Dorsey v. State, 47

CourtCourt of Appeals of Maryland
Citation295 Md. 217,454 A.2d 353
Docket NumberNo. 47,47
PartiesDonnie DORSEY and Roscoe Dorsey v. STATE of Maryland.
Decision Date10 January 1983

Page 217

295 Md. 217
454 A.2d 353
Donnie DORSEY and Roscoe Dorsey
STATE of Maryland.
No. 47.
Court of Appeals of Maryland.
Jan. 10, 1983.

[454 A.2d 354]

Page 218

Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellants.

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.


SMITH, Judge.

In this case petitioners Donnie Dorsey and Roscoe Dorsey contend that a trial court afforded them more due process of law than they believe they were entitled to receive in a contempt matter and hence that the court was deprived of jurisdiction, making their convictions nullities. We shall reject their contentions, including claims that there was insufficient evidence to conclude that court proceedings were disrupted and that they were responsible for any part of the disturbance.

I The case

Maryland Rule P4 concerns constructive contempt. It provides that such proceedings "may be instituted by the court of its own motion, by the State's attorney or by any person having actual knowledge of the alleged contempt." Provision is then made for notice to the defendant. That notice is to include the show cause order and any written statement filed in support of the alleged contempt. Provision is made for the appointment of a prosecutor ("the State's attorney or any other member of the bar") and that the judge who issues the citation shall be disqualified from presiding at the hearing "except where such contempt consists of failure to obey an order or judgment in a civil case" unless the "defendant otherwise consents ...." See Harford Co. Educ. Ass'n v.

Page 219

Board, 281 Md. 574, 380 A.2d 1041 (1977), for an application of the rule.

The two Dorseys and others were being tried on escape charges in the Circuit Court for Anne Arundel County. While awaiting the call of their individual cases for trial they were placed in a confining cell immediately adjacent to the courtroom. About two weeks later Judge E. Mackall Childs, [454 A.2d 355] who presided in the escape cases, filed an order which recited that on February 20, 1980, while he was attempting to try escape cases in the Circuit Court for Anne Arundel County, these individuals were being held in a cell adjacent to the courtroom in which the cases were being tried; that "the noise emanating from the cell in which said individuals were being held was of such volume as to directly interfere with the orderly business of the court"; that "warnings were issued to the inmates of the cell on repeated occasions, but were disregarded by said inmates who became so unruly as to necessitate their removal to the Sheriff's department in the basement of the courthouse"; and that "the business of th[e] court was unnecessarily interrupted and delayed by the conduct of [these] persons." These persons were directed pursuant to the provisions of Rule P4 b(1) to show cause why they should not be held in contempt. The order of Judge Childs referred to the affidavit of an assistant State's attorney which was attached. That affidavit is consistent with the facts as we shall recite them gleaned from the testimony. The order designated the State's Attorney for Anne Arundel County to prosecute the contempt action.

When the matter was called for hearing before Judge Childs the State asked to amend the order, stating:

"[T]hey were charged under Rule P4. However, all the evidence seems to indicate that what was involved was a direct interference and the State would ask the Court to change its Order to Rule P3, which is direct contempt."

The request for amendment was granted.

Page 220

Rule P3 deals with direct contempt. It provides that such a contempt "may be punished summarily by the court against which the contempt was committed." Rule P3 b states:

"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."

Rule P3 c goes on to provide:

"The record in such cases shall consist of

(1) such order of contempt,

(2) any affidavit filed by the defendant,

(3) any affidavit filed by the State's attorney in support of the order of contempt, if the court directed him to investigate or prosecute the contempt, and

(4) any testimony offered."

Defense counsel stated:

"With regard to the change in the contempt papers, Your Honor, I have only one objection, as we pointed out in our pleadings, with the Court in the motion to recuse and the motion for jury trial, is that once the situation has gone beyond a summary proceeding situation, that is, where the Court has to assert its authority at that moment to maintain the decorum of the Court, that less than summary proceedings, excuse me, more than summary proceedings are required. And those proceedings are spelled out in Rule P4, which require the Judge to recuse himself and which require the show cause order and such that was complied with here. And that we could not accept a change in the order which would forego those procedural rights which we are entitled to under that order. So that, I do not know

Page 221

how you want to do it. We have no objection with proceeding with this matter. Call it constructive contempt. Call it direct contempt. But, as the evidence may be adduced to trial. But we wish to maintain those procedural rights which are obtained through Rule P4."

In due season the matter came on for trial before a jury with another judge presiding. The testimony disclosed that during the morning session an assistant State's attorney twice sent word to the guards that noise from the cell was being heard in the courtroom by the presiding judge. During the afternoon session noise was again [454 A.2d 356] heard. A request for the prisoners to quiet down was again sent. The noise level subsided momentarily. It resumed shortly thereafter. Judge Childs testified as to what took place:

"I couldn't hear the exact words that were being said. It was just extremely loud conversation. Ordinary conversation in the bullpen uh, doesn't disturb the procedures of the courtroom at all. But the acoustics are, are poor at best and with all the loud conversation that was taking place in the bullpen, it made it extremely difficult for me to hear what counsel and witnesses were saying."

The judge then asked a deputy sheriff to tell the guards to quiet the prisoners. The message was relayed to another deputy sheriff who then conveyed to the prisoners the request of the judge for them to be quiet. The request was not kindly received. The response was characterized by one individual as "a cheer" and by Judge Childs as a "loud outburst." Donnie Dorsey made an uncomplimentary remark relative to the judge, one not used in polite society. Roscoe Dorsey said the judge would not be telling him what to do. Judge Childs described the noise as having disrupted the court proceedings completely, stating that he was obliged to adjourn court. After the last outburst Judge Childs directed that the prisoners be taken to the lockup in another portion of the building.

Page 222

The jury returned a guilty verdict. The trial judge sentenced each of the petitioners to a term of three months to run consecutively to any...

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