Murphy v. State, 1445

CourtCourt of Special Appeals of Maryland
Citation416 A.2d 748,46 Md.App. 138
Docket NumberNo. 1445,1445
PartiesWilliam H. MURPHY, Jr. v. STATE of Maryland.
Decision Date09 July 1980

Richard V. Falcon, Baltimore, with whom were Melnicove, Kaufman & Weiner, P.A., Baltimore, on brief, for appellant.

Bonnie A. Travieso, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. and John L. Norton, III, State's Atty., for Dorchester County, on brief, for appellee.

Argued before MOORE, COUCH, and LEVINE, JACOB S., * JJ.

MOORE, Judge.

Defendant-appellant, William H. Murphy, Jr., a member of the Bar with offices in Baltimore City, was charged with direct contempt of court in the Circuit Court for Dorchester County for failure to appear in that court as defense counsel in two criminal trials scheduled for September 6, 1979. On September 14, 1979, the court (Edmondson, J.) issued an Order to Show Cause why defendant should not be held in contempt of court. 1 After a hearing before Judge Edmondson on October 15, 1979, defendant was found in direct contempt and fined $1,000.00.

On this appeal, he raises three issues: (a) that his failure to appear in court must be treated as a constructive contempt and not as a direct contempt; (b) that the trial court erred in holding that a defendant in a case of criminal contempt has the burden of proving exculpatory circumstances; and (c) that his failure to appear was not contemptuous.


On September 6, 1979, two criminal cases were scheduled for trial in the Circuit Court for Dorchester County: State v Dobson, No. 3803, a murder case; and State v. Price, No. 3796, a "natural resources" case. At 10:00 a. m. the trial judge, the Honorable Charles E. Edmondson, called the first case. The State was present. Ms. Dobson, the defendant, was present but her attorney, Mr. Murphy, was absent. She told Judge Edmondson that she had last seen Mr. Murphy in March when she was released from custody.

John L. Norton, III, the State's Attorney for Dorchester County, then informed the court that Mr. Murphy had telephoned him the previous evening and had said that he would not be present for the two criminal trials because of the carry-over of a criminal trial in Baltimore in which he was engaged. Mr. Norton indicated that the State had summoned a number of witnesses from around the State and that they were present to testify in both cases. He also indicated that Mr. Murphy had failed to appear for a pretrial suppression hearing the week before.

Judge Edmondson then related that Mr. Murphy had telephoned him at 9:20 a. m. that morning, forty minutes prior to the scheduled start of trial, had told him that he was involved in a jury trial in Baltimore City, and had said that he could not appear for the two Dorchester County trials.

Called as a witness to explain the scheduling of the two criminal cases, Mrs. Donna Pyle, Chief Deputy Clerk of the Circuit Court for Dorchester County, testified that the September 6, 1979 trial date was set on May 25, 1979 after several telephone calls to Mr. Murphy's office because "I was informed by that office this was the only date that Mr. Murphy was free." At that time she was told by the attorney's secretary that he "felt that he could try both cases (in) one day." She also testified that, in August 1979, Mr. Murphy was in Mrs. Pyle's office to discuss another, unrelated case; the September 6th cases were mentioned and "he gave no indication that he would not be here at that time."

Prior to hearing from the two criminal defendants whom Mr. Murphy was scheduled to represent, the trial judge asked the State's Attorney to review the law and report back to him so that "we can reach some decision whether or not to cite Mr. Murphy for contempt of court for failing to appear today."

The defendant in the second case, Gregory Wesley Price, then informed the court that because of the absence of his attorney, Mr. Murphy, he wanted to dismiss his case, an appeal from the District Court. Mr. Price stated that he had not talked to Mr. Murphy for months and that "he has been giving us a run around." Judge Edmondson thereupon dismissed Mr. Price's appeal and waived the court costs.

Mrs. Dobson, the other defendant, requested a hearing in chambers, which was held immediately after the court adjourned. At that hearing Mrs. Pyle, the Deputy Clerk, indicated that Mrs. Dobson's trial could not be rescheduled for another five or six months. Judge Edmondson, who advised Mrs. Dobson to get in touch with Mr. Murphy immediately, also stated:

"We have had such trouble scheduling cases in which Mr. Murphy is involved that we said, 'You pick your trial date and that's when we will have it.' That's what we do and then he doesn't show up."

A Show Cause Order issued on September 14, 1979; it ordered Mr. Murphy to appear on October 15, 1979 to show cause why he should not be held in contempt of court. In the Order, Judge Edmondson stated that although a direct contempt may be summarily punished pursuant to Md. Rule P3(a), he wished "to preserve this Defendant's right to due process and to therefore give him an opportunity to show cause why he should not be held in contempt. . . . "

At the hearing Mr. Murphy argued that Md. Rule P4, dealing with constructive contempts, and not Md. Rule P3, should apply to the proceedings because his alleged contempt was at most constructive. Judge Edmondson, citing Kandel v. State, 252 Md. 668, 250 A.2d 853 (1969), ruled that the defendant's failure to appear at trial as defense counsel at the appointed time constituted a direct contempt, punishable summarily. Mr. Murphy then entered an objection to the proceedings, citing alleged denials of due process of law and the right to confront the witnesses against him.

Mr. Murphy explained to the court that he had been representing Samuel Floyd in a murder trial in the Criminal Court of Baltimore on September 6, 1979. He stated that a scheduled August 29th trial date in the case had been delayed two days because the Hicks 2 decision had caused a tremendous backlog in that court. Acknowledging that he had not appeared for the pretrial suppression hearing scheduled for August 31st, Mr. Murphy said that he had called Circuit Court Judge Simpkins to inform him that the Floyd trial conflicted. Mr. Murphy then offered this explanation to the court:

"So, backing up, Wednesday, August the 29th, Samuel Floyd was scheduled to go to trial for murder in the criminal court in Baltimore City. On Wednesday we were notified no court was available, not to go anywhere because one might be imminently available.

"On Thursday no court was yet available. We were told not to go anywhere, a court would be imminently available. And, either Thursday late afternoon or Friday morning I contacted Judge Simpkins to let him know that because they had found a court that I would not be able to be there on the 31st.

"Now the Floyd case continued to Tuesday, September the 4th, Wednesday, September the 5th, Thursday, September the 6th et cetera, et cetera.

"Now once having been started, and once having put Judge Simpkins on notice, I took it for granted, as I felt I had a right to do, that, therefore, this court, because he was sitting in this court, knew that I was involved in a continued jury case. . . ."

According to Mr. Murphy, the State's Attorney told him on September 5th during their telephone conversation that "everything is going to be alright, no problem." When he called Judge Edmondson the next morning, he was told that he would be held in contempt of court if he failed to appear. Mr. Murphy "tried to persuade the Court not to do that, and we had a cordial conversation. . . . I was convinced that the Court was going to take the action that it did, and turned out to be correct."

Acknowledging that he never contacted the assignment clerk to inform her of his conflict, Mr. Murphy said "I didn't know that it was my obligation to call (her)." He also stated that he had asked his secretary to call the court to inform it of the conflict "but she simply didn't follow through on this particular point. . . ."

When Mr. Murphy finished his testimony, the court heard from Mr. Norton, the State's Attorney. He related that his office had been in contact with Mr. Murphy's office "a great deal" during the period immediately preceding the scheduled trial. Mr. Norton also stated that "the reason I was making a great number of calls to his office was to find out whether or not he would be able to appear at the trial September 6th." When questioned by the court, Mr. Norton stated that the telephone call from Mr. Murphy on September 5th was the "(f)irst time I knew he would not be here. . . . Up until that time . . . everything was tentative, unsure, uncertain." Judge Edmondson then pointed out that the court personnel "thought he would be here up until 9:20 the morning of September the 6th."

After a brief recess the court issued an opinion from the bench in which it stated "that this Court was not aware of any possible postponement until you called me at 9:20 on the morning of September the 6th, 1979, which was the date set for trial for both cases." In the opinion the court observed that the contempt proceedings were motivated solely by the need to ensure that the court's calendar is not delayed by the absence of attorneys, parties, or witnesses:

"I hope you understand how I feel. Now I want to make one thing clear to you I'm not mad with you. I guess it could be said I'm disturbed with you because of the trouble it causes this court. But, in all sincerity you are an excellent lawyer and I would rather see you come in this court and try a criminal case as anybody that's been in this court because you try a good case. But, we have the greatest time trying to get you here to try them. And that's what is causing us the trouble."

At the conclusion of his opinion Judge Edmondson found: "We think you violated the rules, we think the facts proved that, and we have cited...

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