Smith v. US

• Decision Date: 30 May 1996
• Docket Number: No. 92-CO-1419,93-CM-789 and 93-CO-1044.,92-CO-1419
• Citation: 677 A.2d 1022
• Parties: Loretta SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

677 A.2d 1022

Loretta SMITH, Appellant, v. UNITED STATES, Appellee.

Nos. 92-CO-1419, 93-CM-789 and 93-CO-1044.

District of Columbia Court of Appeals.

Argued October 27, 1995.

Decided May 30, 1996.

Laura Hankins, Public Defender Service, with whom James W. Klein, Public Defender Service, was on the brief, for appellant.

Lisa A. Hertzer, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Elizabeth Trosman, Gregory E. Jackson, and Cynthia G. Wright, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, C.J., and FARRELL and REID, Associate Judges.

REID, Associate Judge:

This case grows out of an acrimonious relationship between appellant Loretta Smith, and Ms. Cathy Hughes and Mr. Jeffmajors Graham. The acrimony is traceable to a broken personal relationship between Mr. Graham and Ms. Smith, and an existing personal relationship between Mr. Graham and Ms. Hughes. On May 12, 1992, Ms. Smith was charged with one count of malicious destruction of property, in violation of D.C.Code § 22-403 (1989 repl.). She was alleged to have broken flowerpots outside the home of Ms. Ann Fitzgerald, the mother of Mr. Graham. Ms. Smith was acquitted of the malicious destruction charge on April 14, 1993. However, she was twice convicted of criminal contempt for failure to obey a judicial "stay away" order while she awaited trial on the malicious destruction charge. Ms. Smith appeals both of her contempt convictions. We affirm the first contempt conviction. However, we reverse and remand the second with instructions to vacate the sentence and set aside the order of contempt.

FACTUAL SUMMARY

On May 12, 1992, a Superior Court Hearing Commissioner conditionally released Ms. Smith on her own recognizance, after her arrest for malicious destruction of property. One of the written conditions of release, imposed at the request of the government, without objection, specified that Ms. Smith was to "stay away" from Mr. Graham, Ms. Hughes and Ms. Fitzgerald. Ms. Smith personally signed the release form which included the "stay away" order. The following statement appeared beside her signature: "I understand the penalties which may be imposed on me for violation of any condition of release and agree to comply with the conditions of my release. . . ." At the top of the release form appeared the words: "You are hereby released on the conditions indicated below: These conditions will be in effect until your case is disposed of or until they are changed or amended by a Judge."

During a status hearing on June 2, 1992, the government advised the court that Ms. Smith "admitted tearing up the garden" of Ms. Fitzgerald but "denied damaging a brick wall." Further, the government reported, Ms. Smith had violated the conditions of her release by making several harassing telephone calls. When the government asked the trial court "to issue a stay-away order and no contact with Mr. ... Graham and Ms. ... Hughes," the trial court retorted: "That order is in effect in any event." Ms. Smith's counsel replied: "The order is in effect and she's abided by it since the day of arraignment." Further, the trial court addressed Ms. Smith directly and said: "In addition, ma`am, you are currently under the Court's order to stay away from and have no contact whatsoever with Mr. ... Graham, Ms. ... Hughes and Ms. . . . Fitzgerald. Do you understand that"? Ms. Smith responded, "Yes."

The First Contempt Incident

On July 2, 1992, Mr. Graham called the police from a pay phone in Maryland and then from his car phone to report that Ms. Smith had followed him, in her car, from a local car wash to a store in Maryland and back to the District of Columbia. He stated that at the intersection of Rhode Island Avenue and Eastern Avenue, Northeast, Ms. Smith had pulled her car alongside his and cursed him. When the police arrived on the scene in Northeast Washington, Ms. Smith sped away. The police chased her to South Dakota Avenue and Bladensburg Road, Northeast before losing sight of her.

Ms. Smith was arrested on July 7, 1992, as a result of an arrest warrant issued on July 3, 1992. On July 17, 1992, the government moved for a contempt hearing. After setting forth a summary of the July 2, 1992, incident, the government asked the trial court to "hold a hearing pursuant to D.C.Code § 23-1329(c) on whether the defendant should be held in contempt of court for violating the conditions of her pretrial release on July 2, 1992." A footnote to the government's motion advised the trial court of additional steps taken to apprise Ms. Smith of the grounds for criminal contempt: "To insure that defense counsel has adequate time to prepare for a hearing on the motion, the government has included with counsel's copy of this motion copies of all discoverable documents regarding the July 2nd incident." These documents included a police officer's summary of the complaint and the arrest, the affidavit in support of an arrest warrant, and a summary of the complainant's report.¹ The contempt hearing was held on August 17, 1992. At the beginning of the hearing, the government asked the trial court to take judicial notice of the stay away order dated May 12, 1992. The government specifically stated: "This case involves the violation of that stay-away." Ms. Smith's counsel responded by saying, in part: "I would only clarify that ... she was ordered to stay away from Mr. ... Gram (sic) and Ms. Fitzgerald ... and Ms. ... Hughes. . . . Those are the three names that are on the stay-away order." In response to counsel's statements, the trial court said: "The Court certainly can take judicial notice of its own Court records and documents. And the order in question is signed by Commissioner Jerry Byrd and is dated May 12th, 1992. And it does indicate that the defendant is to stay away from Mr. ... Gram sic, Ms.... Hughes and ... Ms. Fitzgerald." Ms. Smith's counsel replied: "That's correct, Your Honor."

Counsel for Ms. Smith also raised an issue under Super. Ct.Crim. R. 42(b), indicating that "the Court has not issued a show cause order per se to be here — stating the facts why she should not be held in contempt." She went on to "ask ... has the Court made a finding that the application be treated as an Information in this respect, has it met all the elements of the contempt violation"? If not, counsel advised that she "would move to dismiss the application for contempt hearing based on failure to state all essential elements of the cause of action, that being contempt of court." The trial court responded:

The Court certainly did not issue a written order to show cause. The Court did that verbally on two occasions while the defendant and her counsel were present. The Court indicated that she would hear the motion to adjudicate contempt on this occasion. The Court certainly believes that the application made by the government is appropriate and does meet all necessary requirements. That is the reason the Court is having this hearing today.

Counsel for Ms. Smith did not take issue with the trial court's statement. He simply said: "Thank you, Your Honor" and proceeded to make his opening statement.

Mr. Graham testified at the hearing and recounted the events of July 2, 1992. He left his home in Northwest Washington around 11 a.m. that day and drove to a Northwest car wash. There he saw Ms. Smith in a green BMW. She walked past him to a telephone while he was waiting for his car to be washed. When he left the car wash, Mr. Graham noticed that he was being followed by a green BMW. He stopped at a natural food store in Maryland, and Ms. Smith pulled her car across the street from the store. Mr. Graham called the police and asked for Detective Dill who was not immediately available. However, Detective Dill soon returned his call and instructed him to alert the local police of the stay away order. By this time, Ms. Smith had parked directly in front of the store, entered the building and positioned herself at arm's length from Mr. Graham while he was on the telephone. The local police told Mr. Graham to return to the District which had jurisdiction over Ms. Smith. When Mr. Graham proceeded to return to the District, Ms. Smith followed him to an intersection in Northeast Washington. When Mr. Graham's car stopped, she pulled abreast of him and said: "You, you m_____ f_____, you are not going to get away with trying to make me look like a fool and I'm not going to allow that to happen." Mr. Graham then made a U-turn, and Ms. Smith followed. She again pulled alongside Mr. Graham and stated:

You little m_____ f_____, you're not going to get away with this. That sissy ass United States attorney, . . . he's not here and there's no one here to identify. . . there's no witness here and this is between me and you and let's see how you're going to get out of this. . . . I'm going out of town and when I get back before this summer is over, I'm going to f_____ you up.

Ms. Smith drove away when the police arrived.

Other witnesses for the government included Detective Dill and two police officers who responded to Mr. Graham's call for assistance. The only witness called for the defense was Mr. Graham.

At the conclusion of the evidence and the closing arguments of counsel, the trial court found Mr. Graham's testimony to be "credible, extremely credible." Ms. Smith was adjudged guilty of contempt because "she knowingly and intentionally violated this Court's order, that is, the Court's order which was part of her conditions of release to stay away from Mr. . . . Gram sic." Ms. Smith was released on bond pending sentencing for criminal contempt. Before releasing Ms. Smith, the trial court again spoke directly to her: "Ms. Smith, you're still under the Court's order to stay away from and have no contact whatsoever with Mr. Graham, Ms. . . . Hughes and Ms. ... Fitzgerald, do you understand, ma`am"? Ms. Smith replied, "Yes."

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