Thomas v. State
| Decision Date | 01 September 1993 |
| Docket Number | No. 647,647 |
| Citation | 99 Md.App. 47,635 A.2d 71 |
| Parties | Charles Leon THOMAS, Jr., v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Nancy C. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.
Jonathan R. Krasnoff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County of Rockville, on the brief), for appellee.
Submitted before ALPERT, FISCHER and MOTZ, JJ.
Appellant, Charles Leon Thomas, Jr., was charged with unauthorized use of a motor vehicle. Appellant appeared in the Circuit Court for Montgomery County for a hearing on a bench warrant. During that hearing, the circuit court twice held appellant in contempt of court; two thirty day sentences were imposed on appellant. On appeal, appellant raises a single question:
Did the lower court improperly hold appellant in direct contempt of court?
The facts giving rise to this appeal are straight forward and undisputed. On April 13, 1993, appellant appeared before the circuit court, as a result of a bench warrant. The judge initially asked appellant why he had failed to appear in court on February 12, 1993. When appellant responded that he didn't know where he was on that date, the court asked, "what is the State's position on bond?" The prosecutor responded that a cash bond was suggested but "it doesn't have to be a high cash bond." Shortly thereafter, the following colloquy took place:
Then when he came back out in here he had another what I consider to be contemptuous attitude toward this Court. Good luck in representing him, Mr. PD.
DEFENDANT: That's just bullshit, man.
(Whereupon, the hearing was concluded.) 1
Appellant asserts that reversal is required because (1) he was not given "an opportunity to speak" prior to imposition of the first finding of contempt, and, if given that opportunity, he might "well have apologized to the court;" (2) the second contempt finding "was an arbitrary and oppressive application of the court's criminal contempt power;" and (3) contrary to Md.Rule P3(b), there was no written order reciting the facts and the basis for the court's findings.
At issue in this case are two judgments of direct, criminal contempt, arrived at after summary proceedings. "A 'direct contempt' means a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings." Md.Rule P1a. It is to be contrasted with a "constructive contempt," which is a "contempt which was not committed in the presence of the court, or so near to the court as to interrupt its proceedings." Md.Rule P1b. A criminal contempt is "punishment for past misconduct which may not necessarily be capable of remedy" and so its penalty need not contain a purging provision. State v. Roll and Scholl, 267 Md. 714, 728, 298 A.2d 867 (1973). On the other hand, civil contempt proceedings are "remedial" and "intended to preserve ... the rights of private parties" and "coerce future compliance" and so a penalty for civil contempt "must provide for purging." Id. See generally Betz v. State, 99 Md.App. 130, 635 A.2d 77 (1993). Summary punishment of direct, criminal contempt, i.e. without any right to notice, opportunity to be heard, right of counsel, or trial by jury, is an ancient right designed to fill the "need for immediate penal vindication of the dignity of the court...." Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925). Because it is contrary to the usual procedure constituting due process, id., it "always and rightly, is regarded with disfavor," Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952) and to be used only in "unusual situations ... where the instant action is necessary to protect the judicial institution itself." Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 356, 15 L.Ed.2d 240 (1965). This does not mean, however, that in order to constitute direct, criminal contempt punishable by summary proceedings the contemptuous conduct must "bring to a halt the proceedings in progress." Mitchell v. State, 320 Md. 756, 763, 580 A.2d 196 (1990). Rather,
[i]t takes but a moment of time to hurl a vile epithet at a judge or jury, but such conduct in a court room will not be tolerated, and may properly be addressed summarily.
It seems clear that the language that formed the basis for the first judgment of contempt, i.e., "Fuck that judge" and calling the judge a "fucker," did, in fact, constitute precisely the sort of "vile epithet" that is properly considered a direct, criminal contempt. Indeed, appellant does not argue to the contrary. What appellant asserts is that he was not given a "brief opportunity" for allocution "prior to imposition of the sentence" for the first contempt here, as was his asserted right under Mitchell v. State, supra. He claims that if he had been given this opportunity, he "might well have apologized to the court." This argument is not persuasive for two reasons.
First, although the Court of Appeals in Mitchell did hold that in that case the "alleged contemnor" should have been given a "brief opportunity for allocution" prior to imposition of sentence for the alleged direct, criminal contempt, the court expressly noted that due process did not require "that an alleged contemnor must, in every instance, be given" this opportunity. 320 Md. at 768, 580 A.2d 196. Rather, the Mitchell court specifically recognized:
In some cases, affording a defendant an opportunity to speak in explanation of his conduct may only invite additional invective. Furthermore, where the conduct or speech is as direct or unequivocal as it was in the case before us, there may be little or no room for helpful explanation.
Id. at 768, 580 A.2d 196. The record clearly indicates that the case at hand was one in which affording the defendant an opportunity to speak only invited "additional invective" and the nature of his contemptuous speech left little room for "helpful explanation." Thus, this was not the sort of case in which the alleged contemnor must be given an opportunity for allocution before imposition of sentence.
Moreover, even if a "brief opportunity for allocution" was required prior to imposition of the sentence here, the transcript reflects that appellant was afforded such an opportunity. Indeed, appellant spoke, not once, but twice before sentence for the first contempt was imposed, and several times after that:
(emphasis added). On none of these occasions did he "become contrite" or "effectively communicate an appropriate apology." Id. Instead, he continued his contemptuous behavior. For all of these reasons, appellant's first asserted basis for reversal is meritless.
His second, that the other contempt judgment was an "arbitrary and oppressive application of the court's criminal contempt power," is not so easily disposed of. The conduct leading to the second contempt sentence was not as clearly contemptuous as that leading to the first contempt sentence. The "whatevers" were obviously annoying and far too casual to be appropriate in a judicial setting; however, it is impossible to conclude from the cold record alone that the "whatevers" constituted direct, criminal contempt. See Roll and Scholl, 267 Md. at 728, 298 A.2d 867; Robinson v. State, 19 Md.App. 20, 27, 308 A.2d 712 (1973). See also, Bloom v. Illinois, 391 U.S. 194, 205, 88 S.Ct. 1477, 1484, 20 L.Ed.2d 522 (1968) (citation omitted).
As we noted in another criminal contempt case, when...
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