Matter of Thompson

• Decision Date: 22 December 1982
• Docket Number: No. 79-1023.,79-1023.
• Parties: In the Matter of W. Edward THOMPSON, Appellant.
• Court: D.C. Court of Appeals

Page 1324

454 A.2d 1324

In the Matter of W. Edward THOMPSON, Appellant.

No. 79-1023.

District of Columbia Court of Appeals.

Argued November 3, 1982.

Decided December 22, 1982.

W. Edward Thompson, pro se.

Thomas P. Murphy, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee. Christopher A. Myers, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before KERN, PRYOR and BELSON, Associate Judges.

PER CURIAM:

Appellant, a member of the bar of the District of Columbia, appeared in the Superior Court as defense counsel in a jury trial which lasted from September 10th to September 13th, 1979. During the course of the trial, appellant was summarily adjudicated in criminal contempt, pursuant to Super.Ct.Cr.R. 42(a), on two occasions, both of which occurred in the actual presence of the court. Appellant contends that: (1) there was insufficient evidence to support his convictions; (2) the trial judge erred in failing to recuse himself from the contempt proceeding; and (3) he was denied his right to a jury trial. We affirm.

Appellant represented a farmer who was charged with assaulting a police officer with a dangerous weapon pursuant to D.C. Code 1981, § 22-505(b) in the case of United States v. Patrick K. Ryan, Cr. No. F-1109-79. On February 25, 1979, Mr. Ryan was operating a tractor in a motorcade of over 200 tractors on Constitution Avenue. Officer William Clark of the Metropolitan Police Department observed him performing "wheelies" — quickly accelerating the tractor so as to cause its front wheels to rise off the ground. Officer Clark allegedly signaled Mr. Ryan to stop while standing in front of the tractor. Meanwhile, two other officers came to Officer Clark's aid and approached from the side. Mr. Ryan stopped the vehicle. However, when one of the other officers climbed aboard and attempted to open the door of the cab, the tractor made a sudden move forward and struck Officer Clark. Mr. Ryan was arrested shortly thereafter.

At an early stage of the trial the court instructed both counsel that: (1) evidence of events which occurred on the mall on the morning of the incident which related to asserted police conspiracy or misconduct was immaterial; (2) evidence of post-offense police misconduct was admissible only to show bias or lack of credibility on the part of an officer who must also be one of the witnesses; and (3) testimony as to Mr. Ryan's motives for coming to the District of Columbia or the righteousness of the cause of the demonstrating farmers was inadmissible.

The first instance of contempt was committed on September 12, 1979, while appellant was questioning his client on direct examination. The pertinent excerpt follows:

Q. Approximately how many bushels of wheat do you produce a year?

A. In the neighborhood of 20,000.

Q. And what is your investment in your farm?

PROSECUTOR: Objection, Your Honor, to the relevance.

THE COURT: Sustained. This is remote [and im]material, Mr. Thompson. BY MR. THOMPSON:

Q. How much — you said you produced about 20,000 bushels a year?

A. Yes.

Q. And how much does it cost you per bushel to raise the wheat?

PROSECUTOR: Objection, Your Honor.

THE COURT: We are not here trying the merits or demerits of the production.

MR. THOMPSON: Well, Your Honor —

THE COURT: Mr. Ryan came to Washington to exercise his rights to redress Congress. There is no quarrel with that. And the whole question is whether his rights were exercised lawfully or unlawfully. And I don't intend to have this trial go into the righteousness of the case.

MR. THOMPSON: I was attempting to ask the question so that the jury could understand why he came here in the beginning.

THE COURT: I have ruled on that, Mr. Thompson. Let's move on.

BY MR. THOMPSON:

Q. Now, Mr. Ryan, why did you come here — strike that. Why did you come here in the beginning.

A. To save our family farm and to get —

THE COURT: Approach the bench.

(The witness stepped down from the witness stand; counsel for both parties approached the bench and conferred with the Court, as follows:)

THE COURT: Mr. Thompson, I adjudicate you in contempt of court. I fine you $500. If you get on this subject again, sir, I will add further sanctions.

The second contemptuous act occurred on September 13, 1979:

THE COURT: Before we commence closing argument I want to advise you that I expect the arguments to conform in all respects to the instructions of law and the law of the case which the Court has indicated to counsel will prevail. Specifically, you are aware of the Court's ruling with regard to the details of the strike and the demonstration. That's not before us, that Mr. Ryan is here to redress his grievances, that's before us.

The question is whether he committed an unlawful act while he was here. I also wish you to conform to the Court's ruling with regard to subsequent police conduct and the limited purpose for which it was admitted and the expected instruction which the Court will give, that the subsequent conduct of the police would furnish no defense to prior conduct.

Appellant proceeded with his closing argument until the occurrence of the following colloquy:

I think, ladies and gentlemen, that under the circumstances we can go back and ask why would someone do that. Why would 2,000 tractors come across this country? They must have had a very legitimate problem to deal with. Why would this man, ladies and gentlemen, spend $600 as he has testified to

MR. FISHER: Objection, Your Honor.

THE COURT: Counsel, approach the bench.

THE COURT: Mr. Thompson, I am going to admonish you that you are on the verge of contempt. I don't want any oral argument regarding empathy or the nature of that cause. You have probably exceeded my instructions. Now, I intend to deal with that later. I instruct you now that you are not to argue to the jury that this man is a downtrodden man who travelled 1500 miles to come to the District of Columbia. I don't want that argument. It's improper. You are instructed not to continue that line of argument.

* * * * * *

(Thereupon, the proceedings held at the bench were concluded; counsel returned to their seats at counsel table, and the trial was resumed, as follows:)

MR. THOMPSON: Let me get to the gut of this case. I submit that, before I get to that, the indictment should have read that on or about the 23rd of January, 1979, within the District of Columbia, that an assault and battery was committed by the police against this defendant.

MR. FISHER: Objection, Your Honor.

THE COURT: Objection sustained.

Mr. Thompson, before this jury came out I instructed you as to what was being tried in this case. Now, I expect you to stay to the law. You are telling the jury to stick to the law. I want you to stick to the law, sir.

MR. THOMPSON: Your Honor, I —

THE COURT: You know how this evidence may be used. And I instruct you to conform to my rulings.

Following closing argument and final instructions, appellant was again adjudicated in contempt of court.

I

The elements of the offense of criminal contempt under D.C.Code 1981, § 11-944 are reasonably well known. They are: (1) willful disobedience; (2) of a court order; and (3) causing an obstruction of the orderly administration of justice. See In re Gorfkle, D.C.App., 444 A.2d 934, 939-40 (1982); In re Schwartz, D.C.App., 391 A.2d 278, 281-82 (1978) (per curiam); United States v. Meyer, 149 U.S.App.D.C. 212, 216, 462 F.2d 827, 831 (1972). The application of these principles, however, is not subject to rigid circumscription. Rather, ". . . a judge must make a balanced value judgment case-by-case," In re Gorfkle, supra, 444 A.2d at 941, based on the proof in each case.

A criminal contempt citation may be punished summarily when the conduct that constituted the contempt ". . . was committed in the actual presence of the court." Super. Ct.Cr.R. 42(a); D.C.Code 1981, § 11-944. Recognizing the fact that summary contempt powers should be used sparingly, especially against attorneys, In re Schwartz, supra, 391 A.2d at 281, 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 Gorfkle, supra, 444 A.2d at 939, citing 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). In Schwartz, we found an attorney's behavior not to be contumacious when the trial court precluded questions as irrelevant while refusing to listen to any proffer as to their relevancy. Unlike the attorney admonished in Schwartz, appellant had fully disclosed his reasons for believing the information to be relevant, and the court repeatedly ruled against its inclusion.

The record reflects that during the trial appellant refused to obey the court's lucid rulings and to heed its repeated admonitions. In view of the particular facts presented in this case, we find appellant's persistent conduct to have risen ". . . to the level of willful obstruction of the orderly administration of justice . . .," In re Gorfkle, supra, 444 A.2d at 940, quoting In re Schwartz, supra, 391 A.2d at 282, and that his conduct was correctly adjudicated to be contemptuous. See Irby v. United States, D.C.App., 342 A.2d 33, 41 (1975), citing In re Ellis, D.C.App., 264 A.2d 300, 301 (1970).

Appellant relies on our recent decision in Gorfkle, where we found that an attorney's failure to obey the court's order and repeated admonitions against leading her witness on direct examination did not ". . . rise to the level of patent disrespect for the bench . . ." Id. at 940. In Gorfkle, the failure to obey the court's order was not necessarily intentional or reckless in that "[1]eading questions are too often...