Forbes v. State, 4D05-1554.
| Decision Date | 26 July 2006 |
| Docket Number | No. 4D05-1554.,4D05-1554. |
| Citation | 933 So.2d 706 |
| Parties | Stacey FORBES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William Gelin of Tribune Legal Services, LLC, Fort Lauderdale, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
Stacey Forbes, a prospective juror, was found guilty of criminal contempt and sentenced to four months in the Broward County Jail for responding untruthfully to a written questionnaire concerning prior arrests and failing to disclose a pending criminal charge during jury selection. He appeals the contempt judgment on procedural grounds and challenges the sufficiency of the evidence to support his adjudication and punishment for criminal contempt. We affirm.
Nineteen-year-old Stacey Forbes was summoned for jury duty. He appeared at the Broward County Courthouse and was sworn for voir dire in a criminal case. Before questioning each juror individually, the court asked the prospective jurors to raise their hands if they had any pending criminal charges; no one did. The court then asked each juror to respond verbally to a written questionnaire. The court advised the venire to "err on the side of caution" if they were uncertain what the questions required, and told the jurors that they could request a private meeting if they were embarrassed about sharing certain information.
Appellant was the first member of the venire to be called upon to respond to the written questionnaire. Question 15 asked: "Have you or any member of your family ever been arrested?" Appellant read the question aloud: Appellant was not corrected on his misreading of Question 15 nor questioned further about his response by either the state or the defense.
After both parties questioned the prospective jurors and selection began, the state alerted the court that it had discovered that appellant had a prior juvenile arrest and a pending criminal charge. The state moved to strike appellant for cause. The court said that "if he's been less than candid with this court, he's not leaving today."
The court then called appellant into the courtroom, where the following exchange took place:
Court: Do you read and write English?
Forbes: Yes.
Court: And you read the form, the questionnaire, am I right?
Forbes: Yes.
Court: And you answered yes — and you answered no to question number fifteen, have you or any member of your family ever been arrested?
Forbes: Yes.
Court: Well, do you have anything else you'd like to tell us?
Forbes: I got arrested for possession of marijuana.
Court: What else?
Forbes: That's it.
The court reminded appellant that before questioning the jurors individually, it asked them to advise the court if they had any pending criminal charges. The court asked him:
Forbes: Yes.
. . . .
Court: So it's clear, that you do have charges pending against you — felony charges; is that right?
Forbes: I got arrested.
Court: Yeah. For? Possession of more than twenty grams of marijuana; right?
Forbes: Yeah.
Court: Okay. And that's a felony charge. So you have felony charges pending against you; correct?
Forbes: Yes.
When the court reminded appellant that the questionnaire also asked if any family member had ever been arrested, appellant initially said "Nobody in my family," but then added, "My dad, yeah." Appellant seemed confused when the court told him that they had discovered that he had been arrested twice. He asked, "Twice?" Whereupon, the court said:
You know what, I've had enough of him. Put him in the back of the courtroom. You're not leaving.
After striking appellant for cause, the court ordered him to remain in the back of the courtroom for a contempt proceeding. Later, the court asked appellant if he could afford a lawyer, explaining that there would be a direct criminal contempt proceeding. Appellant asked to call his mother to see if she could help him find a lawyer. The court deputy later advised the court that appellant's mother was unable to obtain an attorney for appellant.
Shortly thereafter, the court advised appellant that it was holding direct criminal contempt proceedings for perjury, for lying to the court under oath regarding his past criminal record, prior arrests, and his dad's prior arrest. The court asked appellant to explain why he did not answer truthfully when asked about pending charges and prior arrests. Appellant explained:
Okay. Well, Your Honor, honestly, truthfully, why this happened is because I was kind of nervous when I was reading the paper and I didn't get to read it like fully. I didn't no [sic] it required it, so I said no. But I'm sorry for all this disrespect I brung [sic] to your courtroom and for the holdup. I didn't intentionally meant [sic] for that to happen.
When the court asked appellant why it should not hold him in contempt, he responded:
Honestly, I have poor reading skills.
I didn't get to finish high school, so — well, that particular question you read out loud, nice and clear, I didn't understand it that well.
The court allowed appellant an opportunity to present mitigating factors regarding a sentence. It then found beyond a reasonable doubt that appellant knowingly lied under oath to the court regarding his individual and family arrest history and his current criminal charge. The court held him in direct criminal contempt of court and sentenced him to four months in the Broward County Jail. Later, the court issued a written order reciting the facts and finding beyond a reasonable doubt that appellant knowingly lied under oath.
Appellant challenges the contempt judgment on both procedural and substantive grounds. As to procedure, he argues that the trial court erred in holding direct criminal contempt proceedings under rule 3.830 of the Florida Rules of Criminal Procedure, instead of indirect criminal contempt proceedings under rule 3.840. Consequently, he was denied the greater due process rights afforded by rule 3.840. He further argues, on substantive grounds, that the evidence was insufficient to support his conviction and sentence for criminal contempt.
Criminal contempt is "[a]n offense against the authority or the dignity of a court or of a judicial officer," Ex parte Earman, 85 Fla. 297, 95 So. 755, 760 (1923), or "any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity." Ex parte Crews, 127 Fla. 381, 173 So. 275, 279 (1937).
We have previously explained that:
The major purpose of the law of contempt is to maintain and preserve the dignity of the judiciary and the orderly administration of justice. The standard to be applied in determining whether conduct is contemptuous is an objective one based upon a determination of the conduct's tendency to hinder the administration of justice, rather than a subjective one concerned with the sensitivities of a particular judge. Importantly, as noted above, the conduct alleged to be contemptuous must be calculated to cause harm.
Murrell v. State, 595 So.2d 1049, 1050 (Fla. 4th DCA 1992).
At the outset, we note that direct criminal contempt proceedings, as opposed to indirect contempt proceedings, were appropriate in this case. Direct contempt occurs when a person speaks words or commits acts in the presence of the court or a judge acting judicially or when a person resists or interferes with the lawful authority of the court in its presence or so near the court or judge as to interrupt or hinder judicial proceedings. See Earman, 95 So. at 760. Indirect contempt, by contrast, occurs "not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge." Id.
Florida Rule of Criminal Procedure 3.830 provides: "A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court." Even though appellant does not dispute that his conduct occurred in the presence of the court, he argues that a charge of perjury should not be addressed summarily by direct criminal contempt proceedings. However, courts have long recognized the power to punish persons for criminal contempt when perjury is established. See Emanuel v. State, 601 So.2d 1273, 1274 (Fla. 4th DCA 1992); Martin v. Case, 231 So.2d 279 (Fla. 4th DCA 1970). The supreme court, in State ex rel. Luban v. Coleman, 138 Fla. 555, 189 So. 713, 714 (1939), enunciated a three-prong test to determine if perjury is validly addressed by a direct criminal contempt proceeding: whether (1) the alleged false answers had an obstructive effect, (2) there existed judicial knowledge of the falsity of the testimony, and (3) the question was pertinent to the issue.
Here, the three-part test is met. First, appellant's false responses to the court's questions interrupted jury selection, requiring the court to take time to inquire further of him. Second, the court was presented with irrefutable evidence that appellant had been arrested before and was...
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