Thomas v. State

Gilbert, J., delivered the opinion of the Court. On March 29, 1974 the appellant, Calvin Edward Thomas, a fifteen year old, appeared at the trial of Larry Anthony Moody. Moody was charged with the robbery and larceny of a watch. Appellant faced the identical charges in the same court because the juvenile court had waived jurisdiction over him on December 20, 1973, although the appellant’s case before the Circuit Court had not come on for trial inasmuch as he had entered an appeal to this Court from the waiver order. 1 We have attached to this opinion Appendix A, which is part of the transcript of both the Moody trial and the appellant’s subsequent contempt hearing.

It would be superfluous to set forth in the text of this opinion the divers acts of the appellant that led to the contempt citation. Suffice it to say that the conduct of appellant, as reflected by Appendix A, leads to the inescapable conclusion that appellant so conducted himself as to demean the orderly administration of justice, depicted his contempt for the ⁵⁷⁴ Circuit Court for Kent County, was rude, discourteous, disrespectful, disruptive, defiant and irascible even after being warned by Judge George B. Rasin that if appellant persisted he would be cited for contempt. The appellant did persist, was cited, adjudged guilty and sentenced to 179 days in the County Jail. Judge Rasin, at the outset of the contempt proceeding, stated that he thought an “appropriate punishment” to be “some deprivation of . . . freedom, for some period of time that would be less than 6 months, which would not require a jury trial.” 2 In Roll v. State, supra at 48, we said: “As direct contempts are those which occur in the presence of the court or so near to the court as to interrupt its proceedings, the judge is usually an observer of or has personal knowledge of the facts.” 3 Augustine Birrell, In the Name of Bodleian: Contempt of Court, wrote: “An ill-disposed person may exhibit contempt of court in divers ways — for example, he may scandalize the court itself, which may be done not merely by the extreme measure of hurling missiles at the presiding judge, or loudly contemning his learning or authority, but by ostentatiously reading a newspaper in his presence, or laughing uproariously at a joke made by someone else.

Such contempts, committed as they are in facie curiae, are criminal offences, and may be punished ⁵⁷⁵ summarily by immediate imprisonment without the right of appeal. 4 It speaks well both for the great good sense of the judges and for the deep-rooted legal instincts of our people that such offences are seldom heard of. It would be impossible nicely to define what measure of freedom of manners should be allowed in a court of justice, which, as we know, is neither a church nor a theatre, but, as a matter of practice, the happy mean between an awe-struck and unmanly silence and free-and-easy conversation is well preserved.” Without attempting to define the “measure of freedom of manners . . . allowed in a court of justice”, we think it indubitable that reasonable men would agree that appellant’s conduct during the Moody trial was contemptuous, and that appellant carried such conduct forward into his own contempt hearing. Appellant’s contention that his “gestures were merely to get the attention of the Court so that he might testify; and his hostility was simply based upon an inner attitude toward a system which he felt was prejudicial” 5 does not excuse him from patently disdainful conduct. We find no merit in appellant’s assertion that “there is no factual support for the finding of contempt.” An outcrop of appellant’s contemptuous conduct poses an additional question of whether a juvenile who commits a direct contempt of a Circuit Court can be summarily adjudged in contempt or must be referred to a juvenile court for a waiver or delinquency hearing.

By Laws 1969, Ch. 432, § 2, 6 the General Assembly set forth the legislative purpose of “Juvenile Causes”. Those purposes are: ⁵⁷⁶ “(1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; (2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, and to substitute therefor a program of treatment, training, and rehabilitation consistent with the protection of the public interest; (3) To place a child in a wholesome family environment whenever possible; (4) To separate a child from his parents only when necessary for his welfare or in the interest of public safety; (5) To provide judicial procedure for carrying out the provisions of this subtitle. This subtitle shall be liberally construed to effectuate these purposes.” This Court in the case of In re Hamill, 10 Md. App. 586 , 271 A. 2d 762 (1970), in commenting upon the purpose of the Act said, at 590-91: “. . . [T]he Legislature intended no departure in philosophy from that underlying previous juvenile court enactments in Maryland, as interpreted by the Court of Appeals, viz., that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent (In Re Fletcher, 251 Md. 520 [, 248 A. 2d 364 (1968)]); that the proceedings of a juvenile court are not criminal in nature and its dispositions are not punishments for crime {In the Matter of Cromwell, 232 Md. 409 [, 194 A. 2d 88 (1963)]); that the juvenile law has as its underlying concept the protection of the juvenile, so that judges, in making dispositions in juvenile cases, think not in terms of guilt, but of the child’s need for protection or rehabilitation (In Re Johnson, 254 Md. 517 [, 255 A. 2d 419 (1969)]); that ⁵⁷⁷ the juvenile act does not contemplate the punishment of children where they are found to be delinquent, but rather an attempt to correct and rehabilitate them in ‘a wholesome family environment whenever possible,’ although rehabilitation may have to be sought in some instances in an institution (Moquin v. State, 216 Md. 524 [, 140 A. 2d 914 (1958)]).” See also In re Arnold, 12 Md. App. 384 , 278 A. 2d 658 (1971). Courts Art. § 1-501 provides that: “ . . .

Each [Circuit Court] has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.” By § 3-804 of the Courts Art. it is further, in pertinent part, provided: “(a) The [juvenile] court has exclusive original jurisdiction over a child alleged to be: (1) Delinquent; (2) Dependent; (3) Neglected; (4) In need of supervision; or (5) Mentally handicapped.” In his argument to this Court, appellant contends that the above quoted provisions of the Courts Article and Hamill , demonstrate that juvenile courts have exclusive jurisdiction over persons under the age of 18 years who commit an act that would be a crime if committed by an adult, and, inasmuch as direct contempt, if committed by an adult would be a crime, the appellant, a juvenile, must be proceeded against in a juvenile court. We do not share that view. ⁵⁷⁸ Courts Art. § 1-202 provides: “(a) Exercise of Power — A court may exercise the power to punish for contempt of court or to compel compliance with its commands in the manner prescribed by the Maryland Rules or Maryland District Rules.” 7 The Maryland Rule concerned with the procedure for punishment of direct contempt is P3 (a). That Rule states: “a. Summary Punishment: A direct contempt may be punished summarily by the court against which the contempt was committed.” The fundamental reason why a court possesses the power to punish for contempt is not to protect the personage of the judge from real or imagined injury to his pride or dignity, but to assure the proper conduct of the orderly administration of justice over which the judge has been designated to preside.

Helmore v. Smith, 35 Ch. D. 449, 455 (1887). If we were to adopt appellant’s point of view that Judge Rasin had no authority to dispose summarily of the in facie curiae contempt by a juvenile, we would erode the authority of the judge to conduct court proceedings in an orderly manner, strip a trial court of its right to deal with contemptuous, disruptive juvenile witnesses, render nugatory Md. Rule P3(a) in its application to juveniles and throw open wide the door to conduct creating chaotic courtroom conditions. We think the Legislature, in the adoption of the “Juvenile Causes Act”, never intended to deprive the courts of their authority to punish for direct contempt, those who commit such an act, be they juvenile or adult.

We hold that Courts Art. § 3-804 a conferring exclusive original jurisdiction over a juvenile is inapplicable to a case of direct contempt committed in another court and that the ⁵⁷⁹ court in which the contempt occurs possesses full power to deal with the contemptuous juvenile in the same manner as it would any adult person who had committed a similar offense. Apparently only four other jurisdictions having statutes conferring "exclusive jurisdiction” over juveniles upon the juvenile court, have been confronted with the question of whether a juvenile may be punished for direct contempt by the court in which the contempt is committed, Bryant v. State, 256 Ind. 587 , 271 N.E.2d 127 (1971), In Re Williams, 306 F. Supp. 617 (D.D.C. 1969), Application of Balucan, 44 Hawaii 271 , 353 P. 2d 631 (1960), Young v. Knight, 329 S.W.2d 195 , 77 A.L.R.2d 994 (1959), and each has arrived at the same conclusion as do we. Although we have held herein that trial judges may summarily punish juveniles for direct contempt, they, however, should bear in mind, in meting out punishment, that they are dealing with a juvenile. Lastly, the appellant contends that Judge Rasin should not have conducted the contempt proceeding inasmuch as he was the judge who was reviled by appellant.

To support his argument appellant cites Mayberry v. Pennsylvania, 400 U. S. 455 , 91 S. Ct. 499 , 27 L.Ed.2d 532 (1971), and attacks State v. Roll, 267 Md. 714 , 298 A. 2d 867 (1973). In Mayberry , at the end of a twenty-one day trial, the judge found Mayberry guilty of eleven criminal contempts and sentenced him to “not less than one nor more than two years for each of the 11 contempts or a total of 11 to 22 years.” The Supreme Court of Pennsylvania affirmed in a split decision, 434 Pa. 478 , 255 A. 2d 131 (1969). The Supreme Court of the United States granted certiorari. During the course of Mayberry’s trial he hurled a series of opprobrious epithets at the trial judge including such remarks as, “You dirty sonofabitch”; “You ought to be Gilbert and Sullivan the way you sustain the district attorney every time he objects to the questions”; “[You are a] dirty, tyranical old dog”; “I ask your Honor to keep your mouth shut while I’m questioning my own witness”; “What are you working for?

The prison authorities, you bum?”; “Go to hell. I don’t give a good God damn what you suggest, you stumbling dog”; “You started ⁵⁸⁰ all this bullshit”; “This isn’t the Spanish Inquisition” and remarks of similar ilk all patently calculated to vilify and defile the trial judge. The Court, speaking through Mr. Justice Douglas said, at 462-63: “These brazen efforts to denounce, insult, and slander the court and to paralyze the trial are at war with the concept of justice under law. Laymen, foolishly trying to defend themselves, may understandably create awkward and embarrassing scenes.

Yet that is not the character of the record revealed here. We have here downright insults of a trial judge, and tactics taken from street brawls and transported to the courtroom. This is conduct not ‘befitting an American courtroom,’ . . . and criminal contempt is one appropriate remedy.” The Court further stated, at 466:. “Insults of that kind are apt to strike ‘at the most vulnerable and human qualities of a judge’s temperament.’ Bloom v. Illinois, 391 U. S. 194, 202 .” The Court concluded that the facts in Mayberry required that the “defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.” We find Mayberry to be factually inapposite. There the contemnor was the accused conducting his own defense.

Here the appellant was a “self-subpoenaed” witness in Moody’s case. Moreover, the remarks made by appellant in the case now before us, while contemptuous, do not reach the high water mark of Mayberry. Mayberry does not hold that in all cases of contempt committed in facie curiae the trial judge is ipso facto disqualified from conducting the contempt proceeding. Both Mayberry and Roll suggest that if the judge waits until the end of the trial, however, before he proceeds against the contemnor it is the better practice to have a different judge conduct the contempt hearing.

Criminal contempt proceedings before another judge are mandated, however, only in those extreme situations where ⁵⁸¹ the “personal stings” delivered by the contemnor are of such intensity, as in Mayberry, supra, as to cast a reasonable suspicion that the trial judge would conduct the contempt proceeding in a vindictive manner in order to sate his own personal grievance against the contemnor. Obviously each case must be judged by its own facts. Our perusal of the record in the instant case convinces us that Judge Rasin did not proceed against the appellant out of revenge, malice, or any other unworthy motive, nor do we perceive any reason why he should have disqualified himself. In fact, the record demonstrates that the judge not only conducted the contempt proceedings with dispatch, after the contempt had occurred, but exercised an admirable “Jobian” restraint.

We find nothing in State v. Roll, supra, that is in conflict with Mayberry . In Roll, supra, Judge Digges said, at 733: “And, while not required, when a judge waits until the end of the trial, it is generally wise to ask a fellow judge to rule on the nature of the conduct of the contemnor if it has in it elements of personal attack upon the judge.” Mayberry used substantially the same words. Mr. Justice Douglas stated, at 463-64: “Where, however, he [the trial judge] does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place.” Judgment affirmed. APPENDIX A. “(Friday, March 29th, 1974 proceedings during Moody trial) 1 (Judge [George B.] Rasin asked the Court to inquire of a man seated in the Court Room what his name was, as he had been making a disturbance in the Court Room while Officer ⁵⁸² Mullins was testifying.

Mr. Pinder stated the man said he would not give his name to anyone unless he was told whether he would be put on the witness stand or not. Judge Rasin then told the Jury we would be taking a recess at this time. Judge Rasin then asked if the Officer in the Court Room would take the man into custody for a moment. The jury went to their Jury Room.) * * * Judge Rasin: Who is he?

Deputy Metcalfe: Calvin Thomas. Judge Rasin: That’s Calvin Thomas? Deputy Metcalfe: Yes sir. Chum Chum.

He’s known as Chum Chum. Judge Rasin: Now Mr. Thomas, you may remain in the Court Room and watch the proceedings, but you are not to hold your hands up, you are not to point to anyone, you are not to say anything to anybody. Otherwise we will have to remove you. Because I didn’t know what all these gyrations were that you were going through, holding your hand up like that, and doing like that.

Spectators can watch, but they are not to raise any questions as to what the case is all about. If you just want to watch it you — Calvin Thomas: May I get on the stand? Because the watch is mine. It’s not Larry’s.

The watch is mine. Mr. Campen [Moody’s defense counsel]: I will call the man as a witness. Judge Rasin: You will call him as a witness? Mr. Campen: Quite obviously, I will ask him to be held as a material witness.

Judge Rasin: Alright. Then Sheriff, will you take him into custody and keep him available as a witness in this case, outside the Court Room, since all witnesses have been sequestered. Calvin Thomas: Man, I can take myself. Judge Rasin: Has he got the shakes or something?

Calvin Thomas:.......That’s right. I do. ⁵⁸³ (Mr. Thomas was taken from the Court Room. After recess the Moody case was continued. During the Defense Case, Mr. Campen called Calvin Thomas as his witness.) Judge Rasin: Come inside the rail please, Mr. Thomas.

Mr. Parks, are you his attorney? Mr. Parks: Yes, Your Honor. Clerk: Raise your right hand. Your right hand.

Calvin Thomas: Oh, right hand. Clerk: Do you solemnly promise and declare under penalty of perjury the testimony you give the Court and the Jury in the matter now pending will be the truth, the whole truth, and nothing but the truth? Mr. Thomas: I don’t swear, but I will tell the truth. Mr. Clerk: You will affirm?

Mr. Thomas: Dig ya’man! Mr. Parks: At this juncture I would like the record to show ... I have advised [appellant] of his right not to testify in this case, and to answer any questions that may tend to incriminate him, about any matters that may tend to incriminate him. But I would request that the Court further advise him.

Judge Rasin: Mr. Thomas, — Mr. Thomas: Yes? Judge Rasin: There are charges pending against you — Mr. Thomas: I know it, Mr. Rasin. Judge Rasin: Now wait a minute. You listen to me.

You have a Constitutional right not to say anything that might — Mr. Thomas: Incriminate me. Judge Rasin: Incriminate you, that is, could be used against you at your trial. Mr. Thomas: I know what it means. Judge Rasin: And your attorney, Mr. Parks, is here.

He says that he has advised you, and now the Court is advising ⁵⁸⁴ you, that you do not have to testify, that is you don’t have to answer — Mr. Thomas: I know that. I know what my rights are. Judge Rasin: Just a moment. Just a moment, Mr. Thomas.

You don’t have to answer any questions that could possibly get you into trouble later on for your own trials. Now you have a perfect right to answer if you want to, but you don’t have to answer. Now you say you understand your rights? Is that correct?

Mr. Thomas: I dig it. Judge Rasin: Now let me ask you this. Have you consumed any alcohol within the last 24 hours? Mr. Thomas: What kind?

Rubbing alcohol? Dig it! Judge Rasin: Any kind of alcohol — rubbing alcohol, or beer, or wine, or any kind of whiskey? Mr. Thomas: Or reefers?

No. I haven’t. Judge Rasin: No alcohol? Mr. Thomas: No alcohol. Judge Rasin: Have you smoken — have you smoked.any marijuana, or reefers, or joints, or whatever you call them — Mr. Thomas: No. Judge Rasin: — within the last 24 hours?

Mr. Thomas: In the last 24 days. Judge Rasin: No, in the last 24 hours. Mr. Thomas: No, not in the last 24 hours. Judge Rasin: Have you