Carroll v. State, 8 Div. 989

• Decision Date: 16 August 1977
• Docket Number: 8 Div. 989
• Parties: John T. CARROLL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 723

350 So.2d 723

John T. CARROLL v. STATE.

8 Div. 989.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

As Corrected on Denial of Rehearing Oct. 4, 1977.

Sherman B. Powell, Jr., for Powell & Powell, Decatur, for appellant.

William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

Petitioner was adjudged guilty of contempt of court for "disruptive misconduct in open court in the courtroom during judicial proceedings, i. e., abusive and obscene language to a female officer of the court", and was sentenced to five days confinement in the Morgan County Jail and fined fifty dollars.

On December 2, 1976, a petition for a writ of certiorari was transferred from the Court of Civil Appeals to the Supreme Court of this state. The Supreme Court granted the writ and this case was submitted on February 15, 1977. On July 6, 1977, the case was transferred to this court on a determination by the Supreme Court that this court has jurisdiction.

Essentially there are two questions which must be answered on this appeal: (1) Did the petitioner's use of abusive language to the court reporter constitute contemptuous conduct, and (2) were due process requirements met in the determination of petitioner's guilt by the lower court.

On November 2, 1976, Ms. Lesa Nelson was acting as a court reporter for Judge K. J. Griffith who had been appointed to assist Judge C. Bennett McRae in the Morgan County Court. According to Ms. Nelson, Judge Griffith had left the courtroom to make a phone call. Because the other court reporter had also left the courtroom, Ms. Nelson remained because she thought the judge "might want something taken".

While sitting in the courtroom, Ms. Nelson noticed the petitioner come up to her through the swinging doors near where the jury box was located. Although it does not appear in the transcript of the testimony, the petition for writ of certiorari avers that the petitioner was a venireman duly called to serve in the Morgan County Court for the week of November 1, 1976. Ms. Nelson stated that the petitioner had previously complained to Judge Griffith about all the delays, observing that his time was valuable.

Petitioner told Ms. Nelson that he had been noticing her ever since he came into court and he remarked that she was pretty. He stared at her chest and stated that he noticed she had freckles on her chest. Ms. Nelson put her hand on her chest as she felt uncomfortable. Petitioner then stated, "Do you have freckles on your titties?" Although Ms. Nelson explained that was personal, petitioner insisted on an answer. Ms. Nelson told him it was none of his business and then began to explain why court took so long, apologizing to him for any inconvenience.

Petitioner then stated to Ms. Nelson how she was trying to change the subject, stating, "Aren't you going to answer me." Petitioner continued by inquiring, "Would you scream if I leaned over and kissed you?" When Ms. Nelson responded "Yes", petitioner stated, "Well, I am and you're going to have to scream." At that point, petitioner leaned over and she pushed him away. He told her that "I want to give these people out here amuse them while they are having to wait." After that comment, Ms. Nelson left the courtroom and told what had happened to Judge McRae's secretary. Ms. Nelson also stated that the petitioner told her he wished that she had been convicted of a crime when he was on the jury because he would let her go.

Judge McRae then brought the petitioner into his chambers and informed petitioner that:

" . . . the purpose of me having you come in my office is to consider if I should hold you in contempt of court and, secondly, to consider whether I should report your actions, if it has been improper, to the County Solicitor or the District Attorney or possibly the Sheriff, and to see if there are any actions that should be taken that would be for them to determine."

The petitioner was given an opportunity to obtain counsel and to explain his conduct or his version of what had happened. Petitioner admitted knowledge of the remarks and conduct the judge had reference to but refused to tell Judge McRae what those comments were. Petitioner was then taken to the Court Reporter's office. Ms. Nelson was brought into the judge's chambers and examined by Judge McRae as to the remarks and conduct of the petitioner. Although this proceeding was reported it does not appear that Ms. Nelson was under oath. After Ms. Nelson related the events to Judge McRae, the proceedings moved to the courtroom. The court reporter read to petitioner the testimony of Ms. Nelson.

Upon hearing Ms. Nelson's testimony the petitioner admitted his guilt.

"THE COURT: Or you want to ask anything else? Is there anything you don't understand?

"MR. CARROLL: No, sir. I just want to pay the fine, or go to jail, or whatever the hell you want to do."

The petitioner is fifty years old and an admitted alcoholic. He stated that he had had something to drink that morning as he had every morning but there was no way he could judge how much he had had to drink.

At this stage in the proceedings, Judge McRae again gave petitioner the opportunity to secure counsel. He also advised him of the maximum punishment for contempt. After briefly conferring with Sheriff Ward the petitioner again confessed his guilt. Judge McRae then sentenced petitioner to five days incarceration in the Morgan County Jail and fined him fifty dollars.

I

The initial question this court must answer is whether the conduct of the petitioner in using vulgar language to the court reporter in the courtroom constitutes contempt where the court is in session but the judge is temporarily absent.

Contempt is divided into four classes: (1) Civil or (2) criminal, (3) direct or (4) constructive. The distinction between civil and criminal contempt lies primarily in the purpose for which the proceeding is brought and the sanction is imposed. Civil contempt sanctions seek to compel or coerce compliance with orders of the court in the future, Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965); Ex parte King, 263 Ala. 487, 83 So.2d 241 (1955); Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935); and in failing to do something, ordered to be done by a court in a civil action, for the benefit of opposing counsel. Ex parte National Ass'n for Adv. of Colored People, 265 Ala. 349, 353, 91 So.2d 214 (1956). Criminal contempt sanctions are imposed to punish for an act of past disobedience, to preserve the power and vindicate the dignity of the court, and to punish any act which is in disrespect of the court or tends to obstruct the administration of justice, or which tends to bring the court into disrepute. Ex parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956); Dangel, Contempt, p. 3-4.

The petitioner was apparently a venireman called to jury duty in the Morgan County Court. The record only reveals that while some type of proceedings were being conducted in a civil case in the county court, the judge left the courtroom to make a telephone call. During his absence, petitioner made some remarks to the court reporter which have previously been set forth in this opinion. The language used by petitioner may very well have been obscene and profane within the meaning of Davidson v. State, 19 Ala.App. 77 at 78, 95 So. 54 (1923) defining "obscene" as that which is offensive to chastity and modesty, and Slaughter v. State, 47 Ala.App. 634 at 637, 259 So.2d 840, cert. denied, 288 Ala. 751, 259 So.2d 845 (1972) defining "profane" as to vulgarize and to make offensive to good taste. Title 14, § 11, Code of Alabama 1940 condemns the use of abusive, insulting, or obscene language in the presence of a girl or woman and attaches criminal sanctions to such conduct. Thus the petitioner may be guilty of a misdemeanor carrying a fine of two hundred dollars and a term of imprisonment in the county jail for up to six months.

We have carefully considered the nature of petitioner's conduct and conclude that it tended to diminish or impair the respect due to judicial tribunals and in particular the county court of Morgan County. Petitioner's conduct was not a mere private conversation or flirtation with a female court reporter. Ms. Nelson stated that in attempting to kiss her the petitioner declared:

" 'I want to give these people out here' something to the effect, 'amuse them while they are having to wait.' "

The statements and conduct of the petitioner were not only a personal affront to the court reporter who was "trying to do her job" but an attempt by the petitioner to entertain the people in the courtroom during the judge's absence.

Not only was petitioner's conduct in disrespect of the court but his conduct did, in fact, disturb, obstruct and delay the administration of justice and orderly proceedings of court in the sense that Ms. Nelson, who was waiting in the courtroom because the judge "might want something taken down" had to leave to escape petitioner's unwarranted antics and unwanted attention. Such abuse of court personnel and forum cannot be tolerated.

II

Having determined that petitioner's conduct is contemptuous, we must next consider whether the actions of the judge in ascertaining petitioner's guilt of contempt were correct and in accordance with constitutional and due process standards. Before we can proceed to such a determination we must first ascertain whether petitioner's contemptuous conduct constitutes a direct or a constructive (indirect) contempt.

The distinction between direct contempt (punishable without notice or hearing) and constructive contempt (punishable only upon notice and hearing) involves more than a mere geographical separation.

"Three elements must coalesce in order to remove a contempt from the general category of 'constructive' to the instantly punishable class of 'direct' contempt: (1) The contempt must be committed in the actual physical presence of the court; (2...