State v. North

• Decision Date: 01 May 2009
• Docket Number: No. 07-250.,07-250.
• Citation: 2009 VT 40,978 A.2d 435
• Parties: STATE of Vermont v. James R. NORTH.
• Court: Vermont Supreme Court

978 A.2d 435

2009 VT 40

STATE of Vermont v. James R. NORTH.

No. 07-250.

Supreme Court of Vermont.

May 1, 2009.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. SKOGLUND, J.

Defendant appeals from the district court's order of contempt. He claims the district court abused its discretion by holding him thrice in contempt and imposing three consecutive sentences of five to six months, one for each contemptuous statement. We affirm in part and reverse in part.

¶ 2. The relevant facts are undisputed. On June 5, 2007, the Chittenden District Court imposed an effective sentence of three to twenty years for obtaining property by false pretenses or tokens in violation of 13 V.S.A. § 2002 and passing bad checks in violation of 13 V.S.A. § 2022. As defendant was being led from the courtroom, the following exchange occurred:

DEFENDANT: Go fuck yourself, Your Honor.

COURT: Bring him back here please. Bring him back here. I'm holding the Defendant in contempt of Court. He'll serve an additional five to six months for contempt of Court for cursing at the judge.

DEFENDANT: Go fuck yourself —

COURT: Okay. That's another five to six months for contempt of Court consecutive. Do you want to keep going, Mr. North?

DEFENDANT: [unclear]

COURT: Another five to six months. Fifteen to eighteen months consecutive, in addition to the three to twenty years.

¶ 3. On June 7, 2007, pursuant to its summary contempt authority under Vermont Rule of Criminal Procedure 42(a), the district court issued a signed order of contempt reciting the preceding exchange, clarifying that in his third statement, defendant called a member of the court's family a vulgar, obscene name, and imposing 3 five-to-six-month sentences, one for each infraction, each consecutive to any other sentence imposed. This appeal followed.

¶ 4. Defendant concedes the propriety of the first contempt finding, but urges us to either overturn the second and third findings of contempt or amend the sentences to run concurrently. He argues that: (1) the court should have referred the second and third contempts to another judge for non-summary procedures; (2) the court's invitation of his third statement rendered it non-contemptuous; and (3) any sentences imposed for the contempts should run concurrently to each other. We agree only with defendant's third argument.

¶ 5. We review the district court's order of contempt for abuse of discretion. In re Duckman, 2006 VT 23, ¶ 7, 179 Vt. 467, 898 A.2d 734. As we explained recently in Duckman, "[t]rial courts have discretion to issue contempt orders, and reversal of a contempt judgment is appropriate only if the trial court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable." Id. (quotation omitted). However, we cautioned that "[w]e review the exercise of this discretion carefully in cases of summary contempt because in those proceedings the otherwise inconsistent functions of prosecutor, jury and judge are united in one individual." Id. (quotation omitted).

¶ 6. Defendant's first claim is that the second and third allegedly contemptuous statements should have been referred to another judge for non-summary proceedings because his personal attack distorted the court's judgment and caused it to lose "that calm detachment necessary for fair adjudication." Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). We disagree.

¶ 7. Under the Vermont Rules of Criminal Procedure, criminal contempt is punishable in two ways. "A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." V.R.Cr.P. 42(a). This kind of contempt is commonly referred to as direct contempt. See, e.g., Whitaker v. Cloverdale Town Council, 902 N.E.2d 885, 887 n. 2 (Ind.Ct.App.2009) ("Direct contempt ... involves actions in the presence of the court, such that the court has personal knowledge of them."). Alternatively, contempt not punishable under summary proceedings may be punished upon notice and hearing under Rule 42(b). In this more formal procedure, "[i]f the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent." V.R.Cr.P. 42(b).

¶ 8. Although non-summary proceedings for contempt involving disrespect to or criticism of a judge may require referral to another judge, we have rejected the notion that all direct contempts involving personal insults must be referred to another judge for proceedings pursuant to Rule 42(b). State v. Allen, 145 Vt. 593, 601, 496 A.2d 168, 172 (1985). In Allen, we reasoned that "[a] rule requiring that all flagrant personal insults be responded to only after delay would undermine the court's dignity and its authority." Id. Furthermore, we explained that because a judge is not "merely an individual," but rather "represents the authority of the law," when "a single remark insults both the individual judge personally and the sovereign authority that the judge represents, the personal aspect does not require use of the delayed procedure of [Rule] 42(b)." Id. at 601, 496 A.2d at 172-73. We cautioned, however, that "because there is always the possibility that a personal insult will cause the trial judge to lose that calm detachment necessary for fair adjudication, this Court must be ever watchful for distortion of the judge's sound discretion." Id. at 601, 496 A.2d at 173 (quotations omitted).

¶ 9. A trial court abuses its discretion by punishing a personally insulting direct contempt summarily, rather than referring it to another judge for non-summary proceedings, when the record shows that the court harbored personal feelings against the contemnor or where the contempt is so severely insulting that we must assume such feelings exist. See United States v. Meyer, 462 F.2d 827, 839 (D.C.Cir.1972) ("[O]nce a judge has been personally attacked in such a manner that a judge of ordinary sensibilities might naturally be expected to harbor marked personal feelings against the attacker, the law must assume that such feelings exist." (quotation marks and emphasis omitted)). Because the severity of the contempt at issue in this case did not exceed that which we expect trial courts to meet with professionalism and self-restraint, and because we see no evidence that the court lost its composure, we hold that the court acted within its discretion in punishing defendant's contempts summarily.

¶ 10. Defendant's second claim is that the court's question, "Do you want to keep going, Mr. North?" invited his final statement and thus rendered it non-contemptuous. Although we would not condone a court taunting a contemnor by imposing punishment and inviting further discourse in the same breath, in this case the court's question served more as a warning than an invitation.

¶ 11. "The historic power of summary contempt grew out of the need for judicial enforcement of order and decorum in the courtroom and to compel obedience to court orders." Sacher v. United States, 343 U.S. 1, 22, 72 S.Ct. 451, 96 L.Ed. 717 (1952). By longstanding tradition, courts are empowered "to impose silence, respect, and decorum[ ] in their presence," Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821), and we have long recognized that the "power to punish for contempt is indispensable to the proper discharge of [courts'] duties." In re Cooper, 32 Vt. 253, 257 (1859). Courts have broad discretion in summary contempt, but discretion has its limits. "Absolute discretion, like corruption, marks the beginning of the end of liberty." New York v. United States, 342 U.S. 882, 884, 72 S.Ct. 152, 96 L.Ed. 662 (1951) (Douglas, J., dissenting).

¶ 12. Several jurisdictions have taken the position that otherwise contemptuous statements are not punishable when invited by the court. The Louisiana Supreme Court has held that a statement in "`response to a question by the judge which seemed to invite and encourage further verbal sparring' is not contemptuous." State v. Bullock, 576 So.2d 453, 458 (La. 1991) (quoting In re Masinter, 355 So.2d 1288, 1291 (La.1978)). The Maryland Court of Special Appeals held that a judge may not find a defendant guilty of contempt after engaging in a dialogue that may provoke the defendant to commit the contempt. Johnson v. State, 100 Md.App. 553, 642 A.2d 259, 264 (Ct.Spec.App.1994). These cases, however, presented more egregious provocation, invitation, and encouragement than the current case.

¶ 13. In Bullock, the court responded to the defendant's third "fuck you" with: "No, you, Mr. Bullock. Three counts in direct contempt of court consecutive, 18 months. Do you want to go for two years?" By beginning the retort with "No, you, Mr. Bullock," the court provoked the defendant by insulting him directly. Here, the court made no such insult. In Johnson, the court responded to the defendant's multiple vulgar, contemptuous statements by asking "What's wrong with you?" and proceeding to hold him in contempt ten consecutive times. That open-ended question explicitly invited and encouraged further dialogue. Here, in contrast, the court's yes-or-no question was a warning.

¶ 14. Because the court did not provoke, invite, or encourage the defendant's contemptuous statements, it acted within its discretion in punishing them.

¶ 15. Finally, we turn to defendant's claim that any contempt sentences should run concurrently rather than consecutively. Citing Bullock, he claims that where multiple acts are part of the same contemptuous episode, the appropriate penalty is concurrent sentences to run...