State v. Ryan
Decision Date | 15 August 1978 |
Docket Number | No. 6297,6297 |
Citation | 59 Haw. 425,583 P.2d 329 |
Parties | STATE of Hawaii, Plaintiff-Appellee, v. Joseph A. RYAN, Defendant-Appellant. |
Court | Hawaii Supreme Court |
Syllabus by the Court
1. A judgment of contempt entered in summary proceedings is subject to review on appeal where record discloses that the offense was neither committed in the immediate view and presence of the court or committed under such circumstances that the court had knowledge of all the facts constituting the offense. HRS § 710-1077(5).
2. The absence of an attorney from court premises when his presence in court proceedings was required was an offense committed out of the presence of the court.
Joseph A. Ryan pro se.
James F. Nagle, Deputy Prosecuting Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
Defendant attorney appeals from a summary conviction of contempt of court for not appearing at a scheduled district court hearing. Upon our review of the record in connection with certain motions, it appeared to us that the trial court had ordered summary conviction and disposition under HRS § 710-1077(3) (a), in which event the judgment would be excluded by HRS § 710-1077(5) from review by appeal. Accordingly, we ordered that the parties prepare memoranda addressing that question. We conclude that the offense was not one for which summary conviction and disposition could be ordered, and that an appeal may be taken from the judgment of contempt.
On July 20, 1976, James Richard Stone appeared for trial before the Honolulu District Court as the defendant in a driving while intoxicated charge under HRS § 286-155. Stone's counsel, the appellant here, was not present. Stone represented that appellant was then in federal court. The judge stated for the record that there had been no request for a continuance from appellant. Stone then agreed to proceed to trial without an attorney.
On July 29, 1976, further proceedings were had in the matter. At the hearing on that date, wherein appellant for Stone moved alternatively for a new trial, arrest of judgment and mitigation of sentence, appellant was asked by the court to explain his previous nonappearance. Appellant stated that he was at the United States District Court, that he believed he knew the day before his absence that he would have a federal court trial, and that other than by sending Stone to explain his whereabouts he did not inform the court that he would be late. The court adjudged appellant in contempt under HRS Section 710-1077 and fined him $100, without indicating which clause of Section 710-1077(1) it found that he had violated. Appellant was at no time ordered to appear before the court to answer a charge of criminal contempt.
HRS § 710-1077 provides in pertinent part:
The State contends that the conviction was under subsection (3)(a) and is expressly not subject to review by appeal under subsection (5). A conviction under subsection (3)(b) is subject to review by appeal under HRS § 641-12. Although the sentence evidences the district court's election to treat the offense as a petty misdemeanor, the court did not indicate under which subsection it was proceeding. The conviction must be regarded as under subsection (3)(b), although the procedural requirements of that subsection were not followed, if the offense was neither committed in the immediate view and presence of the court nor committed under such circumstances that the court had knowledge of all the facts constituting the offense, as required for a proceeding under subsection (3)(a). In re Bettencourt, 55 Haw. 430, 521 P.2d 668 (1974).
The majority of federal and state courts that have been confronted with the question of how to classify absence from court proceedings have viewed nonappearance as a contempt out of the presence of the court. In re Lamson, 468 F.2d 551 (1st Cir. 1972), United States v. Willett, 432 F.2d 202 (4th Cir. 1970), United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973), In re Allis, 531 F.2d 1391 (9th Cir. 1976), Rogers v. Superior Court, 2 Ariz.App. 556, 410 P.2d 674 (1964), District Attorney v. District Court, 150 Colo. 136, 371 P.2d 271 (En Banc 1962), Harthun v. District Court, 178 Colo. 118, 495 P.2d 539 (1972), Lee v. Bauer, 72 So.2d 792 (Fla.1954), People v. Westbrook, 242 Ill.App. 338 (1926), In re Henry, 32 Mich.App. 654, 189 N.W.2d 96 (1976), Ex parte Clark, 208 Mo. 121, 106 S.W. 990 (1907), La Pera v. Snider, 240 N.W.2d 862 (N.D.1976), Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183 (1971), Annotation, 97...
To continue reading
Request your trial-
Swisher v. US
...of the summary contempt power. Logic is surely strained by the notion that absence amounts to presence. State v. Ryan, 59 Hawaii 425, 429, 583 P.2d 329, 332 (1978) (per curiam). As the court pointedly observed in Klein v. United States, 80 U.S.App.D.C. 106, 108, 151 F.2d 286, 288 (1945) (pe......
-
IN RE DOE
...as indirect contempt: failure of an attorney to appear at a hearing without prior notice to the court, see State v. Ryan, 59 Haw. 425, 426, 583 P.2d 329, 331 (1978) and tardiness in appearing in court, Wong v. Frank, 9 Haw.App. 249, 256, 833 P.2d 85, 90 (1992). However, a defendant's failur......
-
Evans v. Takao
...(1982). Other contumacious offenses are deemed indirect constructive criminal contempt. See HRS § 710-1077(3)(b) (1985); State v. Ryan, 59 Haw. 425, 583 P.2d 329 (1978); In re Bettencourt, 55 Haw. 430, 521 P.2d 668 (1974); Gabriel, 7 Haw.App. at 99, 746 P.2d at In the present case, Takao ha......
-
Contempt in Interest of M.P., Matter of
...Ohio, 166 Ohio St. 62, 139 N.E.2d 36 (1956); Taylor v. District Court for Fourth Jud. Dist., 434 P.2d 679 (Alaska 1967); State v. Ryan, 59 Haw. 425, 583 P.2d 329 (1978). As we have stated, the question of whether an attorney's tardiness is conduct committed in the actual presence of the cou......