Robinson v. State

• Decision Date: 22 August 1973
• Docket Number: No. 7,7
• Citation: 308 A.2d 712,19 Md.App. 20
• Parties: James Victor ROBINSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

19 Md.App. 20

308 A.2d 712

James Victor ROBINSON v. STATE of Maryland.

No. 7.

Court of Special Appeals of Maryland.

Aug. 22, 1973.

Norman N. Yankellow, Baltimore, on brief, for appellant.

Francis B. Burch, Atty. Gen., James L. Bundy, Asst. Atty. Gen., and Milton B. Allen, State's Atty., for Baltimore City, on brief, for appellee.

Argued before GILBERT, MENCHINE and SCANLAN, JJ.

SCANLAN, Judge.

The appellant, James Victor Robinson, was summarily convicted of a criminal contempt committed in the presence of the court by Judge Charles D. Harris of the Criminal Court of Baltimore who sentenced him to six months in jail. The question presented on Robinson's appeal from the lower court's order is whether it erred in finding him in contempt.

On July 7, 1972, the appellant was arrested and charged with kidnapping. He was committed to the Baltimore City Jail where he remained both before and after the return of an indictment on August 16, 1972. While in jail, he filed in the court below what purported to be a 'Petition for Writ of Certiorari' but was actually a habeas corpus petition complaining that he was being 'illegally restrained of his liberty by the Warden of the Baltimore City Jail.' ¹

On November 17, 1972, Nelson Kandel, Esq., entered his appearance as counsel for the appellant. On that same day, a hearing was held before Judge Harris on the appellant's petition. The following then transpired:

'MR. KANDEL: It is the contention of the relator, I of course agree with him, that there is no necessity for a trial. Even in the Police reports it's exculpatory. However, I am aware that the Grand Jury has indicted him and I have also contacted the State's Attorney and indicated the same thing I have just proffered to the Court, and the State's Attorney has set it in for January 8th before Judge Cole in Part 7. However, Mr. Robinson, who has been in jail since June of 1972, is at a loss to explain the delay. Is that about it?

'MR. ROBINSON: No. There is nothing in here to constitute an arrest. There is nothing in here that the Grand Jury should have accepted.

'THE COURT: I'm not arguing.

'MR. ROBINSON: I'm not arguing with you either. Are you familiar with this?

'MR. KANDEL: No we can't-

'MR. ROBINSON: Well make him familiar with it, read it to him.

'THE COURT: Mr. Kandel, you had better take your client and-

'MR. KANDEL: Your Honor, what Mr. Robinson wants me to tell you is there is not a scintilla of evidence, there is no evidence at all that involves him with the crime. We have discussed this. I agree with everything he contends. However, I have explained to him that a Court and the Judge that hears the case when it's called for trial would have to make this determination and no other Judge could make this determination since the Grand Jury has indicted him. We both have gone over this and Mr. Robinson I believe understands it.

'MR. ROBINSON: No, I don't.

'MR. KANDEL: Your Honor, I have nothing further to say in this regard because there is nothing further that can be said at this point. I believe in his innocence and he believes in his innocence and I believe it can be established at the trial. He's getting impatient for trial.

'THE COURT: On the basis of the statements made thus far I find no legal reason for the issuance of a writ of habeas corpus and the application will be denied.

'MR. ROBINSON: I wasn't under the impression you called me for a writ of habeas corpus. Have you read the police report? Go away, what are you talking about, Mr. Kandel.

'THE COURT: Mr. Robinson, I find you in contempt of court and sentence you to six months dating from today.'

Pursuant to Article 26, Section 4 of the Code and Rule P3 b. of the Rules of Procedure, the trial court then prepared and filed a written order of contempt. In pertinent part, the order states that:

'The defendant in the above indictments filed a petition in this Court on October 26, 1972, alleging that he was 'illegally restrained of his liberty by the Warden of the Baltimore City Jail', and prayed that a writ of habeas corpus issue for his release. A hearing was held on said petition in open court on November 17, 1972, at which time the defendant was represented by his attorney, Nelson R. Kandel, Esq. The Court was informed by Mr. Kandel that a date had been set for the trial of the above indictments, and as the Court found that no valid ground had been alleged or shown for the issuance of the writ of habeas corpus, the Court denied the petition for such writ. The defendant then became insolent, threatening, and uncontrolable in his behavior to both the Court and his counsel, and further exhibited such behavior as to obstruct the administration of justice and to interfere with the dignity and decorum of the Court, whereupon the Court found the defendant, after unheeded admonitions to him, to be guilty of direct contempt of court, and imposed a sentence of six months' imprisonment from November 17, 1972.'

A contempt committed in the presence of the court was an offense at common law and the right to punish its commission was inherent in all courts. Ex Parte Terry, 128 U.S. 289, 303, 9 S.Ct. 77, 32 L.Ed. 405 (1888); Ex Parte Maulsby, 13 Md. 625, 635 (1859). The judicial power to punish for a direct contempt has been codified in Article 26, Section 4 of the Ann.Code of Maryland (1973 Repl. Vol.). That Section, however, is merely declaratory of the several categories of actions which constitute a direct contempt. Goldsborough v. State, 12 Md.App. 346, 354, 278 A.2d 623 (1971); and see Weaver v. State, 244 Md. 640, 644, 224 A.2d 684 (1966). Among the direct contempts enumerated in Article 26, Section 4, is 'the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice . . ..' It was such a direct contempt of which Judge Harris found the appellant guilty.

In determining whether the appellant's actions before the trial judge amounted to a criminal contempt punishable by a six months jail sentence, we take into account the often expressed admonition 'that a summary contempt proceeding should be the exceptional case.' State v. Roll, 267 Md. 714, 298 A.2d 867, 878 (1973), affirming Roll v. State, 15 Md.App. 31, 288 A.2d 605 (1972). The right to punish for a direct criminal contempt by summary conviction is a power that is essential to the protection and existence of courts of justice. Muskus v. State, 14 Md.App. 348, 358, 286 A.2d 783 (1972); Goldsborough v. State, supra, 12 Md.App. at 354, 278 A.2d 623. Nevertheless the limits of that power are the 'least possible power adequate to the end proposed.' Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965). Courts are constrained to remember that the power 'to immediately and summarily hold a person in contempt is awesome and abuses of it must be guarded against.' State v. Roll, supra, 267 Md. at 732, 298 A.2d at 878; see Bloom v. Illinois, 391 U.S. 194, 202, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) and cases cited therein. In our opinion, that 'awesome' power was abused in this case and the appellant's conviction must be vacated.

Rule P3 b. provides that:

'Where a direct contempt is committed, the court shall sign a written order to that effect. The order shall recite the facts, be signed by the judge and entered of record. The order shall state which of the facts were known to the court of its own knowledge and as to any facts not so known, the basis for the court's finding with respect thereto.' (Emphasis added.)

According to the draftsmen of Maryland Rule P3 b., ² its language was derived from Federal Rule 42(a) of the Federal Rules of Criminal Procedure which states that:

'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.'

The requirement of Rule 42(a) that a summary 'order of contempt shall recite the facts' is more than a formality. 'It is essential to disclosure of the basis of decision with sufficient particularity to permit an informed appellate review.' Tauber v. Gordon, 350 F.2d 843, 845 (3rd Cir. 1965). Similarly, the purpose of Rule P3 b. in requiring the contempt order to 'recite the facts' which constitute the alleged contempt is to enable an appellate court to determine, by an inspection of the record, whether a contempt has in fact been committed. (Emphasis added.) Kandel v. State, 252 Md. 668, 670, 250 A.2d 853 (1969). In addition to its observance in Maryland and in the federal system, it is also the majority position in other jurisdictions that an order or judgment of direct contempt must contain a statement of the facts on which the decision is based, the purpose being to enable an appellate court to determine by an inspection of the record, whether a contempt has in fact been committed and whether the court had jurisdiction to punish it. Necessity and Sufficiency of Making and Recording Subsidiary or Detailed Findings Supporting Adjudication of Direct Contempt, 154 A.L.R. 1227, 1228 (1945). See, e. g., Alexander v. Sharpe, 245 A.2d 279, 288 (Me. 1968). The requirement is rooted in due process considerations. Ibid.

In determining whether an order of contempt sufficiently sets forth the facts giving rise to the claimed contempt, conclusionary language and general citations to the record will not suffice; the specific facts constituting the contempt must be set out in the order. United States v. Marshall, 451 F.2d 372, 375 (9th Cir. 1971); 154 A.L.R., supra at 1238-1249; and see Alexander v. Sharpe, supra.

We too have applied the requirement that specific facts, not mere judicial conclusions, must be stated in a contempt order before a person can be deprived of his liberty upon a summary conviction for direct contempt. I...