State v. Zahn
| Decision Date | 22 April 1997 |
| Docket Number | No. 960190,960190 |
| Citation | 562 N.W.2d 737 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Wayne ZAHN, Defendant and Appellant. Criminal |
| Court | North Dakota Supreme Court |
Robert P. Bennett, Assistant Attorney General, Attorney General's Office, Bismarck, for plaintiff and appellee.
Thomas E. Goven, Valley City, for defendant and appellant.
¶1 Wayne Zahn appeals from a district court order finding him in contempt of court. We affirm, concluding the district court did not abuse its discretion in finding Zahn in contempt.
¶2 Zahn and an acquaintance, Ida Fregien, were each charged with disorderly conduct following an altercation between them. Zahn appeared in Dickey County District Court on July 18, 1996, as a witness for the State in Fregien's trial. Because Zahn had previously engaged in disruptive behavior in the courthouse and in the courtroom, the district court warned him about possible contempt charges if such behavior continued.
The district court charged him with contempt under N.D.C.C. § 27-10-01.3.
¶3 Zahn appeals from the July 18, 1996, contempt order of the Dickey County District Court. The district court had authority to issue the order under N.D.C.C. § 27-10-01.3(2). We granted Zahn's motion for stay pending appeal on July 22, 1996. This Court has jurisdiction under N.D. Const. Art. VI, § 2, and N.D.C.C. § 27-10-01.3(3). This appeal is timely under N.D.R.App.P. 4(c).
¶4 Under N.D.C.C. § 27-10-01.1(1):
"The ultimate determination of whether a contempt has been committed is within the trial court's sound discretion." City of Grand Forks v. Dohman, 552 N.W.2d 69, 70 (N.D.1996); Mehl v. Mehl, 545 N.W.2d 777, 780 (N.D.1996). "The decision will not be overturned on appeal unless there is a plain abuse of discretion." Dohman; Mehl. "A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner." Dohman.
¶5 Zahn argues under the Fifth Amendment privilege against self-incrimination, he cannot be forced to testify in Fregien's trial. Therefore, he argues, the trial court abused its discretion in charging him with contempt for refusing to testify.
¶6 "The Fifth Amendment to the United States Constitution provides an accused with a privilege against self-incrimination: 'No person ... shall be compelled, in any criminal case, to be a witness against himself.' " State v. Beaton, 516 N.W.2d 645, 647 (N.D.1994); see also N.D. Const. Art. I, § 12 ().
¶7 Zahn argues because he is a "co-defendant" in this case, he has the same rights under the Fifth Amendment as the defendant. See State v. His Chase, 531 N.W.2d 271, 273 (N.D.1995) (). Zahn was, however, a witness on behalf of the State in Fregien's trial. The privilege against self-incrimination applies to him not as a defendant, but as a witness.
¶8 A witness can invoke the privilege against self-incrimination. Matter of Contempt of Grajedas, 515 N.W.2d 444, 449 (N.D.1994). "The witness must claim the privilege 'with respect to particular questions.' " Grajedas (quoting American State Bank of Dickinson v. Stoltz, 345 N.W.2d 365, 369 (N.D.1984)). Therefore, Zahn did not have a constitutional right to a blanket refusal to testify. See Grajedas at 449 ().
¶9 The district court found Zahn in contempt and ordered him incarcerated for ten days. See N.D.C.C. § 27-10-01.3(2) (); see also N.D.C.C. § 27-10-01.4(2)(b) ().
¶10 In its order on summary contempt, the court imposed the ten-day incarceration "for the purpose of preserving order in the Court and to protect the authority and dignity of the Court." See N.D.C.C. § 27-10-01.3(2) ().
¶11 Under N.D.C.C. § 27-10-01.1(c), "[i]ntentional disobedience, resistance, or obstruction of the authority, process, or order of a court" constitutes contempt.
¶12 Intentional disobedience of a court order constitutes contempt. N.D.C.C. § 27-10-01.1(c); Blaesing v. Syvertson, 532 N.W.2d 670, 671 (N.D.1995). A court order can be oral. E.E.E., Inc. v. Hanson, 318 N.W.2d 101, 105 n. 4 (N.D.1982). At the trial, the court told Zahn to move to the other side of the courtroom, away from Fregien. Zahn refused and proceeded to leave. The court ordered Zahn not to leave. As Zahn continued toward the door, the court placed him in contempt.
¶13 We recognize the "necessity of maintaining the dignity of and respect toward the courts." 17 Am.Jur.2d Contempt § 1 (1990). The court has the inherent power to maintain order in the courtroom. In Interest of J.S., 530 N.W.2d 331, 335 (N.D.1995); Davidson v. State, 591 So.2d 901, 902-03 (Ala.Cr.App.1991). The power to control proceedings in the courtroom includes controlling the conduct of witnesses. See Monaco v. Cecconi, 180 Mont. 111, 589 P.2d 156, 161 (1979) ().
¶14 A court can punish disrespectful behavior "even when the behavior is a reaction to a court order which eventually is determined to be invalid." Kidd v. Caldwell, 371 So.2d 247, 252 (La.1979). Any disobedience of a court order is inherently disrespectful of the court. Matter of Schaeffer, 370 A.2d 1362, 1363 (D.C.1977). "Absent a showing of transparent invalidity or patent frivolity surrounding the order, it must be obeyed until stayed or reversed by orderly review." Kidd.
¶15 Generally, a court should give "fair warning that the continuance of certain conduct would risk contempt," unless the conduct is clearly contemptuous. 17 Am.Jur.2d Contempt § 178 (1990). If a warning is required, the district court can rely only on conduct subsequent to the warning in finding a person in contempt. See 17 Am.Jur.2d Contempt § 178 (1990) ().
¶16 "A person may be held in contempt for refusal to obey a subpoena duly served on him in a pending action." 17 Am.Jur.2d Contempt § 138 (1990). Zahn was not, however, under subpoena.
¶17 A warning is required where the conduct is not clearly contemptuous. See Dohman at 71 (); 17 Am.Jur.2d Contempt § 178 (1990). Zahn refused to follow the judge's order and proceeded to leave the courtroom. We conclude Zahn's statement he intended to leave and his conduct indicating he was leaving were "clearly contemptuous" without prior warning.
¶18 Even if there had been a duty to warn, the court clearly warned Zahn. At the beginning of the trial, the court said:
¶19 In State v. Goeller, 263 N.W.2d 135, 139 (N.D.1978), this Court stated the warning must make clear the "specific sanction to be imposed for the repetition of the conduct." ( trial court's contempt order imposing a ten-day jail sentence for giggling, laughing, and smirking in the courtroom, without a clear warning as to the specific sanction to be imposed)....
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