Hammonds v. State

• Decision Date: 03 December 2013
• Docket Number: Sept. Term, 2013.,No. 14,14
• Citation: 80 A.3d 698,436 Md. 22
• Parties: Terry Wayne HAMMONDS v. STATE of Maryland.
• Court: Maryland Court of Appeals

436 Md. 22

80 A.3d 698

Terry Wayne HAMMONDS

v.STATE of Maryland.

No. 14, Sept. Term, 2013.

Court of Appeals of Maryland.

Dec. 3, 2013.

Claudia A. Cortese, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.

Michelle W. Cole, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.

GREENE, J.

In the present case, we are asked to determine whether the trial court abused its discretion when it revoked Petitioner Terry Wayne Hammonds's (“Petitioner” or “Hammonds”) probation for failing to “obey all laws,” when the court determined that Petitioner committed direct criminal contempt of court and violated Maryland Code § 9–303(a) (2002 Repl. Vol., 2005 Cum.Supp.) of the Criminal Law Article (hereinafter “ § 9–303(a)”). Specifically, on appeal, we address (1) whether Petitioner was in direct criminal contempt of court when he tore up a copy of his probation papers while seated next to the exit door in the courtroom following his criminal trial and sentencing, and when there was no finding of contempt by the trial judge at or near the time of the alleged contemptuous act and no evidence showed that Petitioner's action interrupted the proceedings; and (2) whether Petitioner committed a threat within the meaning of § 9–303(a) when he threatened to harm a witness or victim but did not convey that threat to the witness or victim or make the threat with the belief that the threat would be communicated to the witness or victim. We shall hold that the record does not support a finding that Petitioner was in direct contempt of court, and that § 9–303(a) by its terms does not require communicating the threat to the victim or witness or a belief that the threat may be communicated to the victim or witness. Accordingly, we reverse the judgment of the Court of Special Appeals and remand the case for further proceedings.

I. Factual and Procedural History

On April 23, 2010, Petitioner was on trial for second degree assault, which stemmed from an incident the previous year, when Petitioner struck and kicked Audrey Wilgis (“Ms. Wilgis”), his girlfriend at that time, during an argument. Following a guilty verdict, Ms. Wilgis gave a victim impact statement,¹ making claims as to her financial hardships and that she “just want[ed] to be left alone.” Petitioner was sentenced to ten years in prison, with all but 18 months suspended, and three years probation. Under the “Standard Conditions” of Petitioner's Probation/Supervision Order, Petitioner was required to “[o]bey all laws.”

Approximately one week later, the State petitioned to revoke Hammonds's probation based on his actions following the April 23, 2010 sentencing. Thereafter, a probation revocation hearing was conducted on June 3, 2010. At that hearing, the judge stated that the reasons for the hearing were “certain actions you took in the courtroom after I sentenced you, which I actually observed, as well as statements that I believe you made to other people after you left the courtroom.” Deputy John Wilson, who was standing next to Petitioner at the time of sentencing, testified at this proceeding. He stated that after Petitioner received his sentence, he calmly signed his probation papers, and then began to tear up his personal copy of the documents while seated “in a chair right next to the exit door.” Deputy Wilson then escorted Petitioner out of the courtroom and back to lockup. As they were walking down the hall, Petitioner “was talking out loud and he made several comments” in a tone “louder than normal. It was just loud.” Deputy Wilson assumed the door to the courtroom was closed at the time Petitioner made these statements. He testified that Petitioner stated: “She don't know it, but she just signed her death warrant,” and “she's going to be one sorry bitch in a year and a half.” Petitioner then repeated these statements to other detainees when he was back in lockup. Deputy Wilson reported to the State's Attorney's Office that Petitioner made these statements.

Following Deputy Wilson's testimony and after relating her own observations, the trial judge revoked Petitioner's probation, finding that “Hammonds was in contempt by his purposely and in this Court's observation agitated manner ripping up the form, and that the threats he made this Court finds were made directed at the witness in this case.” On October 29, 2012, the Court of Special Appeals issued an unreported opinion affirming the Circuit Court's decision, and held that there was no abuse of discretion when that court revoked Hammonds's probation. The intermediate appellate court held that, in reviewing the finding of contempt, “[g]iven that Hammonds's action was conspicuous enough to draw the trial judge's attention while court was in session,” the ruling was not clearly erroneous. As to the court's finding that Petitioner violated § 9–303(a), the intermediate appellate court held that the “essential elements” of the retaliation statute were established, and that the statute does not specifically require threats be made directly to the witness or victim, or with the belief that they would be communicated to the witness or victim. The court further emphasized that a conviction is not required to find that Petitioner failed to “obey all laws.” We granted certiorari, Hammonds v. State, 430 Md. 344, 61 A.3d 18 (2013), to consider the following questions: ²

1. Can an individual be found, a month after the fact, to have been in direct contempt of court for tearing up court documents while seated next to the exit door of the courtroom after the court had moved on to another matter and where the court made no comment or finding of contempt at the time and there is no evidence that the proceedings were interrupted by the behavior?

2. Can Md.Crim. Law Art. § 9–303(a)'s proscription against threatening to harm a reporting victim or witness be violated without that threat of retaliation being made directly to the witness or with the intent that the threat be conveyed to the witness?

3. Did the trial court improperly revoke Petitioner's probation for acts and comments which the court deemed to constitute direct contempt and a violation of Md.Crim. Law Art. § 9–303(a)?

II. Standard of Review

This Court has held that a probation revocation case typically involves two stages: “(1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.” Wink v. State, 317 Md. 330, 332, 563 A.2d 414, 415 (1989). The State must satisfy the first stage by a preponderance of the evidence standard. Id.

At the second stage, that of whether the court's discretion should be exercised to revoke probation, appellate review is for an abuse of discretion. Trial judges do not revoke probation unless satisfied that probation should be revoked. Appellate review to determine whether there was reasonable satisfaction would simply analyze whether discretion was abused for want of any reasonable basis for the revocation.

Were the trial court satisfied to exercise its discretion to revoke, in a case where there is not legally sufficient evidence of a violation, appellate review of the reasonableness of the trial court's satisfaction should reveal the clearly erroneous or legally insufficient nature of the fact-finding of a violation.

Wink, 317 Md. at 338–39, 563 A.2d at 418.See also State v. Dopkowski, 325 Md. 671, 678, 602 A.2d 1185, 1188 (1992) (“Abuse of discretion will be found only if the trial court has erroneously construed the conditions of probation, has made factual findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking probation.” (citation omitted)).

III. Contempt

As one of two grounds for Petitioner's revocation of probation, Petitioner was found in contempt of court for his actions inside the courtroom following his April 23, 2010 trial and sentencing for second-degree assault. At his probation revocation proceeding on June 3, 2010, the trial court determined that Petitioner violated the condition of his probation that he “obey all laws” by committing a contemptuous act at the earlier hearing. We shall hold that the record is not sufficient to support a finding that Petitioner was in contempt of court—specifically, direct criminal contempt of court—when he tore up his personal copy of the probation papers while seated next to the exit door of the courtroom following his sentencing.

This Court has held that “[o]ne weapon in the court's arsenal useful in defending its dignity is the power to punish for contempt. But the magnitude of its force demands care and discretion in its use so as to avoid arbitrary, capricious or oppressive application of this power.” State v. Roll, 267 Md. 714, 717, 298 A.2d 867, 870 (1973). “Because such individual differences may exist in the exercise of this potentially drastic power of the court, trial judges must be on guard against confusing offenses to their sensibilities with obstructions of the administration of justice.” Jones v. State, 32 Md.App. 490, 491, 362 A.2d 660, 661 (1976). This Court has explained:

We recognize two forms of contempt—direct and constructive—and two types of each form—criminal and civil. Direct contempt is committed in the presence of the trial judge or so near to him or her as to interrupt the court's proceedings, while constructive contempt is any other form of contempt. Criminal contempt serves a punitive function, while civil contempt is remedial or compulsory and must provide for purging.

Smith v. State, 382 Md. 329, 338, 855 A.2d 339, 344 (2004) (citations omitted); see also Ashford v. State, 358 Md. 552, 563, 750 A.2d 35, 40–41 (2000). As conceded by both parties, if Petitioner's paper...