Thomas v. State

MOTZ, Judge. Appellant, Charles Leon Thomas, Jr., was charged with unauthorized use of a motor vehicle. Appellant appeared in the Circuit Court for Montgomery County for a hearing on a bench warrant. During that hearing, the circuit court twice held appellant in contempt of court; two thirty day sentences ⁴⁹ were imposed on appellant.

On appeal, appellant raises a single question: Did the lower court improperly hold appellant in direct contempt of court? The facts giving rise to this appeal are straight forward and undisputed. On April 13, 1993, appellant appeared before the circuit court, as a result of a bench warrant. The judge initially asked appellant why he had failed to appear in court on February 12, 1993.

When appellant responded that he didn’t know where he was on that date, the court asked, “what is the State’s position on bond?” The prosecutor responded that a cash bond was suggested but “it doesn’t have to be a high cash bond.” Shortly thereafter, the following colloquy took place: [DEFENSE COUNSEL]: Your Honor, Mr. Thomas tells me that he is living with his aunt again in Silver Spring. Or Wheaton? DEFENDANT: No. Wheaton, Maryland. [DEFENSE COUNSEL]: In Wheaton. I’m sorry.

THE COURT: All right. DEFENDANT: 3209 Janet Road. [DEFENSE COUNSEL]: Janet Road in Wheaton. THE COURT: 3209. Now, are you on a sentence somewhere else?

DEFENDANT: No, no. THE COURT: I’m sorry. I realize I am interrupting your busy schedule bringing— DEFENDANT: I’m all right, man. Man, what you— THE COURT: —you here today, Mr. Thomas, but we have a little business to try to attend to— DEFENDANT: Yes, you know.

THE COURT: —if it is all right for you. Now, you either are or you are not on a sentence somewhere else. Are you? DEFENDANT: I am not on a sentence nowhere else. ⁵⁰ THE COURT: You are not on a sentence, all right.

I think I will set a $3,500.00 cash bond. DEFENDANT: That is it? THE COURT: That is it. DEFENDANT: Damn, so small.

Fuck that judge, man. THE COURT: Bring him back. DEFENDANT: —fucker. THE COURT: Bring him back.

Sir, I heard what you said and— DEFENDANT: So what, man. You— THE COURT: —so that the record is clear I am holding you in contempt of this Court and I am sentencing you to 30 days in jail for contempt. You can take— DEFENDANT: Yes, whatever. THE COURT: —it from there.

Thirty days on this case with— DEFENDANT: Whatever. Whatever. THE COURT: All right, fine. One more whatever out of you, sir, and you are going to get another 30 days, all right.

DEFENDANT: Whatever. THE COURT: That is it, 30 more. Sixty days. Take him away.

DEFENDANT: Whatever. That’s 90, ain’t it? THE COURT: Sixty will be enough. So that the record is clear on this just in case the recorders didn’t .pick up his language he indicated that I could go and [have] intercourse myself.

He didn’t use that word but another word, a four letter word. Clearly I could hear it. Then when he came back out in here he had another what I consider to be contemptuous attitude toward this Court. Good luck in representing him, Mr. PD.

DEFENDANT: That’s just bullshit, man. ⁵¹ (Whereupon, the hearing was concluded.) 1 Appellant asserts that reversal is required because (1) he was not given “an opportunity to speak” prior to imposition of the first finding of contempt, and, if given that opportunity, he might “well have apologized to the court;” (2) the second contempt finding “was an arbitrary and oppressive application of the court’s criminal contempt power;” and (3) contrary to Md.Rule P3(b), there was no written order reciting the facts and the basis for the court’s findings. At issue in this case are two judgments of direct, criminal contempt, arrived at after summary proceedings. “A ‘direct contempt’ means a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings.” Md.Rule Pla. It is to be contrasted with a “constructive contempt,” which 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 Plb. A criminal contempt is “punishment for past misconduct which may not necessarily be capable of remedy” and so its penalty need not contain a purging provision.

State v. Roll and Scholl, 267 Md. 714, 728 , 298 A.2d 867 (1973). On the other hand, civil contempt proceedings are “remedial” and “intended to preserve ... the rights of private parties” and “coerce future compliance” and so a penalty for civil contempt “must provide for purging.” Id. See generally Betz v. State, 99 Md.App. 60 , 635 A.2d 77 . Summary punishment of direct, criminal contempt, ie. without any right to notice, opportunity to be heard, right of counsel, or trial by jury, is an ancient right designed to fill the “need for immediate penal vindication of the dignity of the court....” Cooke v. United States, 267 U.S. 517, 536 , 45 S.Ct. 390, 395 , 69 L.Ed. 767 (1925).

Because it is contrary to the usual procedure constituting due process, id., it “always, ⁵² and rightly, is regarded with disfavor,” Sacher v. United States, 343 U.S. 1, 8 , 72 S.Ct. 451, 454 , 96 L.Ed. 717 (1952) and to be used only in “unusual situations ... where the instant action is necessary to protect the judicial institution itself.” Harris v. United States, 382 U.S. 162, 167 , 86 S.Ct. 352, 356 , 15 L.Ed.2d 240 (1965). This does not mean, however, that in order to constitute direct, criminal contempt punishable by summary proceedings the contemptuous conduct must “bring to a halt the proceedings in progress.” Mitchell v. State, 320 Md. 756, 763 , 580 A.2d 196 (1990). Rather, [i]t takes but a moment of time to hurl a vile epithet at a judge or jury, but such conduct in a court room will not be tolerated, and may properly be addressed summarily. Id.

It seems clear that the language that formed the basis for the first judgment of contempt, i.e., “Fuck that judge” and calling the judge a “fucker,” did, in fact, constitute precisely the sort of “vile epithet” that is properly considered a direct, criminal contempt. Indeed, appellant does not argue to the contrary. What appellant asserts is that he was not given a “brief opportunity” for allocution “prior to imposition of the sentence” for the first contempt here, as was his asserted right under Mitchell v. State, supra. He claims that if he had been given this opportunity, he “might well have apologized to the court.” This argument is not persuasive for two reasons.

First, although the Court of Appeals in Mitchell did hold that in that case the “alleged contemnor” should have been given a “brief opportunity for allocution” prior to imposition of sentence for the alleged direct, criminal contempt, the court expressly noted that due process did not require “that an alleged contemnor must, in every instance, be given” this opportunity. 320 Md. at 768 , 580 A.2d 196 . Rather, the Mitchell court specifically recognized: In some cases, affording a defendant an opportunity to speak in explanation of his conduct may only invite additional invective. Furthermore, where the conduct or speech is ⁵³ as direct or unequivocal as it was in the case before us, there may be little or no room for helpful explanation. Id. at 768 , 580 A.2d 196 .

The record clearly indicates that the case at hand was one in which affording the defendant an opportunity to speak only invited “additional invective” and the nature of his contemptuous speech left little room for “helpful explanation.” Thus, this was not the sort of case in which the alleged contemnor must be given an opportunity for allocution before imposition of sentence. Moreover, even if a “brief opportunity for allocution” was required prior to imposition of the sentence here, the transcript reflects that appellant was afforded such an opportunity. Indeed, appellant spoke, not once, but twice before sentence for the first contempt was imposed, and several times after that: DEFENDANT: Damn, so small. Fuck that judge, man.

THE COURT: Bring him back. DEFENDANT: —fucker. THE COURT: Bring him back. Sir, I heard what you said and— DEFENDANT: So what, man.

You— THE COURT: —so that the record is clear I am holding you in contempt of this Court and I am sentencing you to 30 days in jail for contempt. You can take— DEFENDANT: Yes, whatever. THE COURT: —it from there. Thirty days on this case with— DEFENDANT: Whatever.

Whatever. (emphasis added). On none of these occasions did he “become contrite” or “effectively communicate an appropriate apology.” Id. Instead, he continued his contemptuous behavior.

For all of these reasons, appellant’s first asserted basis for reversal is meritless. His second, that the other contempt judgment was an “arbitrary and oppressive application of the court’s criminal contempt power,” is not so easily disposed of. The conduct ⁵⁴ leading to the second contempt sentence was not as clearly contemptuous as that leading to the first contempt sentence. The “whatevers” were obviously annoying and far too casual to be appropriate in a judicial setting; however, it is impossible to conclude from the cold record alone that the “whatevers” constituted direct, criminal contempt.

See Roll and Scholl, 267 Md. at 728 , 298 A.2d 867 ; Robinson v. State, 19 Md.App. 20, 27 , 308 A.2d 712 (1973). See also, Bloom v. Illinois, 391 U.S. 194, 205 , 88 S.Ct. 1477, 1484 , 20 L.Ed.2d 522 (1968) (citation omitted). As we noted in another criminal contempt case, when concluding that the transcript did not support the finding of contempt: there are limitations [as] to what a court reporter may transcribe in particular situations. Thus, it may be in this case that the transcript does not reflect appellant’s angry tone of voice, or a menacing demeanor, or possibly threatening or offensive gestures directed toward the court.

Robinson, 19 Md.App. at 28 , 308 A.2d 712 . If the circuit court had, in its order, included detailed findings as to why appellant’s street talk, the “whatevers,” required a court prohibition or that the “whatever” after the court prohibition was accompanied by the sort of threatening gestures, etc. outlined in Robinson , then we might be able to conclude that there was sufficient evidence for the second contempt judgment. This is, of course, why the order of contempt required by Md.Rule P3b is so important. That rule specifically provides: 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 respect thereto. Md.Rule P3b. (emphasis added).

The purpose of the rule is to enable an appellate court to determine “whether a [direct, criminal] contempt has been committed and whether the court had jurisdiction to punish it,” Jones v. State, 32 Md.App. 490 , ⁵⁵ 497, 362 A.2d 660 (1976). See also Editor’s