State v. Brown, 12925

Citation70 Haw. 459,776 P.2d 1182
Decision Date19 June 1989
Docket NumberNo. 12925,12925
PartiesSTATE of Hawaii, Plaintiff-Appellee, v. Bernadine L. BROWN, Defendant-Appellant.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. Criminal contempt, as the term denotes, is punitive in purpose. Thus, one accused of criminal contempt is entitled to the benefit of all constitutional safeguards; he cannot be convicted except by proof beyond a reasonable doubt. And intent is an essential element of the crime.

2. Criminal contempt is defined in Hawaii Revised Statutes (HRS) § 710-1077(1); it is punishable generally as a misdemeanor. The trial court, however, may treat the commission of an offense defined in HRS § 710-1077(1) as a petty misdemeanor.

3. If the trial court treats the offense as a petty misdemeanor, HRS § 710-1077 requires that the trial, if any, upon the charge shall be by the court without a jury and guilt must be proved beyond a reasonable doubt.

4. A failure to appear in court as required is an offense not committed in the immediate view and presence of the court.

5. Wilfulness in a context of criminal contempt means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of a court order.

6. A fair trial in a fair tribunal is a basic requirement of due process. Fairness requires an absence of actual bias in the trial of a case.

7. Our system of law has always endeavored to prevent even the probability of unfairness. To this end, no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.

8. The disqualification of judges on grounds of personal bias or prejudice in favor of or against a party, kinship with counsel or a party, pecuniary interest in a case, and prior involvement in a case does not prevent unfairness in all cases.

9. Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.

10. When criminal contempt is charged, it signifies that the accuser believes the defendant's conduct was contemptuous. A procedure whereby the trial, if any, upon the charge shall be by the judge who lodged it, without a jury, denies the accused due process.

11. Justice must satisfy the appearance of justice.

12. This court's general admonition to judges is that a judge should avoid impropriety and the appearance of impropriety in all his activities. It therefore expects that a judge will disqualify himself in a proceeding in which his impartiality might reasonably be questioned. But a judge owes a duty not to withdraw from a case--howevermuch his personal feelings may incline him to do so--where the circumstances do not fairly give rise to an appearance of impropriety and do not reasonably cast suspicion on his impartiality.

Dan S. Ikehara (Anson O. Rego, A Law Corp., of counsel), Honolulu, for defendant-appellant.

G. Cher Foerster, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.


NAKAMURA, Justice.

Bernadine L. Brown was charged with criminal contempt of court because she failed to appear in the District Court of the First Circuit for trial on a charge of promoting a detrimental drug. 1 She was convicted of contempt after a bench trial conducted by the judge whose order she was accused of disobeying, and she appeals. Concluding from a review of the record that the conviction cannot be upheld because the State did not prove a wilful disobedience of the court's mandate and the accuser sat in judgment of the defendant, we reverse the trial court.


In May of 1987 Ms. Brown was concurrently a defendant in a criminal case pending in the District Court of the First Circuit and a defendant in a case pending in the United States District Court for the District of Hawaii. She was represented by a court-appointed attorney in the state proceeding but was without counsel in the other. A hearing in the federal case was scheduled for May 26, 1987; subsequently the state court set aside the same date for the continued trial of the defendant's case. Ms. Brown was not in court when the continued trial was scheduled, her presence having been waived by counsel.

When the state case was called at 1:30 p.m. on May 26th, counsel informed the presiding judge, Judge Richard Lum, that the defendant was not present because of the scheduling conflict. Judge Lum thereupon directed counsel to call the clerk of the federal court to ascertain the defendant's presence there. Counsel learned, however, that the defendant left the federal court in the morning at the conclusion of the hearing in her case. When Judge Lum was so advised, he ordered that counsel's statement be made a matter of record. He then issued a bench warrant for the defendant's arrest. But this did not culminate in a summary contempt proceeding.

A criminal contempt proceeding against Ms. Brown was instituted thereafter, and trial thereon was set for January 22, 1988. When the case was called for trial on January 22nd before the judge then presiding, Judge Marcia Waldorf, the deputy prosecuting attorney assigned to the case objected to her hearing the matter. The case, the prosecutor asserted, "must be heard before Judge Lum" since "the facts of contempt are known to [him]." Judge Waldorf advised the prosecutor that his stance might well be apt in a summary contempt proceeding, but it was "most unusual that a Contempt of Court trial need[ed] to be [heard by] any particular judge." Nonetheless, she continued the case for trial by Judge Lum.

Before proceeding to trial on the contempt charge, the defendant moved for the recusal of Judge Lum, arguing his impartiality could be questioned on several grounds. She maintained he was a possible witness and also might be biased because she was appealing the judgment he rendered in the drug possession case. The judge denied the motion "because we have the record." "We just make sure," he added, "that Miss Brown would be given a day in court."

When Ms. Brown's "day in court" on the contempt charge began, Melvin Wong, who defended Ms. Brown in the drug possession case, testified that he was advised of the scheduling of the case for continued trial on May 26, 1987. He said he was so informed a week before the scheduled trial date and in turn informed the defendant. Ms. Brown testified that when she apprised Mr. Wong of the federal court hearing set for May 26th, he told her about a hearing "in the state district court that afternoon." She further testified that when she informed the federal court of the scheduling conflict, she was told to seek a continuance of the state court matter. And after speaking to Mr. Wong, she was under the impression that he would "take care of the state court matter for her."

Judge Lum, however, found the defendant "was aware of the [state court] hearing on May 26, 1987, at 1:30," no motions were filed "to inform the court [of] a conflict," no objections were raised to the scheduling of the state court hearing, and the defendant "did not show up for the court proceeding which was specially set for [her]." He adjudged her guilty of criminal contempt of court and assessed a fine of $100. The defendant moved unsuccessfully for reconsideration of the decision on grounds that an intent to disobey the court was not shown and she was not accorded a fair trial before an impartial tribunal.


Ms. Brown urges reversal of the trial court's judgment on the grounds upon which its reconsideration was sought. We begin our analysis of the issues posed on appeal with an overview of the offense of criminal contempt of court.


Criminal contempt, as the term denotes, "is punitive in purpose." Murray v. Murray, 60 Haw. 160, 162, 587 P.2d 1220, 1222 (1978). Thus, one accused of criminal contempt "is entitled to the benefit of all constitutional safeguards, and cannot be convicted except by proof beyond a reasonable doubt[.]" Hawaii Pub. Employment Relations Bd. v. Hawaii State Teachers Ass'n (HPERB v. HSTA), 55 Haw. 386, 392, 520 P.2d 422, 426 (1974). And "[i]ntent is an essential element" of the crime. Id.

The crime is defined in HRS § 710-1077(1); it is punishable generally as a misdemeanor. HRS § 710-1077(2). By reason of HRS § 710-1077(1)(g), one would be guilty of contempt of court if "[h]e intentionally disobeys or resists the process, injunction, or other mandate of a court[.]" The court, however, "may treat the commission of an offense [defined in HRS § 710-1077](1) as a petty misdemeanor, in which case:

(b) If the offense was not committed in the immediate view and presence of the court, nor under such circumstances that the court has knowledge of all of the facts constituting the offense, the court shall order the defendant to appear before it to answer a charge of criminal contempt of court; the trial, if any, upon the charge shall be by the court without a jury; and proof of guilt beyond a reasonable doubt shall be required for conviction."

HRS § 710-1077(3)(b). We have ruled that a failure to appear as required by the court is an offense not committed in the immediate view and presence of the court. State v. Ryan, 59 Haw. 425, 428, 583 P.2d 329, 332 (1978).

"Whenever any person is convicted of criminal contempt of court or sentenced therefor, the particular circumstances [must] be fully set forth in the judgment and in the order or warrant of conviction." HRS § 710-1077(5). A "failure of the trial court to comply with [this requirement,]" we have said, "warrants a reversal [of the conviction]." State v. Schutter, 60 Haw. 221, 222, 588 P.2d 428, 429 (1978). And "[i]n any proceeding for review of the judgment, sentence, or commitment, no presumption of law shall be made in support of the jurisdiction to...

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