In the Matter of Gorfkle
| Decision Date | 06 April 1982 |
| Docket Number | No. 79-611.,79-611. |
| Citation | 444 A.2d 934 |
| Parties | In the Matter of Judith L. GORFKLE, Appellant. |
| Court | D.C. Court of Appeals |
Charles F. C. Ruff, U. S. Atty. at the time of submission, John A. Terry, John R. Fisher, and Richard C. Bicki, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Before NEWMAN, Chief Judge, KELLY, Associate Judge, and GALLAGHER,* Associate Judge, Retired.
Appellant, counsel of record in the case of United States v. Robert 0. Chambers, Cr. No. F3968-78, was held in summary contempt by the presiding judge in that case for her "persistent refusal to comply with the court's reiterated directive that counsel not lead her witness." From that conviction and a fine of $150, appellant brought this appeal. Because we are of the opinion that the conviction is not supported by sufficient evidence, we reverse.
The pertinent communications between Judith Gorfkle and the bench in the two-day jury trial appear to have begun on the first day with Gorfkle's cross-examination of the arresting officer in the case. After establishing that the officer had handcuffed the defendant and that there were others in the vicinity, appellant asked, "And were they — do you recall someone hollering at you, `Don't treat him like an animal'?" The prosecuting attorney objected, and the court summoned counsel to the bench. Upon inquiry by the court, appellant proffered that the question was directed toward the witness' credibility. The following then ensued:
THE COURT: What does that have to do with the credibility of the witness?
Miss Gorfkle, I deplore that kind of conduct. That was plainly inflammatory. You do an injustice to yourself and your profession by [currying] to the low passions of the jury and I admonish you if you do that again, I'll find you in contempt of Court, do you understand?
On cross-examination of the complaining witness, appellant, seeking to impeach with a purported prior inconsistent statement, asked whether the witness recalled a conversation with her and her investigator on an earlier date. The court admonished appellant that she was thereby making herself a witness to the alleged conversation, despite appellant's assertion that the question was merely designed to refresh the witness' recollection. The entire colloquy is set out in the margin.1
During presentation of the defense evidence on the second day of trial, appellant sought an advance ruling from the bench that cross-examination would be limited to the scope of the particular matters into which appellant intended to inquire on direct. The defense theory was that the defendant had run to meet an approaching friend at the very time the complainant shouted that his wallet was missing, and that a nearby police officer apprehended the defendant in the mistaken belief that he was a thief in flight. Appellant therefore sought to elicit the precise sequence and duration of events at the scene, but to do so without giving the prosecution the opportunity to inquire into less helpful matters on cross-examination. The court properly refused to accede to this request to circumscribe the scope of cross-examination in advance.
It was in the context of appellant's unsuccessful effort to obtain an order limiting the scope of cross-examination that her direct examination of one Marlon Dexter Bryant, a witness present at the scene of the alleged crime, occurred. After several preliminary questions, the following exchange took place:
BY MS. GORFKLE:
Q. Now, directing your attention to August 10, 1978, were you in the presence of Mr. Chambers?
A. Yes, I was.
Q. And who else was with you?
A. Man by the name of Mr. Jackson.
Q. What's his first name?
A. Bobby.
Q. And who else was there?
A. And Mr. Brown.
The leading questions continued, however:
BY MS. GORFKLE:
Q. Now, during that evening at approximately 10:00 did there come a time when Mr. Brown left?
A. Yes, there did.
Q. And did he return?
A. Yes, he did.
Q. And what did he return with?
A. A fifth of wine. Wild Irish Rose.
Q. Now, after he returned with the wine, who was there at that time?
A. All of us was still there.
Q. All four of you?
A. Yes.
Q. And what did the four of you do with respect to the wine?
A. We all sat and drank.
Q. And after that, what happened? After the wine was drank did you see anyone else?
A. Yes, there were very few people trafficking up and back and forth.
Q. And did — was Mr. Chambers still there at that time?
A. Yes, he was.
Q. And what happened then with respect to his leaving, if he left?
Counsel, please approach the bench. At the ensuing bench conference, the court reminded appellant of its admonition and told her quite clearly that another leading question would result in an order of contempt:
May I respond for the record?
It was not long, however, before appellant asked a third leading question, whereupon the court summarily held her in contempt:
BY MS. GORFKLE:
Q. Now, after Mr. Chambers left or as Mr. Chambers left, what, if anything did Mr. Brown do or say?
A. He mentioned something about his wallet was missing.
Q. Do you know what his exact words were?
A. He said, "My wallet is missing," and then he started to search around on the ground, all on the ground, feeling his pockets and what not.
Q. Did you see at that time — did you see anyone else at that time coming up the street?
A. Matter of fact there was. Six or seven dudes coming up the street at that time.
Q. Did you see a police officer?
Ladies and Gentlemen of the jury, it's about time to take the luncheon recess and — excuse me, the mid-morning recess.
Would you please step down, Mr. Bryant? Have a seat in the Courtroom.
We'll take a fifteen minute recess.
[The jury left the Courtroom.]
THE COURT: Miss Gorfkle, you have violated my ruling. I admonished you not to lead.
Sir, would you please return to the witness room, Mr. Bryant?
Of course, it's significant to your case to show the time relationship between the defendant leaving and the arrival of the police officer. So you proceeded to ask the witness who had said that he saw six or seven people in the area — six or seven dudes — whether he saw a police officer.
I hold you in contempt of Court. I will fine you $150.
The next question of that type, Miss Gorfkle, will be dealt with more sternly. Do you understand me?
MS. GORFKLE: Yes.
The trial apparently concluded without further incident, resulting in a judgment of acquittal for the defendant. The court issued a written order of contempt on May 22, 1979; imposition of the $150 fine was stayed pending this appeal.
D.C.Code 1973, § 11-944 empowers judges of the Superior Court to "punish for disobedience of an order or for contempt committed in the presence of the court." Super.Ct.Cr.R. 42(a) further states that such a contempt may be punished summarily, that is, without separate notice and hearing, so long as the presiding judge sets out with particularity, in a written order, the bases for his finding of contempt.2 We have not hesitated to uphold trial judges' reasonable efforts to maintain an orderly and decorous atmosphere in their courtrooms through the use of the summary contempt sanction. Nevertheless, we have recognized that the summary contempt power should be exercised sparingly, especially against attorneys. See In re Schwartz, D.C.App., 391 A.2d 278, 281 (1978) (per curiam). In particular, we have held that "[a] contempt conviction . . . should not be based on a mere technicality, but should be imposed only where necessary to maintain an orderly system of justice." In re Hunt, D.C.App., 367 A.2d 155, 158 (1976) (per curiam), cert. denied, 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977). As the Supreme Court has said:
While...
To continue reading
Request your trial
-
BROOKS v. U.S.
...whether those acts constitute the crime of contempt, however, is a question of law that we independently review. See In re Gorfkle, 444 A.2d 934, 940 (D.C. 1982) (judging appellant's actions to be noncontumacious without deference to the trial court's determination of that issue). "We revie......
-
United States v. Dixon
...comprises two elements: (i) a court order made known to the defendant, followed by (ii) willful violation of that order. In re Gorfkle, 444 A.2d 934, 939 (D.C.1982); In re Thompson, 454 A.2d 1324, 1326 (D.C.1982). Neither of those elements is necessarily satisfied by proof that a defendant ......
-
Swisher v. US
...454 A.2d 1324, 1326 (D.C.1982) (per curiam). The offense requires both a contemptuous act and a wrongful state of mind. In re Gorfkle, 444 A.2d 934, 939-40 (D.C.1982). Swisher apparently challenges the sufficiency of the proof of the first and third elements. He claims that his conduct does......
-
In re Warner, No. 04-FM-175.
...States, 793 A.2d 1260 (D.C.2002); Swisher v. United States, 572 A.2d 85 (D.C.1990); In re Thompson, 454 A.2d 1324 (D.C.1982); In re Gorfkle, 444 A.2d 934 (D.C.1982). 6. The Council's implicit recognition of proof of the ability to pay, in addition to knowledge of illegality, as part of the ......