State v. Boyd

• Decision Date: 03 April 1981
• Docket Number: No. 15064,15064
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Clarence E. BOYD and Steven M. Askin.

Page 829

276 S.E.2d 829

166 W.Va. 690

STATE of West Virginia v. Clarence E. BOYD and Steven M. Askin.

No. 15064.

Supreme Court of Appeals of West Virginia.

Decided April 3, 1981.

Syllabus by the Court

1. "A circuit court has no power to proceed summarily to punish for contempt of such court except in the instances enumerated in Code, 1931, 61-5-26." Syllabus Point 2, State ex rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681 (1966).

2. The rule with regard to contempt of court by an attorney begins with a recognition that under our adversary system of justice zealous advocacy on the part of an attorney must be permitted. Consequently, it is only when his conduct is boisterous or disrespectful to the degree that it constitutes an imminent threat to the administration of justice that summary punishment for contempt will be authorized.

Askin & Burke and D. Michael Burke, Martinsburg, for appellant.

Chauncey H. Browning, Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

In this case we must determine whether there was sufficient evidence to warrant the trial court's imposition of fines, in the amounts of $25, $50, $50 and $25, for four separate acts of alleged contempt committed by attorney Steven M. Askin, the appellant, during the course of a criminal trial.

The event that precipitated the first contempt citation occurred when Mr. Askin, the defendant's attorney, was questioning a defense psychologist, a Dr. Bell, in regard to the defendant's insanity. He asked Dr. Bell, whether in reaching an opinion regarding the defendant's insanity, he had relied upon written opinions from a psychiatrist who worked at Weston State Hospital along with Dr. Bell. The prosecuting attorney objected to this question. Defense counsel, in the course of arguing that the question was proper, cited State v. Pendry, W.Va., 227 S.E.2d 210 (1976), to the court but the court ruled that the question was inadmissible because the response would be hearsay.

Defense counsel stated he would like to make a record on this point. The judge replied he did not need the law read to him and defense counsel replied, "And you're telling me I can't do it?" The court then excused the jury and proceeded to fine the attorney $25 for contempt. ¹ Whereupon the attorney requested a mistrial on the basis that he could not continue if he were fined every time he objected to the court's ruling. This brought a $50 fine and when the defense counsel moved again for a mistrial, the court imposed a further $50 fine. ²

The court then ordered that the jury be returned to the courtroom. At this point, the attorney sought a recess in order to compose himself and the court granted a recess. ³ During the recess, the court reminded the attorney that he could not address a judge as he had been doing without risking a fine of contempt. The attorney responded that he was obliged to make his record and denied that he was being insolent and concluded by saying, "I'm being respectful as I can." Whereupon, the judge imposed the final fine of $25. ⁴

We have not recently had occasion to discuss at any length what actions on the part of an attorney may give rise to a summary contempt fine. We have traditionally held that our contempt statute, W.Va.Code, 61-5-26, restricted the common law power to punish summarily for contempt by limiting this power to only those acts enumerated in the statute. This point was made in State ex rel. Arnold v. Conley, 151 W.Va. 584, 588, 153 S.E.2d 681, 684 (1966):

"In State ex rel. McNinch v. Porter, 105 W.Va. 441, pt. 2 syl., 143 S.E. 93, it was held that, notwithstanding the common law right of courts to punish for contempt, a circuit court may not proceed and punish summarily for acts other than those enumerated in the statute. To the same effect, see State v. Hansford, 43 W.Va. 773, pt. 1 syl., 28 S.E. 791."

The provisions pertinent to the present case are subsections (a) and (c) of W.Va.Code, 61-5-26: ⁵

"(a) Misbehavior in the presence of the court or so near thereto to obstruct or interrupt the administration of justice;

"(c) misbehavior of an officer of the court, in his official character; ..."

Although we have not considered W.Va.Code, 61-5-26, as solely defining the substantive grounds for all contempt, ⁶ it should be noted that subsection (a) states that the contemptuous conduct must be committed in the presence of the court and it must "obstruct or interrupt the administration of justice." This is essentially the test evolved by the United States Supreme Court in In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), where an attorney made continued attempts to offer proof on an issue that the judge had ruled inadmissible. The attorney announced he would continue the offer of proof until "some bailiff stops us." The Supreme Court declined to affirm the contempt and quoted from its earlier case of Ex Parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656, 658 (1919):

" 'An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted....' " 370 U.S. at 234, 82 S.Ct. at 1291, 8 L.Ed.2d at 437.

The Supreme Court in McConnell went on to state:

"The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty." 370 U.S. at 236, 82 S.Ct. at 1292, 8 L.Ed.2d at 438.

One other element, before a contempt fine will be upheld, is that the obstruction has to be imminent and not remote. This requirement is set out in Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947):

"The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil."

See also, Eaton v. Tulsa, 415 U.S. 697, 698, 94 S.Ct. 1228, 1229, 39 L.Ed.2d 693, 695 (1974); In Re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, 711 (1972).

The general law follows the foregoing Supreme Court cases. The rule with regard to contempt of court by an attorney begins with a recognition that under our adversary system of justice zealous advocacy on the part of an attorney must be permitted. Consequently, it is only when his conduct is boisterous or disrespectful to the degree that it constitutes an imminent threat to the administration of justice that summary punishment for contempt will be authorized. The following cases support this principle and in each instance the contempt conviction was reversed. Weaver v. Superior Court, 572 P.2d 425 (Alaska 1977) (attorney, accused by judge, of delaying trial through long voir dire, moved for a mistrial and was then cited for contempt); In re Carrow, 40 Cal.App.3d 924, 115 Cal.Rptr. 601 (1974) (attorney held in contempt for statement, "Your honor, I submit this trial is becoming a joke."); In re Schwartz, 391 A.2d 278 (D.C.App.1978) (attorney had made repeated attempts to object and the court thought this was designed to delay the proceedings); State v. Pokini, 55 Haw. 430, 521 P.2d 668 (1974) (contempt charge against attorney for speaking at a motion hearing without being recognized by the court and for refusing to be seated); People v. Miller, 51 Ill.2d 76, 281 N.E.2d 292 (1972) (sarcastic and injudicious comments including the threat of appealing the case caused the court to hold attorney in contempt); In re Sanborn, 208 Kan. 4, 490 P.2d 598 (1971) (attorney advised by judge to make only general objections to expedite trial, he continued to state grounds for objections to preserve the record); In re Meizlish, 72 Mich.App. 732, 250 N.W.2d 525 (1976) (attorney's persistent argument to obtain a reduction in bail for his client after court had set bail resulted in contempt fine); People v. Kurz, 35 Mich.App. 643, 192 N.W.2d 594 (1971) (attorney held in contempt 107 times for failing to abide by court rules designed to expedite trial); Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980) (attorney objecting to hearsay, placed in contempt when judge asked if he knew what hearsay was and he replied, "Yes I do, do you?"); Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978) (attorney cited for contempt for his objections and statement, "May my client be seated as well, or is he to be flagellated in front of the jury.")

It need hardly be stated that the requirement of zealous representation is not a new one. It is embodied in Canon 7 of the Code of Professional Responsibility. ⁷ Implicit in this duty of zealous representation is a recognition that there may be occasions when, in the heat of advocacy, statements may be made that are injudicious. We spoke to much this same point in State v. Jasper, 78 W.Va. 385, 389, 88 S.E. 1096, 1098 (1916), where an attorney was found not guilty of contempt in filing a plea to quash indictments on the ground that the judge had improperly influenced the grand jury. A second charge of contempt was sustained when the attorney directed his clients not to answer certain questions:

"It is the duty of counsel, when addressing the court in the interest of his client, to combat and contest any adverse views of the judge expressed in the argument, and to protest against any course the judge may take which he thinks detrimental to the interest of his client. Much freedom and latitude should be allowed an attorney, ..."

In the present case, we do not find Mr. Askin's remarks to be boisterous or disrespectful to the...