Lee v. State

• Decision Date: 13 December 1983
• Docket Number: No. 242,242
• Citation: 468 A.2d 656,56 Md.App. 613
• Parties: Kenneth Edward LEE v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 613

56 Md.App. 613

468 A.2d 656

Kenneth Edward LEE v. STATE of Maryland.

No. 242 Sept. Term 1983.

Court of Special Appeals of Maryland.

Dec. 13, 1983.

John L. Kopolow, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on brief, for appellant.

Bernard A. Penner, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Sandra A. O'Connor, State's Atty. for Baltimore County and C. Eugene Schmidt, Asst. State's Atty. for Baltimore County on brief, for appellee.

Argued before WEANT, BISHOP and ALPERT, JJ.

ALPERT, Judge.

We hold that a defendant in a civil contempt proceeding ¹ has no right to a jury trial and cannot be sentenced to incarceration unless he has been afforded the right to have counsel present closing argument.

On September 7, 1979, a jury in the Circuit Court for Baltimore County found Kenneth Edward Lee, appellant, guilty of the criminal non-support of his children in violation of Md.Ann.Code, art. 27, § 88(b) (1957, 1982 Repl.Vol.). He was sentenced to three years to the Division of Corrections. This sentence was immediately suspended in favor of three years of supervised probation, and, as a condition of probation, appellant was ordered to pay $20.00 per week per child as child support. In an unreported per curiam opinion, appellant's conviction was affirmed by a three-judge panel of this Court. Lee v. State, No. 1278, September Term, 1979, filed May 22, 1980.

On October 15, 1979, appellant was charged with violation of probation because he allegedly failed to make the ordered payments. According to the docket entries, on May 12, 1981, appellant was found "not guilty" of the alleged probation violation. Thereafter, on July 1, 1981 and February 2, 1982, the State filed petitions seeking to have the appellant attached for contempt for allegedly not obeying the order for child support. As these petitions were not served, a similar petition was filed on February 25, 1982, directing the appellant to show cause why he should not be attached for contempt for failing to pay child support.

The matter came on for trial on December 20, 1982, and the appellant entered a formal plea of not guilty to the charge of contempt. Defense counsel asked appellant if he wanted a jury trial, but before receiving a response the court stated, "He is not entitled to a jury trial on a contempt." Trial proceeded without a jury.

Anita Carol Lee, appellant's former wife, testified that despite the 1979 conviction and order to pay child support, the defendant consistently refused and failed to pay. Anita Vesely of the Support Division of the Circuit Court for Baltimore County related that the September 7, 1979 order directed the appellant to pay $20.00 per week per child, plus a 2% service charge: a total of $40.80 per week; that the appellant did not respond to delinquency notices; that appellant had not made any weekly payments; and that an arrearage in the amount of $7,058.40 had accrued.

Testifying in his own defense, appellant stated that he was self-employed in the delivery business earning $730.00 per month plus $244.00 received for his services as a minister with the Bible Presbyterian Church. According to appellant, $166 of that $244 was donated to the church as a "tithe," leaving him a net of $84 per month. He indicated expenses as follows:

$300.00 per month for gasoline

$ 60.00 per month for tires due to a bent frame on car

$ 8.00 per month for automobile insurance

$ 19.50 per week for rental of equipment used in his delivery business

$150.00 per month for food

$350.00 per month for rent

$ 95.00 per month for oil heat, electricity and telephone.

Additionally, appellant listed outstanding debts in excess of $3,000.00. While testifying that he was financially unable to make payments of $20.00 per week per child, at one point appellant stated that

The issue is not whether or not I will take care of my children, because I have maintained this house so that there would be room for the children, and I am prepared to take care of the children, I have always been prepared, in fact I have, to take care of them all day, I've tried to schedule my work so I can be available.

Later, indicating a different reason why payments weren't made, the appellant stated

[A]fter the civil court ordered me to make payments, I went back to the next highest church court, the Presbytery, and I asked them for advice as to what I should do. They said that, in my wife's current state of desertion from my household, I should not make any payments through her. But if I were able to, I am willing to do almost anything to work this out.

Appellant was asked by his attorney:

If you were to make payments directly to your wife, or even to her through the Department of Support and Custody, would this reflect in any way upon your religious beliefs?

He answered, "It would be a direct act of defiance to God."

When reminded that he gave $166.00 a month to the church which was approximately the amount he was ordered to pay for child support, his response to the prosecutor was Well, I am prepared to, in any way that honors the Lord, to take care of my children, as I always have before my wife took them away. But the first obligation is to the Lord, the first tenth goes to God.

After further cross-examination, the prosecutor asked the appellant:

Are you willing to pay this time to the Support and Custody Division to support, help support your children?

Appellant responded, "It's not my will that counts."

At the close of all the evidence, the following colloquy took place:

THE COURT: Does anybody want to be heard?

[DEFENSE COUNSEL]: I am going to renew my motion for judgment of acquittal.

THE COURT: Overruled.

[DEFENSE COUNSEL]: I would like to be heard.

MR. SCHMIDT [ASSISTANT STATE'S ATTORNEY]: Not at this time.

THE COURT: I have no problem with it. He is clearly guilty of Judge Haile's order of September 7, 1979. And I notice from the Court of Appeals opinion he is a member of the Tennessee Bar. He has made no effort to pay anything, even though his income has been very low. He said he made $730 monthly since August, and before that time maybe he made three or four hundred dollars less. But he has made no effort to pay one cent. And the trouble about it, Mr. McGarvey, is that he has some debts, but he has his obligations in the wrong place; the Court should come first, because the rest of the debtors can't put him in jail, but I can.

[DEFENSE COUNSEL]: Well, Your Honor, I think under all the circumstances--

THE COURT: I think maybe, if he wants a trustee, he ought to designate the Support and Custody Division of Baltimore County as trustee. So my sentence is very simple: It will be two years in the Baltimore County Jail. I will recommend work release. And this contempt can be purged in two ways, and I will recite them to him now, but the payment of $7,058.48 is payable through the Probation Department of Baltimore County--he is a lawyer, he knows I have an obligation to enforce the law, that is my obligation--secondly, by the payment of $40 a week plus $20 a week on the arrearage, which is found to be $7,058.48, through the Probation Department; and he can put it down in his own mind, that is the trustee.

He has a right to take an appeal to the Court of Special Appeals, that request has to be made to the Court in writing, to do that he has to submit it to the Court in writing and request an appeal. And since this is a criminal case, I have the right to modify or change this sentence within 90 days; that request has to be made in writing. I think he has the right to a sentence review on this, too, because the sentence is two years or more, and that request has to be made to the Court in writing. That request would cause a three-judge panel to convene, but it would not include myself. They can lower it but they can also increase it, the sentence. I think that is sufficient.

Appellant, after noting a timely appeal, contends that:

I. He was denied his constitutional right to elect a trial by jury.

II. He was denied his constitutional right to closing argument through counsel.

III. He was erroneously found guilty of civil contempt and incarcerated therefor because the State failed to prove his ability to comply with the order for child support and the purging provision of this sentence.

IV. The trial court erred in concluding that appellant's failure to make child support payments was contemptuous where the uncontraverted evidence was that the children lived with their mother who had rebuffed all his attempts to contact them.

V. The prosecution for criminal contempt was barred by principles of double jeopardy.

Because we hold that the appellant was indeed denied his constitutional right to have his counsel make closing argument, we shall reverse and remand for a new trial. Since discussion of the other four issues raised would be helpful to the trial court on remand, we shall also address those issues.

I.

Appellant contends that "if the proceedings below were for criminal contempt," he was denied the fundamental right to a jury trial. He further asserts that the trial judge viewed the proceedings as criminal because a plea of not guilty was submitted and after judgment was pronounced and sentence imposed, appellant was advised of his right to seek review by a three-judge panel, a right only available to one convicted of a crime. See Md.Ann.Code, art. 27, § 645JA(a). Before we can decide whether the appellant was entitled to a jury trial, we must first determine whether he was being tried for criminal or civil contempt. In State v. Roll & Scholl, 267 Md. 714, 298 A.2d 867 (1973), the late Judge Dudley Digges delivered the opinion for the Court of Appeals and stated:

In this State, the nature of the proceeding is determined before the time for imposing punishment is reached. While this Court has previously quoted language from Supreme Court cases that have dealt with...