documents in the mail. That is the long of it and the short of it. ⁴⁷⁶ Judge McKenna then allowed Mr. Regan to make an opening statement. Among other things, Mr. Regan explained that appellant had mailed his pleadings to Mr. Fishbein on February 18, 1995, a Saturday, and that February 20, 1995, which was the following Monday, was President’s Day; according to Mr. Regan, the fact that a federal holiday fell on February 20 explained the February 21, 1995 postmark on the envelope carrying appellant’s pleadings.

After the opening statements, Judge McKenna proceeded to introduce evidence into the record. He first informed Mr. Fishbein that his actual testimony was unnecessary because his opening statement was sufficient to impart the relevant events of the case. Judge McKenna then introduced into evidence, as “Court’s Exhibit Number 1,” the pleadings which appellant sent to Mr. Fishbein and the envelope carrying those pleadings. Finally, Judge McKenna introduced, as “Court’s Exhibit Number 2,” the tape of the February 21 proceeding, and played the tape for the record.

When the tape had finished playing, Judge McKenna made some comments about it, asked Mr. Fishbein if he had anything to add, and made the following statement: THE COURT: All right, thank you. In effect, the prosecution rests. Mr. Regan, the ball is now over in your client’s case. Mr. Regan’s first witness was appellant’s brother, David Scott.

Mr. Scott ascended the witness stand and took the witness’s oath, but before he was able to begin testifying, Judge McKenna intervened and the following ensued: THE COURT: Now, let me step in here. Mr. Scott, I want to tell you a couple of things. You are now under oath. I am not prejudging your testimony whatsoever, but I do want to let you know that in this State of Maryland we have a crime which is known as that of perjury.

What it means is lying under oath, and what it means is it is a felony. I don’t know what the maximum is. I believe it is 10 years and it may be 20. I am not sure, but it is‘ at least 10 years in the penitentiary.

It is taken very, very ⁴⁷⁷ seriously by the courts, and it is taken especially seriously by this member of the bench. I don’t know what you are about to say, but I do think that it is important for you to know the ramifications. If it turns out that whatever you say in conjunction with whatever purportedly your brother is going to say that in my view there is reason to believe that you have committed perjury in this courtroom, I intend to send the entire transcript of this matter down to the State’s Attorney’s office on the fifth floor of this building for them to look into the question of whether or not there has been perjury that has been committed on this matter of the bench. Sir, I just want you to note that.

I don’t want anybody to kind of get sandbagged here in this courtroom. Armed with that knowledge, armed with the notion that there is that possibility, do you understand what I have to say? I think I made simple declarative sentences, and they weren’t complicated, were they? THE WITNESS: No. THE COURT: Fine.

All right, you may proceed. Mr. Scott testified that on February 15, 1995 he arrived at home to find appellant working on his computer. According to Mr. Scott, appellant gave him a stack of papers and a letter and told him that, the next day, he was to file one set of papers with the court and mail the letter. Mr. Scott testified that on February 16, 1995, he took the papers down to the clerk’s office of the Montgomery County Circuit Court, filed one set, and received a date-stamped set for himself; he also testified that he never mailed the letter.

Appellant was the next to testify, and Judge McKenna addressed him immediately after he stated his name and address: THE COURT: Excuse me. I am going to take over at this point. MR. REGAN: Okay.

THE COURT: Mr. Scott, you were here, were you not, when your brother took the stand a few moments ago? ⁴⁷⁸ THE WITNESS: Yes, I was. THE COURT: And you heard what I said to him about the issue of perjury, did you not? THE WITNESS: Clearly. THE COURT: Do you have any questions about what I said to him about perjury?

THE WITNESS: No, I do not. THE COURT: Do you know that the same thing applies to you? THE WITNESS: Yes, I do. THE COURT: Fine, and you want to proceed?

THE WITNESS: Yes, sir. THE COURT: Fine. He wants to proceed. On direct examination, appellant testified to the following: that on February 15, 1995, he went to his brother David’s house to complete paperwork that was due in connection with the Barrons litigation; that he had a new job at that point which was taking up much of his time, and he could not afford an attorney; that he prepared all of the pleadings in the case himself; that he used the pleadings of others as a model for the ones he prepared; that he finished the pleadings on the night of February 15, 1995, placed them in a stack, and put one copy in a letter addressed to Mr. Fishbein; that he gave the pleadings and the letter to his brother, David, with instructions to. file the pleadings and mail the letter the next day; that on February 16, 1995, he went to work in Washington, D.C., and did not handle the pleadings or the letter that day; that he went to David Scott’s house next on February 18, 1995, a Saturday, and found the letter to Mr. Fishbein lying on a table; that he promptly mailed the letter from his parents’ house after he found it; and that he had no intention to deceive Judge McKenna during the February 21, 1995 hearing.

In explaining his conduct during the February hearing, appellant testified: I got to court and I, of course, was nervous as to when the case was going to be called. I listened to several other ⁴⁷⁹ cases, and I tried to ascertain how I was to behave when I came before the judge and I determined that I should try to be as brief as I could be and as concise as I could be without getting to [sic] long winded. So when they called the case, I came up and presented my case. Then when Mr. Fishbein tried to—I believe he was trying to infer that I hadn’t mailed a copy of that, and I did, indeed, tell in response to Mr. Fishbein’s claiming that I never mailed it that yes, I did mail it on the 16th.

Well, when we were running the company David was our mailman, so to speak, so when I gave it to him I considered it handled. On cross-examination, which was conducted by Mr. Fishbein, the following exchange occurred regarding appellant’s state of mind during the February 21 hearing: Q You say that you found [the letter] in your brother’s home on the 18th, on Saturday, and mailed it from Ashton near your parents’ home. Is that correct? A I mailed it at my parents’ home.

Q You did not tell Judge McKenna on February 21, 1995 that you mailed it from your parents’ home on the 18th. You told Judge McKenna that you mailed it to me in Ellicott City on February 16, 1995. Isn’t that correct? A That is correct.

Q You knew at that time that you hadn’t mailed it on the 16th of February 1995. Isn’t that correct, sir? A I don’t recall that. I recall that at that time.

Q You mean to tell me that you found this letter, so you say, on the 16th of February of 1995 and mailed it then and you didn’t remember three days later in open court that you hadn’t mailed it on the 16th, you had mailed it on Saturday, the 18th of February, 1995? Is that what you’re telling me? THE WITNESS: A lot of things have happened to me. A lot of things everyday that these days I don’t remember because it is coming so fast and so furious. ⁴⁸⁰ Q: Mr. Scott, you knew there was an issue when we were in court on February 21,1995 that I hadn’t seen any of the pleadings.

Do you remember that issue? A: I remember that. Q: You didn’t tell the judge, gee, judge, I am sorry. My brother was supposed to mail it on the 16th.

He didn’t mail it. I learned about it on the 18th. I mailed it on it [sic] to Mr. Fishbein and that is why he doesn’t have a copy yet. You didn’t say that, did you?

A: I didn’t remember that. After appellant had finished testifying, Mr. Regan moved to dismiss the case on the ground that not enough evidence had been adduced to find, beyond a reasonable doubt, that appellant had committed a contempt of court. Judge McKenna rejected that argument, and ruled that appellant had committed a criminal contempt of court. After hearing allocution from both lawyers—Mr. Regan asked for leniency, while Mr. Fishbein asked that appellant be given six months in jail— Judge McKenna sentenced appellant to thirty days in jail.

This appeal followed. DISCUSSION I. Direct versus Constructive Contempt Appellant argues that