Townes v. State, 4079
| Decision Date | 14 November 1972 |
| Docket Number | No. 4079,4079 |
| Citation | 502 P.2d 991 |
| Parties | In the Matter of the Direct Criminal Contempt of Fred Townes. Fred TOWNES a. k. a. Freddie Steven Townes, Appellant, v. STATE of Wyoming, Appellee. |
| Court | Wyoming Supreme Court |
Louis A. Mankus, Cheyenne, for appellant.
Clarence A. Brimmer, Atty. Gen., Richard A. Stacy, Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.
Following a courtroom assault by defendant on his father November 30, 1971 (the judge's version of which is related in the appendix hereto attached), Judge Raper, who had viewed the trouble, directed that defendant be jailed for direct contempt. Six days later after a hearing by that judge, defendant was sentenced to sixty days in the county jail. Defendant has appealed, arguing some ten points, including the court's improper use of both Rule 41(a) and (b), W.R.Cr.P. 1
The November 30 altercation occurred following a hearing in a divorce matter, plaintiff (Fred Townes' mother) having asked for an order adjudging her former husband in contempt for failure to comply with an order concerning support of the parties' children.
The events succeeding the disturbance are of significance. At the oral instance of the court, personnel from the sheriff's office removed the defendant from the courtroom; and he was held in the county jail. On December 3, 1971, counsel for Townes moved that he 'be ordered released from the Laramie Jail where he is being held by the Sheriff of Laramie County, Wyoming, without charge, and he has been so held since Tuesday, 30 November, 1971, and upon information and belief he is being held under the Oral Order of District Judge John F. Raper.' The same day the court ordered 'the foregoing Motion be and is hereby denied, the matter having been set down for hearing by previous Order of this Court, at 2:00 P.M., December 6, 1971.' The order therein referred to, also filed December 3, 1971, entitled 'Citation to Show Cause,' read:
'WHEREAS, on November 30, 1971, at a regular session of the above-entitled Court and in the immediate view and presence of the presiding judge thereof, Freddie Steven Townes, did act in a disorderly, contemptuous and insolent manner and did impair the respect due the Court's authority (sic);
'IT IS HEREBY ORDERED, that Freddie Steven Townes appear before this Court at Cheyenne, Wyoming on December 6, 1971, at 2:00 o'clock P.M., then and there to show cause why he should not be adjudged guilty of, and punished for contempt in the presence of the Court.'
On December 6, the court made a statement at the commencement of the proceeding and at the conclusion of the hearing sentenced the defendant to the county jail for sixty days. On December 10, the court entered a 'Judgment and Sentence' (see appendix).
The 'Judgment and Sentence' was in effect the only attempted compliance with
Rule 41(a) as to a certificate, which rule provides:
At the hearing on December 6, after the judge had made a narrative statement of the happenings, the defense counsel asked for a continuation for the reason that he had had no time to interview witnesses and had talked to the defendant for only a short time. The court denied the motion for continuance, saying, 'Well there is no trial as such in this type of a contempt proceeding where the Court was present and observed all that took place,' indicating that it would, however, hear anything that counsel had in mitigation.
A court's power to punish for contempt is a necessary and integral part of the independence of the judiciary. Nevertheless, where there has been a criminal contempt and the trial court makes a summary disposition under (a) of Rule 41 it 'must be meticulously careful to observe * * * (procedural) safeguards,' Yates v. United States, 9 Cir., 227 F.2d 848, 850; Widger v. United States, 5 Cir., 244 F.2d 103, 107; and if there is a serious question concerning defendant's mental responsibility, a hearing must be held under (b), Panico v. United States, 375 U.S. 29, 30, 84 S.Ct. 19, 11 L.Ed.2d 1; Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269, 276; 3 Wright, Federal Practice and Procedure: Criminal § 707, p. 167 (1969).
The State argues that in holding the December 6 hearing the judge was doing something for the benefit of the defendant, which he was not required to do by the law; that the hearing was for the purpose of allowing defendant to show any circumstances in mitigation which might lead to a less severe penalty than that which would otherwise be imposed; and that it is impossible to see how defendant can fault the court for attempting to be overly fair with him in granting him a hearing to which he was not entitled.
We find such argument unconvincing. Even were we to concur in the propriety of a hearing to determine the severity of punishment, under the circumstances here present the lack of recitation of facts required by Rule 41(a) prior to the hearing would prejudice the defendant in that he could not properly marshal facts to be presented in mitigation. 2 This is not to say that there was need for any immediate filing of a certificate. As said in Hallinan v. United States, 9 Cir., 182 F.2d 880, 887:
'* * * the word 'summarily' does not require hasty determination and * * * the night hours spent by the judge in preparing his summation for his contempt order, delivered on the following morning, are not an improper incident to summary action.'
Furthermore, while to this court the temper displayed by the eighteen-year-old defendant toward his father was not such that would have caused serious question as to his sanity, the trial court apparently had doubts in that regard, contacted a psychiatrist, and solicited his opinion; and the hearing held was in the nature of a trial-not in mitigation. These factors together with the ten-day delay in filing even a semblance of a certificate constitutes such a departure from the proceedings authorized under Rule 41(a) that the cause must be reversed and remanded for proceedings under (b) of Rule 41.
Reversed and remanded with instructions.
William B. Townes, Defendant.
In the Matter of the
Direct Criminal Contempt of Fred Townes.
Dec. 10, 1971
JUDGMENT AND SENTENCE
On the 6th day of December, 1971, there came on regularly to be heard the above matter of the direct criminal contempt of Fred Townes.
IT IS HEREBY CRETIFIED that the attached transcript of the Court's narrative of events occurring on the 30th day of November, 1971, is factually true and correct in every respect.
IT IS FURTHER CERTIFIED that the photographs attached hereto with their captions in truth and fact correctly depict, illustrate and describe the physical arrangement of the court-room, hall, chambers entry-way and parties described by the Court in the transcript; that also attached is a certified copy of the report of mental examination of Fred Townes by Dr. Donald Herrold, M.D.
THE COURT FINDS and declares that the testimony of Fred Townes and his mother, Betty Lou Townes at the hearing on the 6th day of December, 1971, is either a wilful fabrication for the purpose of discrediting the Court or a gross failure of recollection and inaccuracy and that the testimony of David Smith is grossly inaccurate for the most part, not a correct statement of facts or relates to some later occurrence in the court-room after Fred Townes was forcibly removed; that Betty Lou Townes was not in the court-room struck by William Townes prior to Fred Townes jumping upon and beating his father and was not the provocation therefor.
THE COURT FURTHER FINDS Fred Townes guilty of a direct criminal contempt in the presence of the Court on the 30th day of November, 1971, and being fully informed, it is
ORDERED and ADJUDGED that FRED TOWNES be and is hereby sentenced and committed to the Laramie County Jail, Cheyenne, Wyoming for a period of sixty (60) days but that he be credited thereon with time spent in jail from the 30th day of November to the date of this Judgment and Sentence.
Dated this 10th day of December, 1971.
WILLIAM B. TOWNES, Defendant.
Before: The Honorable JOHN F. RAPER, Presiding Judge.
Appearances:
Mr. John F. Lynch, Kline, Tilker & Lynch, Attorneys at Law, American Natl. Bank Bldg., Cheyenne, Wyo.
Attorney for William B. Townes.
Mr. Louis Mankus, Attorney at Law, Bell Bldg., Cheyenne, Wyoming.
Attorney for Freddie Townes (Defendant in Contempt Proceedings).
BE IT REMEMBERED that on this 6th day of December, 1971, at Courtroom B, City and County Bldg., Cheyenne, Laramie County, Wyoming, before the Honorable John F. Raper, Presiding Judge, the matter of Contempt Proceedings against Freddie Townes came on for hearing, whereupon the following proceedings were had, to-wit:
THE COURT: This is a proceeding in contempt and filed in the case of Betty Lou Townes vs. William B. Townes in Docket Number 62-462, and it is here only because that is the case in which the occasion arose.
Will you step forward, Mr. Townes?
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