James v. Pulaski Cnty. Circuit Court

• Decision Date: 26 June 2014
• Docket Number: No. CR–14–242.,CR–14–242.
• Citation: 439 S.W.3d 19,2014 Ark. 305
• Parties: William O. JAMES, JR., Appellant v. PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 305

439 S.W.3d 19

William O. JAMES, JR., Appellant

v.PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION, Appellee.

No. CR–14–242.

Supreme Court of Arkansas.

June 26, 2014.

Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

Opinion

KAREN R. BAKER, Justice.

This appeal stems from a June 2013, manslaughter trial against Joshua Hastings in Pulaski County Circuit Court. William O. James, Jr., is an attorney who represented Hastings at trial. During the trial, Wendell Griffen, the presiding judge in the case, found James guilty of a total of ten contempt violations. James was originally fined $2,500 per violation, but in a February 25, 2014 order, the circuit court reduced that amount to $500 per violation.

Hastings was a Little Rock police officer and was charged with the August 12, 2012 death of Bobby Moore III. While on duty on August 12, 2012, Hastings fired shots into a car occupied by three passengers: Moore, Jeremiah Johnson, and Keontay Walker. Moore died as a result of his injuries, and Hastings was charged with manslaughter. Johnson and Walker were the prosecution's key witnesses. Prior to trial, on June 11, 2013, Hastings filed a motion asking to be allowed to cross-examine Johnson and Walker concerning their juvenile and probationary statuses. The circuit court heard arguments on the motion and denied Hastings's motion. On June 13, 2013, Hastings filed a motion for reconsideration, and on June 14, 2013, the State responded. On June 17, 2013, the circuit court heard arguments on the motion and response, and on June 18, 2013, the circuit court reversed its prior ruling and ruled that Hastings could cross-examine Johnson and Walker. The ruling from the bench was as follows:

The defense may cross-examine witnesses ... Johnson and ... Walker about the fact that they were on probation in juvenile court for the purpose of challenging their credibility on the grounds of bias or motive.

The defense may not specify the offenses on which the probation was based, nor may the defense refer to any other offenses, juvenile offenses.

The defense is only permitted to inquire of the juvenile witnesses Johnson and Walker for the purpose of establishing or challenging credibility on grounds of bias or motive but not for the purpose of showing state of mind as to those witnesses at the time of the occurrence or for the purpose of establishing their character.

During opening statements, following an objection by the State, the circuit court announced that James had violated its order and held him in contempt. The trial continued and ended with a hung jury on Sunday, June 23, 2013. Immediately thereafter, the circuit court declared a mistrial, dismissed the jury, and announced that nine other contempt violations had occurred during the course of the trial.

On June 24, 2013, James filed a motion to vacate contempt findings. On June 25, 2013, the circuit court denied James's motion. From the circuit court's contempt order and the denial of James's motion to vacate contempt findings, James appealed to this court. On February 10, 2014, we dismissed the appeal, concluding that the lack of a final contempt order precluded an appeal. On February 25, 2014, the circuit court entered a final order, “Memorandum Opinion and Entry of Contempt Order Against William O. James, Jr.” On February 28, 2014, James filed an amended motion asking to vacate the contempt findings to clarify the circuit court's previous order because the circuit court had reduced the fines. On March 7, 2014, the circuit court denied James's amended motion. From those orders, James appeals.

James presents five issues on appeal: (1) the contempt citations violated his constitutional and statutory rights of notice and opportunity to be heard; (2) nine of the ten contempt citations are invalid because the circuit court failed to contemporaneously warn James of the alleged violations and because they violate the contemporaneous-objection rule; (3) the circuit court did not immediately act on the alleged violations but entered an order on Sunday, which the circuit court was statutorily prohibited from doing; (4) James's statements were not violations of the circuit's order; and (5) the circuit court's order restricting examination of prosecution witnesses was unconstitutional as a matter of law and therefore the contempt citations must be reversed and dismissed.

We have jurisdiction of this matter pursuant to Ark. Sup.Ct. R. 1–2(a)(1) and (2) as the appeal presents an issue involving the interpretation of the constitution and the discipline of attorneys.

As a preliminary matter, we must first determine whether the contempt at issue is criminal in nature or civil in nature. In Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), we explained,

The critical features which determine the nature of the proceeding are (1) the substance of the proceeding and (2) the character of the relief.

The purpose of a criminal contempt proceeding is that it is brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its order.... The character of the relief, rather than the trial court's characterization of the substantive proceeding, becomes the critical factor in determining the nature of the proceeding for due process purposes. The Supreme Court of the United States has clearly set out the distinction between the types of relief:

...

The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is “solely and exclusively punitive in character.” Penfield Co. v. SEC, 330 U.S. 585, 593 [67 S.Ct. 918, 91 L.Ed. 1117] (1947).

Fitzhugh, 296 Ark. at 138–40, 752 S.W.2d at 276–77 (quoting Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631–32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) ).

Here, James's fine is unconditional and is to be paid to the court. Therefore, the punishment is punitive, and the contempt is criminal in nature.

For his first point on appeal, James asserts that the contempt citations violated his constitutional and statutory rights of notice and opportunity to be heard. The circuit court responds that James failed to preserve the issue for review and that the argument is without merit.

The standard of review in a case of criminal contempt is well settled: an appellate court views the record in the light most favorable to the trial judge's decision and sustains that decision if it is supported by substantial evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Id.;Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995). Where a person is held in contempt for failure or refusal to abide by a judge's order, the reviewing court will not look behind the order to determine whether it is valid.Conlee, supra.

Additionally, a review of the application and interpretation of a statute, such as the statute defining contempt, is a question of law, which this court decides de novo. McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct. Id. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body. Richard v. Union Pac. R.R. Co., 2012 Ark. 129, 388 S.W.3d 422.

We turn now to the facts of this case and the applicable statute, Ark.Code Ann. § 16–10–108 (Repl.2010), “Contempt,” states in pertinent part:

(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:

...

(3) Willful disobedience of any process or order lawfully issued or made by it;

...

(b)(1) Punishment for contempt is a Class C misdemeanor.

(c) Contempts committed in the immediate view and presence of the court may be punished summarily. In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his or her defense.

In reviewing the statute and the record, we note that the circuit court announced its contempt findings at two different times, during James's opening statement and at the close of the trial.

During opening statement, the following exchange occurred:

Defense Counsel: And when he gets there, they're gone and I think Mr. Johnson said they ran because they were afraid they were going to get shot and that may be part of their fear, but I think the evidence will show there was a whole lot of other fear and one of them is afraid they're just going to get caught.

They're on probation. I'm not going to call these boys a bunch of names. I'm just going to say it as it is. They're on probation, juvenile probation. They're committing felonies.

Prosecutor: Your Honor, approach?

The Court: You may.

(The following conference was held at the bench outside the hearing of the jury.)

Prosecutor: Your Honor, he's talking about them fleeing from the parking lot in conjunction with the night. It has nothing to do with their bias towards the police department—

Defense Counsel: I will move on. I did go into that, Your Honor.

The Court: He's making an objection.

Prosecutor:—that it had nothing to do with the bias of the police department with regard to how they were telling why they told their stories a certain way.

The Court: The objection is sustained. Mr. Johnson's objection is sustained.

Mr. James, the Court has been very emphatic in its ruling yesterday evening and in its chambers conversation with counsel yesterday morning that evidence of the juvenile's probationary status is permissible for cross examination on bias and motive with regard to testimony but not with regard to their character or how they may

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