State v. Alexander

• Decision Date: 17 October 1969
• Citation: 257 A.2d 778
• Parties: STATE of Maine v. Grover G. ALEXANDER.
• Court: Maine Supreme Court

Page 778

257 A.2d 778

STATE of Maine v. Grover G. ALEXANDER.

Supreme Judicial Court of Maine.

Oct. 17, 1969.

John W. Benoit, Jr., Asst. Atty. Gen., Augusta, for plaintiff.

Grover G. Alexander, Gray, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

On July 7, 1967 Grover G. Alexander, an attorney-at-law, was summarily adjudged guilty of criminal contempt for disrespectful, defiant and insolent conduct in the course of a civil trial in which he represented the plaintiff. He was sentenced to imprisonment in the county jail for the term of 5 days and ordered to pay a fine of $500. Surrendering himself to the Sheriff, Alexander at the same time filed a petition for the writ of habeas corpus before a Justice of this Court who issued the writ and ordered a hearing thereon. From the subsequent dismissal of the writ, an appeal was taken to this Court. Alexander v. Sharpe, 1968, Me., 245 A.2d 279. Although the appellant had erroneously sought appellate relief from the contempt proceedings through habeas corpus and could have been summarily refused consideration for such error, this Court nevertheless proceeded to grant the requested review, treating the case as though the appellant had properly appealed from the contempt judgment.

Our Court, in its opinion, affirmed the lower court's finding of guilt as it stated at page 283 thereof that '(p)etitioner's accusation of prejudice (against the presiding justice) was clearly an act of contempt of court.' However, due to the lower court's failure to comply with the requirements of Rule 42(a), M.R.Crim.P., the appeal was sustained and the case was ordered remanded to the Superior Court for Cumberland County 'where the Justice below shall file the certificate provided for in M.R.Crim.P., Rule 42(a), and, upon notice to petitioner, shall have him brought before the same Justice in that Court for sentence.'

In compliance with the mandate, the justice below filed the following certificate on August 29, 1968:

'STATE OF MAINE

Cumberland, §§

Superior Court

In Re: Grover G. Alexander

Defendant in Contempt

I hereby certify that I was the Presiding Justice at a Term of our Superior Court begun and held at Portland, within and for the County of Cumberland on the first Tuesday of June A.D. 1967, and that on July 6, 1967, at a session of said Court, during the trial of the civil actions of Edison A. Doughty, Jr. and Edison A. Doughty, Sr. vs. Oscar L. Anderson, civil docket numbers 67-230 and 67-231, at a time in the examination of the witness Richard L. Johnson, in open Court, in the presence of the Court and the Jury hearing the case, Grover G. Alexander, Esq., counsel for the Plaintiffs, made the following statements and conducted himself in the following manner, to wit:

He accused the Presiding Justice of being prejudiced against him by stating to the Court: 'I think it demonstrates your prejudice without doubt.'

Almost immediately before making the above statement, at a time when the Presiding Justice was speaking and admonishing Plaintiffs' counsel to be orderly, the said Grover G. Alexander, Esq., standing directly before the bench, continued to speak in a tone of voice and manner both rude and disrespectful, and belligerently shook his finger at the Court while continuing to address the Court, refusing to heed the Court's admonition.

I do further certify that the foregoing conduct and language of Grover G. Alexander, Esq., was committed in open Court, in the presence of the Presiding Justice and that it was seen and heard by me as such presiding Justice, and was also seen and heard by the Jury selected to serve as jurors in the cases and sitting in the jury box.

And I do further certify that on July 7, 1967, I found the said Grover G. Alexander, Esq. guilty of contempt of Court on the basis of the language and conduct of the said Grover G. Alexander, Esq. as specifically set forth above, which language and conduct I found contemptuous of the Court, degrading to the administration of justice and disrupting to the orderly procedure of the Court.

Dated at Portland, Maine this twenty-ninth day of August 1968.

/s/ (Presiding Justice)

Justice, Superior Court'

Pursuant to the suggestion of this Court at page 286 of its opinion, the appellant was offered before resentence opportunity for allocution, a right which he fully exercised. The presiding justice again condemned Alexander to imprisonment in the county jail for the term of 5 days and in addition thereto to pay a fine of $500. An appeal to this Court was filed forthwith and execution of the sentence was stayed pending its determination. Prior to perfection of his appeal appellant on September 6, 1968 made a motion before the justice below for a judgment of acquittal and, in the alternative, for a new trial on the grounds that his constitutional rights of due process and to jury trial had been violated, points of grievances which he had fully developed in his previous appeal and which have been decided against him by this Court. Alexander v. Sharpe, supra. These motions were dismissed by the presiding justice for want of jurisdiction. The appellant renews in his points on appeal all these previously considered grievances of alleged constitutional dimension underlying his motion for acquittal or for new trial, and in addition thereto claims error below for the following reasons:

'9. The present conviction and sentence is barred by reason that the appellant has been formerly placed in jeopardy for the same alleged offense.'

'12. The inclusion in the present record of a certificate wherein conduct on the part of the appellant is alleged outside of the reported record, and the denial of the right of appellant to produce contrary evidence by way of a new trial or otherwise deprives appellant of due process as provided by the State and Federal Constitutions as hereinbefore set forth.'

'13. The Court erred in dismissing Appellant's Motions for acquittal, New Trial and otherwise.'

'14. The punishment is harsh and excessive and is prohibited by State and Federal Constitutions.'

The remand from this Court was clear and unambiguous; it contained no intricate problems of execution. Our opinion in Alexander v. Sharpe, supra, indicated this Court's single concern which arose from the lower court's non-compliance with the requirements of Rule 42(a), M.R.Crim.P. We pointed out that without the justice's certificate we could only infer that the proffered accusation of prejudice against the presiding justice exemplified in the record on appeal was the basis-and the only basis-of the judgment and sentence. Our mandate to the Superior Court permitted it to resume jurisdiction of the case but with specific instructions limiting its action therein to the filing of the required certificate and the resentence of the appellant. We may assert anew that '(t)he purpose of Rule 42(a) is to present to a reviewing court a full and clear statement of the facts out of which the contempt arose so that that court may determine whether the action of the committing court was within its jurisdiction and whether its action was just or arbitrary.' Alexander v. Sharpe, supra, at page 288. This Court concluded that a person's right of appeal from a conviction of contempt in summary proceedings necessitates as a matter of due process that all the essential facts supporting the finding of guilt be extended in written certificate as required by Rule 42(a), M.R.Crim.P., so that appellate review of the lower court action may be meaningful. Conviction should not rest on presumptions or inferences, nor on facts which did not occur in the presence of the court. The remand for the filing of the certificate and for resentence did not set aside the lower court's adjudication of appellant's guilt of contempt. This Court has the power and authority to open the renalty aspect of the judgment without affecting the finality of the adjudication of guilt. The presiding justice has now strictly complied with the plain terms of this Court's mandate. He could not vary it, nor examine it for any other purpose than its execution. He could not give the appellant any other or further relief. Sibbald v. United States, 1838, 12 Pet. 488, 9 L.Ed. 1167. Our Court has so stated the rule in civil cases. See, Whitney v. Johnston, 1904, 99 Me. 220, 58 A. 1027; Simpson v. Richmond Worsted Spinning Co., 1929, 128 Me. 344, 147 A. 426. A like rule is applicable in criminal cases. United States v. Howe, 1922, 2d Cir., 280 F. 815, 23 A.L.R. 531. See, State v. Cole, 1923, 123 Me. 340, 122 A. 871; In re Hume, 132 Me. 102, 167 A. 79.

This Court's mandate finally ended the case so far as the adjudication of guilt was concerned and the lower court...