Dudley v. State, 86-269
| Citation | 12 Fla. L. Weekly 1950,511 So.2d 1052 |
| Decision Date | 11 August 1987 |
| Docket Number | No. 86-269,86-269 |
| Parties | 12 Fla. L. Weekly 1950 Wendy DUDLEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Steven T. Scott, Asst. Atty. Gen., for appellee.
Before HUBBART and BASKIN and FERGUSON, JJ.
This is an appeal from a conviction and sentence for direct criminal contempt. The contempt conviction stems from the failure of the contemner, as a pretrial custody release custodian, to produce in court, as ordered, the body of a criminal defendant for trial below on drug trafficking charges. The case raises novel and important issues concerning the authority of a trial court to enforce, through contempt proceedings, pretrial custody release orders entered in criminal cases. We conclude, based on the circumstances on this case, that the evidence adduced below was insufficient to support the instant contempt conviction, and, accordingly, we reverse.
The facts relevant to the instant contempt conviction are as follows. On September 12, 1985, the state attorney filed an information below charging one Kevin Patrick Brown--not a party to this appeal--with trafficking in cocaine, a serious felony in Florida carrying a minimum mandatory sentence of fifteen years imprisonment. § 893.03(2)(a), Fla.Stat. (1985). Brown had apparently been arrested about three weeks previously at the Miami International Airport in possession of approximately 400 grams of cocaine. Pretrial bail was set in the case, but Brown could not post it and, accordingly, remained in custody at the Dade County Jail. The pretrial bail was subsequently reduced by the court, but again Brown was unable to post it and remained incarcerated.
Brown reapplied to the trial court for a further reduction of his pretrial bail and for a custody release. The trial court conducted a full evidentiary hearing on this application and thereafter granted the request. Specifically, the trial court reduced Brown's pretrial bail to $150,000 and, in addition, released Brown in the custody of his cousin, Mrs. Wendy Dudley, the contemner in the instant contempt proceeding. It was made to appear at this hearing that Brown was a young unmarried Bahamian citizen who resided with his family in The Bahamas; Mrs. Dudley, on the other hand, was a resident of the United States and she lived with her husband and family at a home in Dade County, Florida. The trial court made it crystal clear to Mrs. Dudley that she was responsible for Brown's appearance at all court hearings in connection with the drug trafficking charge--that she was liable to go to jail for six months and be fined $500 if Brown failed to appear at any court hearing, including trial, in the case--and that she should "call" the state attorney's office and the court if she had "any inclination" that Brown would not appear in the case when required. Mrs. Dudley, however, was given no telephone numbers to reach the state attorney or the court either during regular business hours or on an emergency basis. The court thereafter set Monday, January 27, 1986, at 9:00 A.M. as the next court hearing in the case.
On December 26, 1985, approximately one week later, Brown posted the $150,000 bail and was released from jail in the custody of Mrs. Dudley. On Monday, January 27, 1986, at 9:00 A.M., Mrs. Dudley appeared in court at the scheduled court hearing but without Brown as ordered by the court. The trial court immediately cited Mrs. Dudley for direct criminal contempt of court based on Brown's nonappearance. The court thereafter conducted a full evidentiary hearing on the contempt citation at which time Brown's attorney, Brown's bail bondsman, Mrs. Dudley's husband, Mrs. Dudley's daughter, and Mrs. Dudley herself testified.
Brown's attorney, Phillip Carlton, Jr., testified that he got a telephone call from Mrs. Dudley at 9:30 A.M. the previous Saturday, two days prior to Brown's scheduled court appearance. Mrs. Dudley informed him that Brown had disappeared and she didn't know where he was, that she had just discovered this disappearance that morning when she awoke and found that Brown had left her house where he had been staying, and that the last she had seen him was the previous night at 10:30 P.M. just before she went to bed. She told Mr. Carlton that she had been instructed to call the judge if Brown disappeared, but said, "I don't think I can do it; it is ... Saturday." (Tr. 20). Mr. Carlton recommended that she "call the operator or go get the phone book or something" to obtain "an office chambers number" for the trial judge, David Gersten, because he felt the judge's residence number would most likely be unlisted. Mrs. Dudley agreed to do this as she had not, at that point, made an effort to contact the trial judge. Thereafter, Mr. Carlton called Brown's bail bondsman, Mr. Charles Flowers, who had already been notified by Mrs. Dudley of Brown's disappearance; he also attempted to call Brown's sister in The Bahamas, but found that the phone there had been disconnected.
Brown's bail bondsman, Charles Flowers, testified that he had been contacted by Mrs. Dudley at 7:30 A.M. on the same Saturday--two hours before Mr. Carlton had talked to Mrs. Dudley--and learned that Brown had just disappeared. Mr. Flowers gave Mrs. Dudley a phone number at which she eventually reached Mr. Carlton. He then attempted to call Brown's sister in The Bahamas, but found the phone was disconnected. He eventually, through a contact in Nassau, reached the sister's husband in The Bahamas; the husband had no idea where Brown was and said that he could not believe that Brown had skipped as it was not like Brown. Mr. Flowers then called Mrs. Dudley for more leads; Mrs. Dudley was crying on the phone and said no friends ever came around to see Brown.
Mrs. Dudley's husband, Isaac T. Dudley, testified that Brown had stayed with him and his wife at his home in Miami for approximately three weeks prior to the court hearing that day. He said he was with Brown the previous Friday night--two and a half days prior to the court hearing--until 11:30 P.M. watching television at his house. The next morning he and Mrs. Dudley discovered that Brown was gone; he told Mrs. Dudley that she had better report Brown's disappearance. Mrs. Dudley's daughter--Sheila McCady--testified that she had been at her mother's house that same Friday night until 8:00 P.M. and confirmed that Brown was there at that time.
Mrs. Dudley also testified at length at the contempt hearing. She stated that Brown had been living at her house up until two days ago--the prior Saturday morning--when she woke up to discover that Brown, who always stayed around the house, had disappeared with his belongings. She had last seen Brown, she said, the night before at 10:30 P.M. at her house watching television when she went to bed. He was not there at 7:00 A.M. the next morning when she prepared to leave the house for work; his bed, she said, had not been slept in. She then told her husband, went to her work at a convalescent home, and there made a number of telephone calls. She called Mr. Flowers and Mr. Carlton that morning and notified them of Brown's disappearance. She also gave the following testimony about her claimed efforts to notify the trial judge:
"Q. [Mr. Yedlin]: Did you speak to the bail bondsman?
A. Not right away. As soon as the secretary came, when I told her I didn't have the Judge's number--I remember he told me to call his office. So when Mr. Carlton came on, I asked him for the Judge's telephone number, anything, so he gave me the Judge's name and I called information and got the number from them for the switchboard operator at the courthouse. Nobody answered that phone.
Q. Now, by 9:30 you had already informed the bondsman?
A. And Mr. Carlton.
Q. And Mr. Carlton?
A. Yes.
Q. After you informed the bondsman and Mr. Carlton, did you work the rest of the day?
A. I tried to call the Judge again but I couldn't get across."
(Tr. 9-10.)
She further stated that she did not remember that she was to notify the state attorney's office if Brown disappeared. "All I remember," she said, "is the [j]udge say get in contact with him." She also attempted, she said, to telephone Brown's mother in the Bahamas, but found that the phone there had been disconnected; she also called other family members in The Bahamas but never got through to anyone. She was cross examined extensively by the state attorney but stood by prior testimony; she had no prior criminal record.
The defense then rested, the state presented no evidence, and the case was then argued on the merits by counsel for both the state and Mrs. Dudley. At the conclusion of the hearing, the trial judge dictated an order into the record--an order which was later reduced to writing--which found Mrs. Dudley guilty of criminal contempt. The trial judge's basis for reaching this conclusion was: (1) Mrs. Dudley had been specifically warned by the trial judge that she could go to jail if she failed to produce Brown for required court hearings, (2) Mrs. Dudley undertook the responsibility of being Brown's custodian with that warning in mind, (3) Mrs. Dudley failed to produce Brown for a required court hearing, (4) Mrs. Dudley "upon learning of [d]efendant Kevin Brown's absence ... did not fulfill her [c]ourt ordered obligation to contact:
[a] [t]he [s]tate [a]ttorney's office
[b] [t]he [c]ourt (through the [e]mergency judge)
[c] [t]he police department
[d] [t]he [i]mmigration authorities."
(R. 12-13), and (5) Mrs. Dudley's testimony at the contempt hearing was rejected because she was "not a credible witness." (R. 12). This being so, the trial court concluded its contempt order as follows:
"13. That the Custodian/Contemner is in willful violation of an order of this Court and the Custodian/Contemner had the...
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