Matter of Evans

• Decision Date: 08 February 1980
• Docket Number: No. 79-197.,No. 12852.,12852.,79-197.
• Citation: 411 A.2d 984
• Parties: In the Matter of Paul G. EVANS, Appellant.
• Court: D.C. Court of Appeals

411 A.2d 984

In the Matter of Paul G. EVANS, Appellant.

No. 12852.

No. 79-197.

District of Columbia Court of Appeals.

Argued September 11, 1979.

Decided February 8, 1980.

Rehearing En Banc Denied March 10, 1980.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul G. Evans, pro se.

Mark J. Biros, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time brief was filed, and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.

Before KELLY, GALLAGHER and NE-BEKER, Associate Judges.

GALLAGHER, Associate Judge:

This is an appeal from two criminal contempt convictions in which appellant Paul G. Evans, a District of Columbia lawyer, was fined, in the first proceeding, $500 for contempt arising from failure to appear in three court-appointed cases, and, in the second conviction, $400 for failure to pay the $500 fine. On appeal, Evans seeks reversal of both convictions on the ground that they were obtained in violation of his right to a jury trial under D.C.Code 1973, § 16-705(b). He also contends that the second conviction should be reversed on the additional grounds that the trial was tainted by the bias of the presiding judge, and that he could not, in any case, be found guilty of contempt for failure to pay a fine when he had filed an application for a stay of that fine, which application had not been ruled on by the trial court and when, he contends, payment of the fine would have mooted his appeal.¹

We conclude that, read in the light of its legislative history, D.C.Code 1973, § 16-705(b), does not afford appellant a statutory right to a jury trial for criminal contempt when the penalty received is only a fine. We conclude further, however, that under the Sixth Amendment to the Constitution and decisions of the United States Supreme Court which have applied it, appellant should have been afforded a jury in both of his trials. We further find that appellant's second conviction was impermissibly tainted by the bias of the trial judge. Accordingly, we reverse the second conviction and adjust the fine imposed in the first conviction to conform to our decision.

Procedural History

On September 28, 1977, appellant Evans appeared before Judge Bacon in the trial court in response to a September 21 order directing him to show cause why he should not be held in contempt for failing to appear for trial on three separate dates in three different cases. After informing the court that he was aware of the subject matter of the order, appellant stated that he was ready to go forward with the hearing, admitted his failure to appear in three cases, and attempted to explain why he had been absent.

From appellant's admissions and explanations, the court found that he consciously and deliberately chose not to appear in both the first and second cases without notifying the court of his decision. In the third case, because he failed to pick up the mail at his local office, the court found that appellant put himself in a position where he could not receive notices of his commitments to the court. All of these acts and omissions, the court found, were "conscious decisions" evidencing a "reckless disregard of [his] professional duty and a willful failure to comply with [Rules 101(b)(3) and 112] of the Court."² Appellant was thereupon adjudged in contempt and ordered to pay a $500 fine. At his request, appellant was permitted to defer payment of the fine until December 1, 1977. On October 6, 1977, appellant noted an appeal from this conviction (No. 12852).

On November 21, 1977, appellant presented a paper denominated "Application for Stay" to the special proceedings clerk, who file stamped it. Appellant then hand carried the file stamped copy to the appeals coordinator's office, where it was placed with the record on appeal.³ No further action was taken by either appellant or the court in regard to staying the payment of the $500 fine until August 31, 1978, when Judge Bacon issued an order which inter alia noted that, although an "application for stay" was in the record on appeal, no such application was "reflected in the official trial court jacket," nor had it otherwise been submitted to the trial court. Additionally, the judge observed that neither she nor this court had stayed her order directing appellant to pay the fine by December 1, 1977. The court therefore directed appellant to appear on September 22, 1978, and show cause why he should not be held in contempt for failure to pay the $500 fine which she had previously imposed.

On September 22, 1978, appellant filed an affidavit of bias in the trial court seeking the recusal of Judge Bacon at the hearing on her order to show cause for his failure to pay the $500 fine. Judge Bacon recused herself on September 26, and the case was thereafter assigned to Judge Braman. Prior to the second show cause hearing, appellant filed two affidavits of bias seeking Judge Braman's disqualification to preside at the hearing. In these affidavits he outlined three alleged incidents which, he asserted, reflected bias. The first incident occurred when appellant, interceding on behalf of an attorney accused of soliciting clients, was assertedly told by Judge Braman to disassociate himself from that attorney. According to the affidavit, the second one occurred in traffic court and resulted in appellant's being accused by Judge Braman of soliciting money from a Spanish-speaking woman. The third allegation made by appellant was that Judge Braman had purportedly made disparaging remarks about him to third persons. On October 27, 1978, Judge Braman denied appellant's request for disqualification, finding that each of appellant's allegations was legally insufficient to warrant recusal.

On January 18, 1979, Judge Braman issued an order which, inter alia, denied appellant's oral request for a jury trial. Consequently, on January 31, 1979, appellant appeared before Judge Braman to answer the show cause order issued by Judge Bacon concerning his failure to pay the previously imposed fine by December 1, 1977. Appellant testified that he did not pay the fine because he had "filed" on November 21, 1977, an application for a stay of the order directing him to pay the fine. He admitted that no such application nor any reference to it was in the Superior Court case jacket, and that he had not considered how the motion would come to Judge Bacon's attention, when the original had been put in the record on appeal.

At the conclusion of the hearing appellant was adjudged in contempt. The court concluded that appellant, in not paying the fine by December 1, 1977, or at any time thereafter, and knowing that no stay of the order had actually been granted, "intention[ally] and deliberate[ly]" assumed the risk inherent in disobedience to the order. Although considering appellant's handling of the application for a stay as an extenuating circumstance, Judge Braman nevertheless found that the motion was "in no proper sense made part of the record" in the trial court and that appellant, as an attorney, "should certainly have known that [it] would not come to the attention of Judge Bacon." Furthermore, the trial judge noted, the mere filing of such an application, as appellant himself admitted, did not effect a stay of the order. The court thereupon levied a fine of $400 but stayed execution of the sentence until this court had decided appellant's appeal from his first contempt conviction. On February 5 appellant noted an appeal (No. 79-197) from this second contempt conviction, and on March 23 this court, upon appellant's motion, consolidated both appeals.

I.

Appellant first contends that his denial of a jury trial in criminal proceedings which resulted in penalties in excess of $300 violated D.C.Code 1973, § 16-705(b) which provides in pertinent part:

In any case where the defendant is not under the Constitution of the United States entitled to a trial by jury, the trial shall be by a single judge without a jury, except that if —

(1) the case involves an offense which is punishable by a fine or penalty of more than $300 or by imprisonment for more than ninety days (or for more than six months in the case of the offense of contempt of court), and

(2) the defendant demands a trial by jury and does not subsequently waive a trial by jury in accordance with subsection (a), the trial shall be by jury.

Appellant argues that the plain meaning of the statute permits no other reading than that it requires a jury trial in contempt proceedings whenever the penalty exceeds either $300 or six months' imprisonment. The government argues, on the other hand, that the statute must be read in light of its legislative history and that it provides for a jury trial in contempt cases only when the punishment exceeds six months' imprisonment.

Prior to 1970, D.C.Code 1973, § 16-705(b) contained no specific reference to contempt convictions, providing that

In any case where the accused would not by force of the Constitution of the United States be entitled to a trial by jury, the trial shall be by the court without a jury, unless it is a case wherein the fine or penalty may be more than $300, or imprisonment as punishment for the offense may be more than ninety days and the accused demands a trial by jury. In the latter case the trial shall be by jury. [D.C.Code 1967, § 16-705(b).]

At that time, the maximum penalty which could be meted out by the Court of General Sessions for criminal contempt was a $50 fine or 30 days' imprisonment (D.C.Code 1967, § 11-982(a)). Consequently, criminal contempt convictions could never fall under the jury trial provision of § 16-705(b). In 1970, however, Congress enacted the District of Columbia Court Reform and Criminal Procedure Act of 1970. Pub.L. No. 91-358, 84 Stat. 473 (July 29, 1970). This Act worked extensive changes in Title 11 of the District of Columbia Code, among which was the elimination of any...