Purpura v. Purpura, 13707

• Court: Court of Appeals of New Mexico
• Writing for the Court: FLORES
• Citation: Purpura v. Purpura, 115 N.M. 80, 847 P.2d 314, 1993 NMCA 1 (N.M. App. 1993)
• Decision Date: 04 January 1993
• Docket Number: No. 13707,13707
• Parties: James J. PURPURA, Petitioner, v. Pamala Ann PURPURA, Respondent, and concerning Tom Cherryhomes, Defendant-Appellant.

Page 314

847 P.2d 314

115 N.M. 80

James J. PURPURA, Petitioner, v. Pamala Ann PURPURA, Respondent and concerning Tom Cherryhomes, Defendant-Appellant.

No. 13707.

Court of Appeals of New Mexico.

Jan. 4, 1993.

Certiorari Denied Feb. 15, 1993.

[115 N.M. 81] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for State of New Mexico.

Gary C. Mitchell, Ruidoso, for defendant-appellant.

OPINION

FLORES, Judge.

Attorney Tom Cherryhomes (appellant) appeals from an order and an amended order holding him in direct criminal contempt. Appellant makes two claims on appeal: (1) that appellant's actions do not constitute contempt; and (2) that the trial judge should have recused himself from hearing the matter of contempt. We affirm.

Initially, we note that appellant represented himself throughout most of the appellate proceedings. Mr. Gary C. Mitchell entered his appearance on behalf of appellant after briefing was completed.

I. FACTS

The incidents resulting in the contempt adjudication arose December 6, 1991, during litigation of the rights to a time-share condominium by a divorced couple in which appellant represented Pamala Ann Purpura, the respondent. While the trial judge was announcing his decision, appellant interrupted and stated that he would like the record to reflect that he had just been told by Dr. Purpura, the petitioner, to "kiss his ass." Appellant asked the trial judge to admonish the petitioner and stated that this was the type of action that was going to get Dr. Purpura "a little facial surgery." The trial judge addressed the litigants and their attorneys and stated that there appeared to be "heartfelt animosity" between all the participants in the lawsuit and that he wanted everyone to behave like adults and to conduct themselves in a professional and reasonable manner. The trial judge further stated that he had previously held people in contempt but that he did not wish to do so here. The trial judge also stated that he did not hear the petitioner make the statement to appellant. A review of the record indicates that appellant then proceeded to interrupt the trial judge repeatedly. The trial judge asked appellant not to interrupt him again. While the trial judge was speaking, appellant proceeded to loosen his tie and unbutton his top collar button. During the proceeding, appellant was wearing a conventional tie, knotted and closed around his neck, as well as a multi-colored bandanna above that tie and around his neck. The trial judge told appellant that the court proceedings were not yet concluded and to "please put his tie on." Appellant responded that he had two ties on and that he had loosened only the conventional tie from around his neck. After further discussion between the trial judge and appellant regarding the tie, the trial judge held appellant in contempt for failure to abide by the proper decorum of the court. See State v. Cherryhomes, 114 N.M. 495, 840 P.2d 1261 (Ct.App.1992) (affirming contempt against appellant for refusal to comply with court order regarding proper attire).

Appellant requested a hearing in which to present evidence. Following a brief recess, the contempt hearing was commenced to determine whether the charge of direct criminal contempt was warranted. The trial judge stated that it was his opinion that appellant's dress was inappropriate with his top collar button unbuttoned and his tie loosened. The trial judge then requested that the deputy officers photograph appellant. Appellant refused to be photographed and stated that he would like to have witnesses testify as to what they heard the petitioner state, the manner in which appellant was dressed, and whether such manner was disrespectful in their opinion. Appellant stated that he wanted the opportunity to introduce the testimony of these witnesses without having three deputies with guns in the courtroom. Appellant then told the judge: "I've never physically accosted you, I think you understand that if I wanted to I'm quick enough, agile enough, and athletic enough, I can get you judge. I can get you before these three get custody of me." The trial judge then ordered appellant to allow the deputy sheriff to take his photograph. Appellant still refused, and as the deputy sheriff took the photograph, appellant attempted to leave the courtroom. The trial judge ordered appellant not to leave the courtroom. Appellant stated that he was refusing to stay in the courtroom. The trial judge then charged appellant with a second charge of direct criminal contempt and ordered that appellant be arrested and placed in the county jail. The record reveals the sounds of a struggle which ensued. As he was attempting to leave the courtroom, appellant pushed one of the deputies.

At the contempt hearing a few hours later, appellant was given the opportunity to call his own witnesses and to explain his actions. Appellant contends that the trial judge should have recused himself from the contempt hearing because (1) he was too personally involved in the matter to adjudicate a fair ruling; and (2) the trial judge was involved in two prior contempt hearings in which appellant was held in contempt. The trial judge refused to recuse himself, stating that he had no personal animosity toward appellant and that the contempt charges were necessary to uphold the court's authority and dignity. The trial judge then held appellant in direct criminal contempt for (1) refusing to dress properly in court; and (2) disrupting court proceedings by attempting to leave the courtroom prior to the conclusion of the hearing.

II. STANDARD OF REVIEW

The district court has inherent power to sanction for contempt. N.M. Const. art. VI, Sec. 13; State v. Wisniewski, 103 N.M. 430, 708 P.2d 1031 (1985). Contumacious words or acts expressed in the presence of the court constitute direct criminal contempt. Wisniewski, 103 N.M. at 434, 708 P.2d at 1035. In imposing punishment for criminal contempt, the court must look at the seriousness of the consequences of the contumacious behavior, the public interest in enforcing termination of defendant's defiance, and the importance of deterring future defiance. State v. Pothier, 104 N.M. 363, 721 P.2d 1294 (1986). "Commitments and fines for criminal contempt are imposed for the purpose of vindicating the authority of the court and are punitive in nature and intended as a deterrent to offenses against the public." International Minerals & Chem. Corp. v. Local 177, United Stone & Allied Prods. Workers, 74 N.M. 195, 198, 392 P.2d 343, 345 (1964).

Conduct violating a court order in the court's presence constitutes direct criminal contempt. Roybal v. Martinez, 92 N.M. 630, 593 P.2d 71 (Ct.App.1979). A trial judge may preserve order and decorum in the court and may punish contempts. See NMSA 1978, Sec. 34-1-2 (Repl.Pamp.1990). A trial judge may exercise contempt sanctions to preserve authority and respect for the courts. See Wisniewski, 103 N.M. at 434, 708 P.2d at 1035.

Appellant argues that the trial court's order of contempt was based on actions which do not constitute contempt. In reviewing whether the trial court erred in holding appellant in criminal contempt, we determine whether there was sufficient evidence constituting proof beyond a reasonable doubt. See In re Stout, 102 N.M. 159, 692 P.2d 545 (Ct.App.1984). However, in reviewing the evidence, we view the evidence in the light most favorable to the verdict. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).

III. EVIDENCE OF CONTEMPT

On appeal, appellant argues that his conduct did not constitute contempt. First, we address the charge of direct criminal contempt against appellant based on his refusal to obey the trial judge's order to uphold the decorum of the court by unbuttoning his top button and loosening his conventional tie. We then discuss the contempt based on appellant's disrupting the court proceedings.

A. The Tie Incident

A review of the record indicates that appellant wore his conventional tie in a customary manner throughout most of the proceedings, however, appellant subsequently undid his collar and loosened his tie during court proceedings. The trial judge directed appellant to fix his tie because the hearing was not yet over. Appellant refused to adhere to the court's direct order and the trial judge found appellant in direct criminal contempt.

We hold that the evidence was sufficient to sustain a finding of criminal contempt beyond a reasonable doubt. There is no question that appellant knew of the trial judge's requirement regarding neckwear. This incident occurred approximately three months following a similar incident where appellant had been held in criminal contempt for wearing a bandanna contrary to the same trial judge's order. See State v. Cherryhomes, 114 N.M. at 496-97, 840 P.2d at 1262-63. Here, appellant, up until the time of the confrontation, was wearing a conventional necktie as well as a bandanna. The trial judge apparently did not object to the bandanna since appellant was wearing the conventional necktie. The contempt arose when appellant unloosened his necktie and pulled down his bandanna and refused to obey the trial judge's directive that he fasten his necktie. As we said in State v. Cherryhomes, it is inappropriate for an attorney to take on the court even if he feels there is a legitimate basis not to comply with a court order. There are proper avenues available to challenge the efficacy of the dress code. Here, because the evidence demonstrates that appellant violated a court order, the trial judge properly invoked his inherent power to issue a contempt sanction to preserve the authority of the court and maintain its respect and dignity. See Wisniewski, 103 N.M. at 434, 708 P.2d at 1035.

B. Attempting to Leave Courtroom and Pushing Deputy

Next, we address appellant's second charge of direct criminal contempt for interrupting court proceedings by attempting to leave the courtroom prior to the...