State v. DeLong

• Decision Date: 28 February 1983
• Parties: STATE of Maine v. Tammy DeLONG.
• Court: Maine Supreme Court

Page 877

456 A.2d 877

STATE of Maine v. Tammy DeLONG.

Supreme Judicial Court of Maine.

Argued Jan. 10, 1983.

Decided Feb. 28, 1983.

David M. Cox, Dist. Atty., Gary F. Thorne (orally), Asst. Dist. Atty., Bangor, for plaintiff.

Hall, DeSanctis & Schultz, Julio DeSanctis, III (orally), Bangor, for defendant.

Before McKUSICK, C.J., and CARTER, VIOLETTE and WATHEN, JJ.

CARTER, Justice.

During a jury trial in Superior Court (Penobscot County), the presiding justice found the defendant in this appeal, Tammy DeLong, in direct contempt of court and sentenced her to seven days in the Penobscot County Jail. The defendant appeals the action of the trial justice. We deny the appeal.

Tammy DeLong, age 15, is the alleged victim of gross sexual misconduct and unlawful sexual contact by her adoptive father, the defendant, Larry DeLong. Tammy DeLong testified on the State's behalf before the grand jury and at a hearing on a motion to suppress. On August 18, 1982, Tammy DeLong was subpoenaed to testify at Larry DeLong's trial.

On August 23, 1982, after a jury was sworn, the trial justice excused the jury and called Tammy DeLong to the witness stand. The prosecutor and defense counsel had informed the justice that Tammy did not want to testify at the trial. The justice inquired of her concerning her desire not to testify. The justice explained the importance to the State and to the defendant, Larry DeLong, of proceeding with the trial. The justice also informed her that a refusal to testify would be contempt of court and would be punishable by up to six months in jail.

Tammy DeLong stated to the justice that she would not testify. She gave the justice two letters, one written by her, explaining why she had decided not to testify, and one written by the DeLong family physician, recommending that she be excused from testifying to avoid further "emotional scars." She maintained her refusal to testify and pleaded the fifth amendment. The justice then appointed counsel for her and again explained the consequences of her refusal to testify. The prosecutor informed the justice that Marie DeLong, wife of defendant Larry DeLong, and natural mother of Tammy, also did not intend to testify. The justice appointed counsel for Mrs. DeLong.

After an opportunity to consult with appointed counsel, Tammy DeLong was again called to testify. She adamantly refused to respond to questions and stated: "I don't want to testify because I love my father and I've forgiven him for what he done to me." The justice ordered her to answer the prosecutor's questions. After her continued refusal, the justice found her in direct criminal contempt of the court.

Her counsel disavowed any legal justification for her refusal to testify or for her claim of a fifth amendment privilege. Counsel did request that the justice either permit Tammy DeLong not to testify or allow time for a psychiatric examination and hearing on the issue. The justice refused these requests and sentenced Tammy DeLong to seven days in the county jail. Her counsel immediately filed an appeal and moved for a stay of execution and for admission to bail. Bail was set. Because Tammy's mother was also found to be in contempt of court, the justice committed Tammy to the custody of the Department of Human Services pending appeal.

On August 24, 1982, the trial of the defendant Larry DeLong resumed. Tammy DeLong maintained her refusal to testify. Her mother did testify during the second day of trial and the judgment of contempt against her was stricken. Due to the unavailability of the defendant, Larry DeLong, the justice granted a mistrial. Tammy's counsel then moved for a reduction of her sentence for contempt; the justice denied the motion. The justice granted the request to remove the special condition of bail, which placed her in the custody of the Department of Human Services, and committed her to her mother's custody.

The defendant, Tammy DeLong, challenges both the judgment of contempt and the sentence imposed. Although we agree with none of these contentions, we discuss each briefly.

I. Jurisdiction

The defendant first challenges the jurisdiction of the Superior Court to enter a judgment of contempt against a juvenile because the District Court, acting as the Juvenile Court, has exclusive jurisdiction of juveniles alleged to have committed juvenile crimes. 15 M.R.S.A. § 3101(1) (1980). We think that the Juvenile Code does not require that conclusion and that the policy underlying criminal contempt will not permit that conclusion.

The Commentary to section 3104 concerning jurisdiction of the Juvenile Code notes that the Juvenile Code, unlike the predecessor statute, contains no provision for contempt powers. 15 M.R.S.A. § 3104, Commentary (1979). Although the Commentary concludes that "the juvenile court presumably has contempt powers," the basis for the conclusion is found in the inherent contempt powers of courts of record. See 4 M.R.S.A. § 151 (1979). The conclusion is not based on any consideration of the exclusivity of the jurisdiction of the Juvenile Court. The Commentary seeks to establish that the Juvenile Court should be permitted to exercise contempt powers "[b]ecause the juvenile court is functionally the District Court," and does not establish that only the Juvenile Court has such contempt powers concerning juveniles.

Maine authority has established that courts of record have inherent contempt power. In Re Holbrook, 133 Me. 276, 283, 177 A. 418, 420 (1935); Morrison v. McDonald, 21 Me. 550, 556 (1842); Glassman, Maine Practice, § 42.1 at 384 (1967). In addition, 4 M.R.S.A. § 114 (1979) expressly provides that the Superior Court may punish for contempt. A commonsense consideration of the policy underlying the concept of contempt of court reveals that no one court can exercise exclusive jurisdiction over contempt proceedings. Under M.R.Crim.P., Rule 42(a), ¹ a court may summarily punish a criminal contempt if the conduct constituting the contempt was committed in the presence of the trial justice. This power of a court is directed toward misbehavior that brings that particular court into disrepute and that interferes with the orderly conduct of that court's business. In Re Bernard, 408 A.2d 1279, 1282 (Me.1979). The power is used only in "exigent circumstances," when "summary vindication of the court's dignity and authority [is] necessary." Bernard, 408 A.2d at 1282 (citing Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767, 773 (1925)).

We refuse to hold that a Superior Court justice who, in the exercise of his informed discretion, determines that a juvenile has willfully interfered with the business of the court, thereby impugning the court's dignity and authority, is without power to act. Such a holding would require removal to the District Court for a hearing, in order to acquaint that judge with the situation. That procedure would utterly emasculate the immediate punishment encompassed in a summary action for criminal contempt, which dispenses with notice and hearing. Alexander v. Sharpe, 245 A.2d 279, 282 (Me.1968); Stern v. Chandler, 153 Me. 62, 68, 134 A.2d 550, 553 (1957) (quoting Ex Parte Terry, 128 U.S. 289, 308, 9 S.Ct. 77, 81, 32 L.Ed. 405, 410 (1888)). Further, that holding would create the anomalous situation of requiring the District, or Juvenile, Court to vindicate an affront to, or interference with, the operation of the Superior Court, rather than permitting the impugned court to rectify the situation. See Thomas v. State, 21 Md.App. 572, 573, 578, 320 A.2d 538, 541 (1974) (ruling that only juvenile court has jurisdiction of juvenile contempt "would erode the authority of the judge to conduct court proceedings in an orderly manner, strip the trial court of its right to deal with contemptuous, disruptive juvenile witnesses ... and throw open wide the door to conduct creating chaotic courtroom conditions.")

We have consistently noted that this extraordinary power "cannot be denied the trial judge in an appropriate case without inviting or causing such obstruction to the orderly and impartial administration of justice as would endanger the rights and safety of the entire community." Bernard, 408 A.2d at 1282; see also Alexander v. Sharpe, 245 A.2d at 282 ("It has long been recognized that the power of a court to punish summarily for a contempt committed in the presence of the Court is inherent in the nature and constitution of a court and necessary for the court to possess in the exercise of all its other powers.") The beneficiary of a summary criminal contempt action is the court itself; the purpose of the penalty imposed is "punishment for an affront to or disrespect of the law." Glassman, § 42.2 at 384 (quoting Stern, 153 Me. at 66, 134 A.2d at 552). The rehabilitative processes of the Juvenile Court, 15 M.R.S.A. § 3002, are unnecessary and irrelevant to vindicating the dignity of our courts. See State v. Wilson, 409 A.2d 226, 228 (Me.1979) (juvenile guilty of night hunting "not in need of rehabilitative processes of the juvenile court system.")

II. Abuse of Discretion

The defendant next argues that even if the court had jurisdiction to find her in contempt, the court abused its discretion in summarily finding the defendant in contempt pursuant to M.R.Crim.P., Rule 42(a). Rather, the defendant argues that the matter should have been considered at a later hearing, ² as provided by M.R.Crim.P., Rule 42(b), thus giving the defendant time to prepare her defense.

A contempt of court has been defined as "any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice or to lessen its authority or dignity." Holbrook, 133 Me. at 280, 177 A. at 420. As noted, if the penalty imposed is, in part at least, to punish for the affront to the law, the contempt is criminal. Stern, 153 Me. at 66, 134 A.2d at 552. We have previously stated that there are two types of criminal contempt under Rule...