241 Conn. 569 | Conn. | 1997
Lead Opinion
Opinion
This case is before us on a writ of error brought by the plaintiff in error, Duane Banks (plaintiff), who seeks reversal of the judgment of the trial court summarily finding him in criminal contempt of court on three separate occasions during a hearing on his
The relevant facts are not in dispute. On May 2,1995, the plaintiff was charged with robbery in the first degree, conspiracy to commit robbery in the first degree, assault in the first degree, and conspiracy to commit assault in the first degree.
On November 17, 1995, the plaintiff filed a motion for a further bail reduction, which was heard by Judge Espinosa on November 29, 1995.
Immediately after the court had ruled on the plaintiffs motion, the plaintiff requested the opportunity to address the court personally. During the course of the colloquy following the plaintiffs request, the court summarily adjudicated the plaintiff in criminal contempt on three separate occasions and sentenced him to consecutive prison terms of three months on each of the three contempts. Because what occurred during the colloquy between the court and the plaintiff is critical to our resolution of the plaintiffs claims, that colloquy is set forth in this opinion in its entirety.
“The Court: I would recommend that you talk to your lawyer because anything you say can and will be used against you.
“The [Plaintiff]: I’m well aware of that, Your Honor.
“The Court: All right, what would you like to say?
“The [Plaintiff]: I would like to say first of all that the last failure to appear conviction from 1989, I was incarcerated and that had been—
“The Court: But you pled guilty to it anyway?
“The [Plaintiff]: No, that had been clarified so that shouldn’t even be on the record for one. And the last valid failure to appear that I had is over ten years old in which case also I know that’s not an issue here, it’s just that it does exist. However, I am a different person from then, because everybody does change. And as far as a flight risk, that’s nonsense because like my counselor’s already asked and before the court I would be willing to post a bond, I would be on a monitor, there would be a sufficient amount of real estate put up, so—
“The Court: Mr. Banks, if you’re just going to repeat what your lawyer said I heard her—
“The [Plaintiff]: Yeah.
“The Court: I considered her arguments and I denied it.
“The [Plaintiff]: All right, well—
“The Court: So if you have anything new to say I’ll listen but I don’t want—
“The [Plaintiff]: Ah right.
“The [Plaintiff]: Well let me just go here then, isn’t the purpose of bond only to ensure the — that I show up for court?
“The Court: That’s correct.
“The [Plaintiff]: But I’m just a regular individual from the north end, I’m not a professional athlete or anything. Three hundred thousand dollars is ridiculous, you might as well say that don’t give me a bond at all because you know, he knows and everybody else knows that I can’t make a bond like that, therefore—
“The Court: Well, the court—
“The [Plaintiff]: You’re not even giving me the opportunity to post a bond—
“The Court: I’ve heard enough. Do not say one more word. The court has considered all of the circumstances and has ruled.
“The [Plaintiff]: All right and I just would like—
“The Court: That’s all.
“The [Plaintiff]: — it to be on the record that I never—
“The Court: I don’t want to hear anything else.
“The [Plaintiff]: — did confess to any crime.
“The Court: I don’t want to hear anything else.
“The [Plaintiff]: I never confessed to any crime—
“The Court: Be quiet—
“The [Plaintiff]: And I’m not making no changes—
“The Court: — or I’m going to hold you in contempt.
“The [Plaintiff]: — in my statement, either.
“The Court: Come back here.
“The Court: I want you to show cause why you should not be held in contempt for speaking after I told you not to. What’s your explanation?
“The [Plaintiff]: Because I’ve been incarcerated for eight months listening to him—
“The Court: I don’t care.
“The [Plaintiff]: — and other people—
“The Court: I don’t care. That doesn’t give you the right to come in here and—
“The [Plaintiff]: — making—
“The Court: — think that you’re going to take over this courtroom.
“The [Plaintiff]: I’m not trying to take over, but I been quiet so long, I feel like I need to be heard.
“The Court: I want you to be quiet.
“The [Plaintiff]: I need to be heard.
“The Court: I want you to be quiet.
“The [Plaintiff]: I need to be heard. I’m tired of—
“The Court: The court finds that you have violated the court’s order to stop talking when you were ordered to. That you have demonstrated a flagrant disrespect for this court and the court is going to hold you in contempt. You are hereby sentenced to three months. That’s all.
“The [Plaintiff]: The court’s disrespecting me.
“The Court: All right, come back here again. What was that?
“The [Plaintiff]: I said I feel like I been disrespected.
“The [Plaintiff]: Because don’t I have the right to speak?
“The Court: No, not when I tell you not to.
“The [Plaintiff]: I would—
“The Court: Do you want to apologize?
“The [Plaintiff]: Yeah, I’ll apologize.
“The Court: All right—
“The [Plaintiff]: But after that can I still speak? “The Court: No. I’ve heard enough—
“Defense Counsel [Margaret Levy]: Let’s go—
“The Court: That’s it.
“Defense Counsel: (inaudible) okay?
“The [Plaintiff]: Yeah, okay.
“The Court: No, come back here. You’re a wise guy—
“The [Plaintiff]: I was talking to her.
“The Court: You’re disrespectful. Three more months. That’s it.
“The [Plaintiff]: Uh hum, yup.
“The Court: You want more?
“The [Plaintiff]: Do whatever you like.
“The Court: Come back. The court finds that you have been disrespectful again, repeatedly. Three more months. That’s all.
“The [Plaintiff]: This — this ain’t no courtroom.
“The [Plaintiff]: This will be the only conviction you get of me.
“The Court: Do you want to add more time? We can do this all day and you’ll be in jail longer than you will on the other charge. Shall we do it again?
“The [Plaintiff]: Are you comfortable now? You’ve given me about three (inaudible)—
“The Court: How much are we up to now, [Edward Narus, Assistant State’s Attorney]?
“Mr. Narus: Nine months, Your Honor.
“The Court: Nine months? That’s right, because this court will not tolerate disrespect. When I say do not talk you do not talk. Now I gave you the courtesy of talking which I don’t to all defendants and you were disrespectful. You continue to be disrespectful because you do not stop talking as you walk out of the courtroom. You continue to make disrespectful comments to the court. And as long as you continue to do that the court will find you in contempt, do you understand that, sir? Do you understand that? I guess you don’t understand that. So by your silence you’re indicating that you are still being disrespectful because you will not answer the court’s questions. Is that correct?
“The [Plaintiff]: Do you want me to talk or not?
“The Court: I want you to answer my question.
“The [Plaintiff]: Yeah, I understand that.
“The Court: All right. That’s it.” The court then called the next case.
On December 18, 1995, nineteen days after the rendition of the contempt judgment, the plaintiff submitted
I
Before turning to the plaintiffs claims, we first address the state’s contention that the two week limitation period set forth in § 52-273 is mandatory and, consequently, that we lack subject matter jurisdiction to entertain the plaintiffs writ of error because it was not filed within that time period.
“It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases . . . the subject matter jurisdiction of the Appellate Court and of this court is governed by statute.” (Citation omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994). “The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). Thus, we look to whether the legislature intended the time limitation to be jurisdictional.
Although the statutory phraseology is cast in terms generally suggestive of a mandatory construction; see, e.g., Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 279-80, 610 A.2d 584 (1992) (use of negative or prohibitory language supports inference that statutoiy time period is mandatory); § 52-273 contains no language expressly invalidating a writ of error not filed within two weeks from the rendition of the judgment or decree. See Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995) (“[a] reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision”). Moreover, the legislative history of § 52-273 contains no indication that the legislature intended to deprive this court of the authority to entertain an untimely writ of error. Prior to 1935, a writ of error was to be filed within three years from
In contrast, it is clear that the writ of error, like the court’s “inherent . . . power to punish all contempts committed in its presence”; Ullmann v. State, 230 Conn. 698, 705, 647 A.2d 324 (1994); is deeply rooted in our common law. State v. Assuntino, 173 Conn. 104, 109-10, 376 A.2d 1091 (1977); State v. Caplan, 85 Conn. 618, 622, 84 A. 280 (1912); see also C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (Sup. 1996) § 8.1 (b), p. 8-2 (“[t]he writ of error is both a common law writ and a creature of statute”). Thus, the
The harsh result engendered by the state’s approach provides additional support for our conclusion. A writ of error is the sole method of review of a summary criminal contempt proceeding. Id., 703; In re Dodson, 214 Conn. 344, 346, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). If this court were barred from reviewing the merits of the plaintiffs claims because he had failed to comply with the statutory limitation period, the plaintiff would be left without direct appellate recourse to challenge the trial court’s summary criminal contempt finding and its sentence of nine months imprisonment.
In light of these considerations, and “taking into account the established principle that evexy presumption is to be indulged in favor of jurisdiction”; (internal quotation marks omitted) Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 765; we conclude that noncompliance with the two week limitation period of § 52-273 does not deprive this court of subject matter jurisdiction over a writ of error. Moreover, in this case, the state, which has sxiffered no prejudice from the short filing delay, does not object to our review of the
II
The plaintiff first claims that his conduct was not contemptuous as a matter of law. He maintains that in taking the opportunity granted to him by the trial court to address the court personally, his choice of words was neither profane nor provocative, and his conduct was not otherwise intentionally disrespectful or disruptive. We conclude that the record supports the first contempt finding, but not the second and third.
“Since we speak of criminal contempt as conduct against the dignity and authority of the court, it is useful briefly to articulate the concepts of dignity and authority encompassed in this context. The expression ‘dignity of the court’ proclaims a demand, to all dealing with the court, for proper respect and obedience in its function of interpreting, administering and enforcing the law within its authority to do so. See generally Brannon v. State, 202 Miss. 571, 582, 29 So. 2d 916 (1947). ‘Authority’ can be and has been said to mean the ‘[r]ight to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. ... [It is] [o]ften synonymous with power.’ Black’s Law Dictionary (5th Ed. [1979]). In a free society, the courtroom ‘is a forum for the courteous and reasoned pursuit of truth and justice.’ Taylor v. Hayes, 418 U.S. 488, 503, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974). These concepts meaningfully embody that view of dignity and authority that should attend the proper, independent and fair
“It is also useful to note at this point that where summary contempt is involved, the United States Supreme Court has indicated that it is wary of the power and cognizant of its potential for abuse. It, therefore, became established early in American jurisprudence that contempt limits a court in such cases to ‘the least possible power adequate to the end proposed.’ Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L. Ed. 242 (1821), quoted, inter alia, in In re Michael, 326 U.S. 224, 227, 66 S. Ct. 78, 90 L. Ed. 30 (1945); In re Oliver, 333 U.S. 257, 274, 68 S. Ct. 499, 92 L. Ed. 682 (1948); Harris v. United States, 382 U.S. 162, 165, 86 S. Ct. 352, 15 L. Ed. 2d 240 (1965); Shillitani v. United States, 384 U.S. 364, 371, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966). The purposes, nevertheless, of a criminal contempt order are to punish willful disregard of the authority of the court and to deter the occurrence of similar derelictions. United States v. United Mine Workers, 330 U.S. 258, 302-303, 67 S. Ct. 677, 91 L. Ed. 884 (1947); In re Irving, 600 F.2d 1027, 1037 (2d Cir. 1979), cert. denied, 444 U.S. 866, 100 S. Ct. 137, 62 L. Ed. 2d 89 (1979). Only recently, the United States Supreme Court has observed that ‘[t]he underlying concern that gave rise to the contempt power was not, however, merely the disruption of court proceedings. Rather, it was disobedience to the orders of the judiciary, regardless of whether such disobedience interfered with the conduct of trial.’ Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987).” In re Dodson, supra, 214 Conn. 349-51.
Furthermore, “[t]o be held in criminal contempt, a contemnor must have the requisite intent; the conduct must be willful. Matter of Pilsbury, [866 F.2d 22, 27 (2d Cir. 1989)]; United States v. Thoreen, 653 F.2d 1332, 1342 (9th Cir. 1981); Sykes v. United States, 444 F.2d
Guided by these principles, we review the record to determine whether it supports the court’s summary contempt findings. We do so mindful of the fact that our review is not plenary. “[A] court exercises considerable discretion in dealing with contemptuous conduct occurring in its presence, and its summary adjudication is accorded a presumption of finality. . . . From necessity the court must be its own judge of contempts committed within its presence. ...” (Citations omitted; internal quotation marks omitted.) Jackson v. Bailey, 221 Conn. 498, 504, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992); McClain v. Robinson, 189 Conn. 663, 669, 457 A.2d 1072 (1983). Thus, “ ‘[i]n a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hamersley, 44 Conn. 393, 413 (1877). Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt; Good-hurt v. State, [84 Conn. 60, 63, 78 A. 853 (1911)]; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. Mayberry v. Pennsyl
Accordingly, in reviewing the plaintiffs claim that the judgment of summary contempt should be reversed on the ground that it is not supportable as a matter of law, it is not our function either to second guess the considered judgment of the trial court or to ignore the record before us. Rather, we will sustain the court’s contempt finding if, upon a careful review of the record, we conclude that the trial court reasonably could have found that the plaintiffs conduct was wilfully contumacious beyond a reasonable doubt.
First Contempt Finding
We now turn to the plaintiffs claim that the record does not support the trial court’s first contempt finding. Upon a close examination of the initial colloquy between the court and the plaintiff, which we summarize in the following paragraph, we reject the plaintiffs contention regarding the first contempt finding.
The trial court, after informing the plaintiff that it did not want to hear a repetition of the arguments already made by his attorney, allowed the plaintiff to continue to address the court. When the plaintiff per
The trial court ordered the plaintiff to “[c]ome back here,” stating, “I want you to show cause why you should not be held in contempt for speaking after I told you not to.” The plaintiff stated that he, “need[ed] to be heard” because he had been “quiet [for] so long.” The court then told the plaintiff, “I want you to be quiet.” The plaintiff, however, replied, “I need to be heard.” After the trial court again admonished the plaintiff to “be quiet,” the plaintiff, continued defying the court’s admonition and repeated that he had a “need to be heard.” The trial court then found the plaintiff in contempt of court, concluding that the plaintiff had “violated the court’s order to stop talking when you were ordered to [do so]” and, consequently, “That you have demonstrated a flagrant disrespect for this court . . . .”
We conclude that “[t]his conduct was a criminal contempt, directed as it was against the dignity and authority of the court.” In re Dodson, supra, 214 Conn. 357. The
Moreover, the plaintiff, when afforded the opportunity to explain his failure to obey the court’s orders, did not indicate either that he had misunderstood the court’s directives or that he had not intended to disobey them; rather, he repeatedly insisted that he needed to be heard. Indeed, the plaintiff, in asserting his need to be heard, was unapologetic and, in fact, continued to flout the court’s express directives to stop speaking, thereby exacerbating the situation. Under the circumstances, therefore, the trial court reasonably concluded that the plaintiffs conduct constituted a wilful violation under Practice Book § 986 (4) of the prohibition against disobeying a judicial authority during a criminal pro
B
Second Contempt Finding
We do not believe, however, that the record supports the trial court’s subsequent contempt findings. With respect to the second finding, the plaintiff, immediately after the court had sentenced him to three months imprisonment for the first contempt and as he was walking away, stated, “The court’s disrespecting me.” The court instructed the plaintiff to return to the bench and asked him what he had said, to which he responded, “I said I feel like I been disrespected.” The court replied that the plaintiff had “disrespected the court again,” and gave him the opportunity to explain why he should not be held in contempt a second time. After a very brief colloquy between the court and the plaintiff, the
Because the plaintiff had been warned repeatedly to refrain from making any further comments, we have little doubt that, if the trial court had not asked for and accepted the plaintiffs apology, it would have been warranted in finding the plaintiff in contempt a second time for stating, “The court’s disrespecting me.” It is clear' from the record, however, that the court had decided not to hold the plaintiff in contempt for that comment, instead eliciting the plaintiffs apology for the statement. Only after the court had concluded the hearing and the plaintiff had responded affirmatively to his attorney’s entreaty that they both leave the courtroom did the court call him back and, without further inquiry, sentence him to an additional prison term of three months. Thus, it is apparent from the record that: (1) the court reversed its decision not to hold the plaintiff in contempt a second time because the court had concluded that the comment, “Yeah, okay,” constituted an expression of the plaintiffs continued lack of respect for the court’s instructions to refrain from speaking; and (2) the court’s reason for reversing itself was predicated
C
Third Contempt Finding
We reach the same conclusion with respect to the third and last contempt finding. After the court had found the plaintiff in contempt a second time and had sentenced him to three more months imprisonment, the plaintiff stated, “Uh hum, yup.” The court then asked the plaintiff if he wanted more time, to which the plaintiff responded, “Do whatever you like.” The court proceeded to hold the plaintiff in contempt a third time and sentenced him to three additional months in prison.
The plaintiffs claim that this conduct is insufficient to support the trial court’s contempt finding must be viewed in light of what immediately had preceded it: the trial court had just held the plaintiff in contempt for a second time based on its misperception that the
It was at this point that the plaintiff muttered, “Uh hum, yup,” prompting the court to call him back and ask, “[Do] [y]ou want more?” When the plaintiff replied, “Do whatever you like,” the court again found the plaintiff in contempt. We need not decide whether, under other circumstances, the plaintiffs utterance might have provided the basis for a summary criminal contempt finding. For the following reasons, we conclude that the plaintiffs remark cannot support such a finding in this case. First, the plaintiff had just been held in summary contempt for a second time and sentenced to three months imprisonment based upon the trial court’s mistake of fact. Second, the court previously had failed to afford the plaintiff a meaningful opportunity to correct the court’s misunderstanding as to his conduct. Third, it is apparent that the court was angry with the plaintiff for what the court believed was his wilful disobedience to the court’s order to refrain from speaking after the court had accepted the plaintiffs apology and attempted to conclude the proceedings.
We further conclude that the plaintiffs statement, “Do whatever you like,” in response to the court’s question, “[Do] [y]ou want more [time]?,” provides no independent or additional support for the court’s final contempt finding. Although the plaintiffs answer could have been more diplomatic, his response cannot be characterized as either inflammatory or unresponsive. As such, it simply was not so offensive to the dignity or the authority of the court as to be contemptuous. See In re Little, 404 U.S. 553, 555, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972) (“[t]rial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice”). This conclusion is further buttressed by the fact that the plaintiffs effort to explain why he should not be held in contempt a second time went unheeded by the trial court. We note, finally, that the plaintiffs tone of voice fairly may be described as resigned rather than caustic or sarcastic. For these reasons, we conclude that the third contempt finding cannot stand.
Ill
The plaintiff next claims that the trial court should have disqualified itself and referred the matter to another judge. Specifically, the plaintiff contends that the court became so personally involved in the controversy that fundamental fairness required the court to recuse itself so that another judge could determine whether the plaintiffs conduct was contemptuous. We disagree.
“[In] Mayberry v. Pennsylvania, [400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)], [the United States Supreme Court] held . . . that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he has become so personally embroiled with a contemnor that it is unlikely for him ‘to maintain that calm detachment necessary for fair adjudication.’ ” Naunchek v. Naunchek, supra, 191 Conn. 116-17. In general, in order to determine whether a judge was required to recuse him or herself due to personal embroilment, “we must appraise both the conduct of the contemnor and the reaction of
Our review of the record regarding the first contempt finding persuades us that the trial court was not so personally embroiled in a running controversy with the plaintiff that disqualification was required.
IV
The plaintiff also claims that the trial court lacked justification for exercising its summary contempt authority and, therefore, that he was entitled to a non-summary proceeding pursuant to Practice Book § 989.
Practice Book § 988 expressly provides that a criminal contempt committed in the presence of the court may be punished summarily if “such punishment is necessary to maintain order in the courtroom . . . .” Because § 988 applies to conduct that actually occurs in the court’s presence during an official court proceeding,
We are satisfied that, when it opted to exercise its summary contempt power under § 988 in the present case, the trial court did not abuse its discretion. The court reasonably concluded that the plaintiffs wilful disobedience of its orders posed an imminent threat to the dignity of the court and to the orderly administration of justice. See Naunchek v. Naunchek, supra, 191 Conn. 114 (contemnor’s disregard of court’s repeated instructions regarding limits of permissible examination warranted summary contempt finding). Moreover, we agree with the state that in acting summarily, the trial court demonstrated that it was fully prepared to enforce its orders decisively and deter future “occurrence [s] of similar derelictions” by the plaintiff and others. In re Dodson, supra, 214 Conn. 351. Although “[w]e are mindful of the oft-quoted statement of Justice Robert Jackson in Sacher v. United States, 343 U.S. 1, 8, 72 S. Ct. 451, 96 L. Ed. 717, reh. denied, 343 U.S. 931, 72 S. Ct. 746, 96 L. Ed. 1341 (1952), that ‘[s]ummary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes’ ”; Naunchek v. Naunchek, supra, 117; it is equally true that “[a] trial court must have latitude in the preservation of courtroom control.” Id. Consequently, as long as the
The judgment is affirmed with respect to the first contempt finding. The judgment is reversed with respect to the second and third contempt findings, and the case is remanded to the trial court with direction to vacate the second and third contempt findings.
In this opinion BORDEN, J., concurred, BERDON, J., concurred as to parts I and II C and concurred in the result as to part II B, and DUPONT, J., with whom MCDONALD, J., joined, concurred as to parts I, II A, III and IV.
General Statutes §§ 51-33 and 51-33a and Practice Book §§ 985, 986 and 988 set forth the procedures applicable to criminal contempt proceedings.
General Statutes § 51-33 provides: “Punishment for contempt of court. Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”
General Statutes § 51-33a provides: “Criminal contempt, (a) Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
“(b) No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated.”
Practice Book § 985 provides: “[Criminal Contempt] — In General
“A criminal contempt is conduct that is directed against the dignity and authority of the court. The sanction for a criminal contempt is punitive in order to vindicate the authority of the court.”
Practice Book § 986 provides: “[Criminal Contempt] — Who May Be Punished
“The judicial authority may punish by fine or imprisonment or both:
“(1) Any person who in the court’s presence behaves in a contemptuous or disorderly manner;
“(2) Any person who violates the dignity and authority of any court, or any judicial authority, in its presence or so near thereto as to obstruct the administration of justice;
“(3) Any officer of the court who misbehaves in the conduct of his official court duties; or
“(4) Any person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.”
Practice Book § 988 provides: “[Criminal Contempt — Summary Contempt]--Nature of Proceedings
“A criminal contempt may be punished summarily if the conduct constituting the contempt was committed in the actual presence of the court or of the judicial authority and such punishment is necessary to maintain order in the courtroom. A judgment of guilty of contempt shall include a recital of those facts on which the adjudication of guilty is based. Prior to the adjudication of guilt the judicial authority shall inform the defendant of the accusation against him or her and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by presenting evidence of excusing or mitigating circumstances.”
Thomas is the state’s attorney for the judicial district of Hartford-New Britain at Hartford. The defendant in error is hereinafter referred to as the state.
General Statutes § 52-273 provides: “Writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”
At all times relevant to this appeal, Practice Book § 4144 provided in pertinent part: “The procedure for filing, prosecuting and defending a writ of error shall be in accordance with the rules for appeals except that:
“(a) Upon payment in the trial court of the necessary fees and filing of the necessary security for costs, the writ, if in proper form, must be allowed and signed by a judge or clerk of the court in which the judgment or decree was rendered, within two weeks after the rendition of the judgment or decree . . . .” Section 4144 was amended effective September 3, 1996, which was subsequent to the trial court’s signing of the writ of error in this case.
State v. Banks, Superior Court, judicial district of Hartford-New Britain at Hartford, geographical area number fourteen, Docket No. CR95-0471451S (November 15,1996). At oral argument, we were informed by the plaintiffs
Previously, on July 26, 1995, the trial court, Miaño, J., had denied a second bail reduction application by the plaintiff.
The bail hearing was audiotaped by an official court monitor, who thereafter prepared a transcript of the proceeding from that audiotape. On October 9, 1996, the plaintiff filed a motion requesting permission to supplement the record on appeal with a verified copy of the actual audiotape of the proceedings. We granted the plaintiffs motion on October 29, 1996.
We have carefully reviewed the audiotape of the proceedings; see footnote 6 of this opinion; as well as the transcript of those proceedings prepared
At all times relevant to this appeal, Practice Book §4018 provided: “[Waiver of Fees, Costs and Security] — Criminal Cases
“Any defendant in a criminal case who is indigent and desires to appeal, and has not previously been determined to be indigent, may, within the time provided by the rules for taking an appeal, make written application to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses. The application must be under oath and recite, or it must be accompanied by an affidavit reciting, the grounds upon which the applicant proposes to appeal and the facts concerning the applicant’s financial status.
“The application must be sent to the public defender’s office for investigation. The judicial authority shall assign the request for waiver of fees, costs and expenses for hearing within twenty days after filing, and the trial counsel, the trial public defender’s office to which the application had been sent for investigation and the chief of legal services of the public defender’s office shall be notified in writing by the clerk’s office of the date of such hearing.
“The judicial authority shall act promptly on the application following the hearing. Upon determination by the judicial authority that a defendant in a criminal case is indigent, the court to which the fees required by statute or rule are to be paid may (1) waive payment by the defendant of fees specified by statute and of taxable costs, and waive the requirement of Sec. 4015 concerning the furnishing of security for costs upon appeal, (2) order that the necessary expenses of prosecuting the appeal be paid by the state, and (3) appoint appellate counsel and permit the withdrawal of the trial attorney’s appearance provided the judicial authority is satisfied that that attorney has cooperated fully with appellate counsel in the preparation of defendant’s appeal.
“When the judicial authority has appointed an attorney in private practice to represent the defendant upon appeal, the attorney shall obtain the approval of the judicial authority who presided at the trial before incurring any expense in excess of $100, including the expense of obtaining a transcript of the necessary proceedings ortestimony. The judicial authority shall authorize a transcript at state expense only of the portions of proceedings or testimony which may be pertinent to the issues on appeal.” On September 3,1996, after the plaintiff had applied for a waiver of fees, costs and expenses, certain minor technical changes to this Practice Book provision became effective. See also footnote 3 of this opinion.
On January 17, 1996, the trial court, Schimelman, J., granted the plaintiffs motion for a stay of execution of the nine month sentence imposed on him by Judge Espinosa pending resolution of the plaintiffs appeal.
The plaintiff also claims that the trial court improperly failed: (1) to provide him with notice and an opportunity to be heard with respect to 1he second and third contempt findings as guaranteed under the due process clause of the federal constitution and as required by Practice Book § 988; see footnote 1 of this opinion; and (2) to afford him a jury trial in light of the fact that his total sentence exceeded six months in prison. We do not consider the plaintiffs due process claim because we conclude that the trial court’s judgment as to the second and third contempt findings must be reversed on other grounds. We also do not reach the plaintiffs jury trial claim because, due to our reversal of the second and third contempt findings, the plaintiff will be required to serve a sentence of less than six months imprisonment. In addition, we note that although the plaintiff challenges the validity of the contempt finding, he does not otherwise contest the length of the three month prison term imposed by the court.
Although the trial court did not specify the statutory or Practice Book provisions upon which it had based its contempt findings, the judgment file, signed by an assistant clerk of the court, indicates a violation of General Statutes § 51-33. It is apparent, however, that the trial court also relied upon Practice Book § 986 (4); see footnote 1 of this opinion; which provides an independent basis for a contempt finding that is predicated upon conduct constituting disobedience to an order of the court rendered in the course of a civil or criminal proceeding. See State v. Murray, 225 Conn. 355, 623 A.2d 60, cert. denied, 510 U.S. 821, 114 S. Ct. 78, 126 L. Ed. 2d 46 (1903).
On February 5, 1996, the state filed a motion to dismiss the writ of error, claiming that the plaintiffs failure to file the writ within two weeks of the summary contempt judgment deprived this court of subject matter
At the time the plaintiff filed his writ of error, § 4144 provided that “[t]he procedure for filing, prosecuting and defending a writ of error shall be in accordance with the rules for appeals except” as otherwise mandated. Because § 4144 contained no provision regarding applications for the waiver of fees, costs and expenses, such applications were governed by § 4018, which stated at all times relevant to this appeal that “[a]ny defendant in a criminal case who is indigent and desires to appeal, and [who] has not previously been determined to be indigent, may, within the time provided by the rules for taking an appeal, make written application to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses. . . .” See footnote 8 of this opinion. Thus, the plaintiff was responsible for filing his application for waiver of fees, costs and expenses within the two week limitation period of § 4144 in order to toll the running of that time period. In this case, the plaintiffs § 4018 application, filed nineteen days after the rendition of the judgment, failed to satisfy the provisions of § 52-273 and § 4144.
The plaintiff asserts that his failure to file the application for waiver of costs, fees and expenses in a timely manner was due to his counsel’s good faith, but mistaken, belief that the limitation period applicable to a criminal appeal, namely, twenty days, is also applicable to a writ of error. The state does not dispute this claim. Furthermore, the state, at oral argument, indicated that it had no objection to our consideration of the merits of the plaintiffs claims in the event that we conclude that failure to comply with the limitation period set forth in § 52-273 does not implicate the court’s subject matter jurisdiction.
Although the amendment, as originally proposed, was entitled “An Act concerning Restricting of the Use of the Writ of Error,” the version of the amendment that was enacted was entitled “An Act Concerning the Use of the Writ of Error.” Compare H.R. 812, Jan. Sess. (1935) with Public Acts 1935, c. 111, § 1, p. 265.
Prior to 1982, § 52-273 provided: “No writ of error shall be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of, nor for the correction of any error which might have been reviewed by process of appeal.” (Emphasis added.) In 1982, the legislature amended § 52-273; see Public Acts 1982, No. 82-160, § 143 (P.A. 82-160); by dividing it into two sentences and substituting the word “may” for the word “shall.” Public Act 82-160 cannot be viewed as having made any substantive changes in § 52-273 because P.A. 82-160 was clearly technical in nature. See generally 25 S. Proc., Pt. 3, 1982 Sess., pp. 686-89; 25 H.R. Proc., Pt. 9, 1982 Sess., pp. 2752-57; 25 H.R. Proc., Pt. 10, 1982 Sess., pp. 3282-91; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1982 Sess., pp. 347-48, remarks of David Biklen.
In light of our conclusion that the two week limitation period of § 52-273 does not bar consideration of the plaintiff s claims, we need not determine whether such a bar would be a constitutionally impermissible encroachment upon this court’s authority to entertain a writ of error. Cf. State v. Assuntino, supra, 173 Conn. 110; see also C. Tait & E. Prescott, supra, § 2.8 (d), pp. 2-7 through 2-9.
Of course, a contemnor whose counsel negligently has failed to file a writ of error in a timely manner could seek habeas corpus relief on the ground of ineffective assistance of appellate counsel. Cf. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) (due process considerations prohibit state from extinguishing first criminal appeal as of right due to ineffective assistance of appellate counsel). A contemnor’s ability to file a habeas petition, however, does not fully alleviate the harshness of the result that the state’s suggested statutory construction would produce.
Consequently, we have recognized that “ ‘[w]here an appeal properly lies, but there has been a failure to follow the requirements of the statutes or rules, the appeal is ordinarily not void, but voidable; the defect may be waived by a failure to take advantage of it; and unless attacked by motion the court will proceed to determine the appeal. The [Connecticut] [S]upreme [C]ourt has said broadly that defects in the method of taking an appeal do not go to the jurisdiction of the court, and has added [that to] “hold otherwise would be to exalt technicalities above substance.” Examples of defects of this land are . . . [t]he failure to take an appeal or file a writ of eiror within the proper time ....’” (Emphasis added.) LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969), quoting W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 275, p. 352.
As previously indicated, we possess the authority to determine whether the provisions of our Practice Book are directory or mandatory. See Teguis v. Reber, supra, 235 Conn. 472-73; Kelley v. Bonney, supra, 221 Conn. 558-59 and n.4. For the policy reasons discussed previously, we conclude that the two week limitation period set forth in § 4144, like that contained in § 52-273, is directory.
Contrary to Justice Berdon’s assertion in Ms concurrmg and dissentmg opirnon, neither our previous decisions, nor any other state or federal precedent, support Ms conclusion that “we must determine, as a matter of law, whether we, as judges of an appellate tribunal, find the [plaintiffs] conduct to be contemptuous.” Indeed, in reviewing summary contempt findings, we long have applied the far more limited standard enunciated previously; see, e.g., Goodhart v. State, supra, 84 Conn. 63-64 (summary contempt finding will be reversed oMy if contemnor’s conduct legally could not have constituted contempt); Welch v. Barber, 52 Conn. 147, 156 (1884) (same); and we recently
Similarly, the United States Supreme Court cases cited by Justice Berdon do not support his conclusion that that court’s “decisions clearly point in the direction of de novo review . . . .” This federal precedent, like the state decisions discussed previously, instead supports the principle that a court’s summary contempt finding will be sustained on appeal unless the reviewing court determines, as a matter of law, that the court imposing the contempt could not reasonably have concluded that the conduct constituted a contempt. See, e.g., Holt v. Virginia, 381 U.S. 131, 136, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965) (“[i]t is not charged that [the contemnors] here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties”); see also Eaton v. Tulsa, 415 U.S. 697, 698, 94 S. Ct. 1228, 39 L. Ed. 2d 693 (1974) (same); In re Little, 404 U.S. 553, 555, 92 S. Ct. 659, 30 L. Ed. 2d 708 (1972) (same). Consequently, Justice Berdon’s assertion that our scope of review is plenary is simply unfounded. Accordingly, in the absence of a compelling reason to do so, we decline to deviate from our long-standing precedent regarding the scope of appellate review of summary contempt findings.
The plaintiffs claim to the contrary notwithstanding, a contemnor “need not be accorded one contemptuous remark before a judge may consider a summary contempt adjudication.” In re Dodson, supra, 214 Conn. 359.
The audiotape reflects the fact that the trial court called the next case immediately upon the conclusion of the hearing on the plaintiffs motion for a bail reduction.
In addition, it is apparent from the audiotape of the proceeding that there were other people in the courtroom during the bail hearing. The court, however, did not indicate how many people were in the courtroom at the time and, consequently, it is not possible for us to determine the extent to which the court may have believed that prompt action was necessary to convey to others present that a similar affront to the court’s authority and dignity would not be tolerated. Cf. Jackson v. Bailey, supra, 221 Conn. 502 n.3 (trial court’s articulation of reasons for summarily holding contemnor in contempt included finding that forty to fifty spectators were present in courtroom at time of contemptuous conduct).
In his concurring and dissenting opinion, Justice Berdon suggests that even if a person repeatedly and deliberately disobeys a court’s direct order that he or she stop speaking, that person’s disobedience cannot provide the basis for a summary contempt finding. We simply disagree with this unsupported and, in our view, unsupportable proposition. See Practice Book § 986 (“[t]he judicial authority may punish by fine or imprisonment or both ... (4) [a]ny person disobeying in the course of a civil or criminal proceeding any order of a judicial authority” [emphasis added]), and § 988 (“[a] criminal contempt may be punished summarily if the conduct constituting the contempt was committed in the actual presence of the court or of the judicial authority and such punishment is necessary to maintain order in the courtroom”).
The state acknowledges the fact that the plaintiff was referring to his attorney.
We emphasize that, in the event that a court’s contempt finding is based in whole or in part on such inappropriate body language or on any other conduct not clearly apparent from the record, it is incumbent upon the court to make an express finding on the record detailing such conduct. See Practice Book § 988 (“[a] judgment of guilty of contempt shall include a recital of those facts on which the adjudication of guilty is based”).
It is clear from the court’s tone of voice that the court was angry with the plaintiff.
Although a further colloquy between the court and the plaintiff ensued, that colloquy did not result in a finding of contempt.
The state maintains that we should not review this claim because it was not raised in the trial court. We previously have decided to reach the merits of such a claim even though it was not raised below. Jackson v. Bailey, supra, 221 Conn. 515; In re Dodson, supra, 214 Conn. 368. In light of the summary nature of the proceedings and the adequacy of the record for purposes of review, we also decide to reach the merits of the plaintiffs claim in this case.
In light of our conclusion that the judgment must be reversed with respect to the second and third findings of contempt; see part II of this
Practice Book § 989 provides in relevant part: “[Criminal Contempt — Summary Contempt]---Deferral of Proceedings
“Where the interests of orderly courtroom procedure and substantial justice so dictate, or where the conduct constituting the contempt is in the nature of a personal attack against the judicial authority, the judicial authority should defer institution of contempt proceedings until after the trial is completed . . . .”
It also bears noting that counsel for the plaintiff, who was present during the entire hearing on the plaintiffs application for a reduction of bail, could have requested that the court proceed in a nonsummary manner or that the court otherwise reconsider the punishment imposed on the plaintiff.
Concurrence in Part
concurring in part and dissenting in part. This case involves issues which go to the perception of justice and the doing of justice in our courts, namely, the jurisdiction of a trial judge summarily to hold and punish a person for contempt of court. In other words, this case concerns the power of a trial judge summarily to punish for contempt when the victim of the alleged contemptuous conduct is the court “represented” by the trial judge, and that same trial judge serves the function of prosecutor, jury and sentencer. It is an awesome power to be invoked only when absolutely necessary for the administration of justice. Indeed, when the trial court exercises its powers of summary criminal contempt, several constitutional guarantees at the core of our democracy are compromised.
I recognize that “[t]he power of [both summary and nonsummary] contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.” (Internal quotation marks omitted.) Mayberry v. Pennsylvania, 400 U.S. 455, 464, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971).
The crime of summary contempt must not be confused with that of nonsummary contempt. Although both are criminal proceedings, the distinction is of vital importance because conduct that may be the subject of a nonsummary contempt proceeding may not give rise to a summary contempt proceeding. We tolerate the compromise of a contemnor’s constitutional rights in a summary contempt proceeding in order to allow trial courts to control the courtroom in furtherance of the administration of justice. Nonsummary contempt,
I disagree with part IIA of Justice Palmer’s opinion, which holds that the record supports the trial judge’s first finding of contempt against Duane Banks, the plaintiff in error (plaintiff). I agree with the result reached in part II B and C of Justice Palmer’s opinion with respect to reversing the second and third findings of contempt,
I
I begin my analysis with the standard of review for summary criminal contempt. In making that determination, summary contempt cannot be equated with the ordinary criminal prosecution based on a crime committed away from the courtroom, which is prosecuted by the state before a neutral and detached judge. Rather,
Relying on Jackson v. Bailey, 221 Conn. 498, 504, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992), and McClain v. Robinson, 189 Conn. 663, 669, 457 A.2d 1072 (1983), Justice Palmer’s opinion rejects de novo review of the question of whether the conduct in this case constitutes the type of contemptuous behavior that can be the subject matter of a summary contempt proceeding. Rather, Justice Palmer concludes that our standard of review is that if “upon a careful review of the record, we conclude that the trial court reasonably could have found that the plaintiffs conduct was wilfully contumacious beyond a reasonable doubt,” then its finding that the conduct constitutes contempt must stand. In other words, the trial court must be upheld with respect to whether the conduct constitutes contempt in a summary proceeding if we conclude beyond a reasonable doubt that the trial court reasonably could have found that the conduct was contemptuous. I am not quite certain what this standard of review means.
Justice Palmer’s reliance on Jackson and McClain for his deference review is misplaced. Jackson referred to the “ ‘considerable discretion in dealing with contemptuous conduct’ ” and not with the determination of whether the speech constituted contempt. Jackson v. Bailey, supra, 221 Conn. 504. Likewise, in McClain, the court made reference to the same discretion. McClain v. Robinson, supra, 189 Conn. 669. In other words, in neither Jackson nor McClain did this court ever defer to the trial judge’s determination of whether the conduct reached the level of contemptuous behavior.
In Jackson v. Bailey, supra, 221 Conn. 500, however, this court indicated that when a contemnor seeks appellate review the inquiry is grounded in three considerations,
Because summary contempt implicates a contemnor’s due process rights, federal constitutional law becomes very relevant. In my view, United States Supreme Court decisions clearly point in the direction of de novo review to determine whether the conduct in question, as a matter of law, can constitute contempt. See, e.g., Codispoti v. Pennsylvania, 418 U.S. 506, 517, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974) (“[s]ummary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review” [emphasis added]), citing Sacher v. United States, 343 U.S. 1, 9, 72 S. Ct. 451, 96 L. Ed. 717 (1952). “When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.” (Internal quotation marks omitted.) Codispoti v. Pennsylvania, supra, 517 n.6. In my opinion, the case of In re Little, supra, 404 U.S. 553, makes it clear that on appeal there must be a de novo review of the conduct to determine whether it constituted contempt. In that case, the defendant, while he was representing himself, made comments in his closing argument that the trial judge was biased, had prejudged the case, and that he, the defendant, was a political prisoner. Id., 554. The trial
In Eaton v. Tulsa, 415 U.S. 697, 698, 94 S. Ct. 1228, 39 L. Ed. 2d 693 (1974), the Supreme Court overturned a state criminal contempt conviction and held, as a matter of law, that the “single isolated usage of street vernacular, not directed at the judge or any officer of the court, cannot constitutionally support the conviction of criminal contempt.” The expletive of “chicken shit” was made by the alleged contemnor while he was testifying in response to a question on cross-examination and it was “a characterization of the person whom [the contemnor] believed assaulted him.” Id., 700 (Powell, J., concurring). The Supreme Court, exercising what amounted to de novo review, reversed the conviction and indicated that in order for the conduct to support a contempt conviction it must “constitute an imminent, not merely a likely, threat to the administration of justice.” Id., 698.
As the Supreme Court noted in Harris v. United States, 382 U.S. 162, 164, 86 S. Ct. 352, 15 L. Ed. 2d 240 (1965), summary criminal contempt adjudication is “reserved for exceptional circumstances . . . such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. . . . We reach that conclusion in light of the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Indeed, in Harris, in the context of a witness refusing
I also believe a de novo review is required for two other reasons. First, the nature of summary contempt requires this searching review. Because we compromise due process and other constitutional protections by allowing this summary criminal proceeding to be utilized, and so much power is invested in the trial judge, our review of whether the facts of the case constitute contemptuous behavior requires the more exacting de novo review. “[T]he absence of procedural safeguards at the adjudicatory phase makes appellate review the most important safeguard against abuses of the summary contempt power.” R. Kuhns, “The Summary Contempt Power: A Critique and a New Perspective,” 88 Yale L.J. 39, 119 (1978).
Second, de novo review is required, as the plaintiff argues, in order to produce “a unitary measure from which the judges will then be able to know where to draw the lines [with respect to] contemptuous behavior or conduct.” This “[independent review is . . . necessary if appellate courts are to maintain control of, and to clarify the legal principles” involved in contempt cases. Cf. Ornelas v. United States, U.S. , 116 S. Ct. 1657, 1662-63, 134 L. Ed. 2d 911 (1996) (holding that “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de
In summary contempt, no procedural safeguards are present because of the nature of the proceeding, and that should beckon us to make a searching inquiiy upon reviewing the findings of contempt. Because a trial judge has wide discretion to invoke his or her summary contempt power under Connecticut law, instead of choosing nonsummary adjudication that affords the contemnor the same procedural safeguards as in any other criminal case, this court’s review of the contempt findings must have more bite than a deferential standard of review.
II
Nevertheless, under any standard of review — abuse of discretion, de novo, or something in between — the
A brief summary of the facts is necessary to put the plaintiffs appeal in the context of the situation that occurred at the trial court. On May 2, 1995, the plaintiff was charged with several robbery and assault related charges. Because he could not post bail that was set at $500,000, he was incarcerated pending his trial. On June 7,1995, the trial court reduced his bail to $300,000, but the plaintiff was also unable to satisfy the reduced bail. Judge Espinosa presided over this motion and she is the trial judge embroiled in the present controversy before this court. Subsequently, the plaintiff filed another motion for bail reduction, which was denied on July 26, 1995 by a different trial judge.
On November 17, 1995, the plaintiff filed another motion for bail reduction, which was heard by Judge Espinosa. The plaintiffs attorney argued in support of the bail reduction motion, claiming that, inter alia, the plaintiff had been incarcerated for approximately seven months, that his family could post a $35,000 bond, that he was able to return to the residence where he had been living with his girlfriend, and that he would wear an electronic monitor. The state opposed the motion and represented to the judge that the plaintiff had a
In an attempt to explain the inaccuracy in the state’s records with respect to a prior conviction for failure to appear, and to explain that he had not confessed to the crimes with which he was presently charged, the following colloquy between the trial judge and the plaintiff preceded the first finding of contempt:
“The [Plaintiff]: I don’t get a chance to speak?
“The Court: I would recommend that you talk to your lawyer because anything you say can and will be used against you.
“The [Plaintiff]: I’m well aware of that, Your Honor.
“The Court: All right, what would you like to say?
“The [Plaintiff]: I would like to say first of all that the last failure to appear conviction from 1989, I was incarcerated and that had been—
“The Court: But you pled guilty to it anyway?
“The [Plaintiff]: No, that had been clarified so that shouldn’t even be on the record for one. And the last valid failure to appear that I had is over ten years old in which case also I know that’s not an issue here, it’s just that it does exist. However, I am a different person
“The Court: Mr. Banks, if you’re just going to repeat what your lawyer said I heard her—
“The [Plaintiff]: Yeah.
“The Court: I considered her arguments and I denied it.
“The [Plaintiff]: All right, well—
“The Court: So if you have anything new to say I’ll listen but I don’t want—
“The [Plaintiff]: All right.
“The Court: — to hear her arguments rehashed.
“The [Plaintiff]: Well let me just go here then, isn’t the purpose of bond only to ensure the — that I show up for court?
“The Court: That’s correct.
“The [Plaintiff]: But I’m just a regular individual from the north end, I’m not a professional athlete or anything. Three hundred thousand dollars is ridiculous, you might as well say that don’t give me a bond at all because you know, he knows and everybody else knows that I can’t make a bond like that, therefore—
“The Court: Well, the court—
“The [Plaintiff]: You’re not even giving me the opportunity to post a bond—
“The Court: I’ve heard enough. Do not say one more word. The court has considered all of the circumstances and has ruled.
“The Court: That’s all.
“The [Plaintiff]: — it to be on the record that I never—
“The Court: I don’t want to hear anything else.
“The [Plaintiff]: — did confess to any crime.
“The Court: I don’t want to hear anything else.
“The [Plaintiff]: I never confessed to any crime—
“The Court: Be quiet—
“The [Plaintiff]: And I’m not making no changes—
“The Court: — or I’m going to hold you in contempt.
“The [Plaintiff]: — in my statement, either.
“The Court: Come back here.
“The [Plaintiff]: What?
“The Court: I want you to show cause why you should not be held in contempt for speaking after I told you not to. What’s your explanation?
“The [Plaintiff]: Because I’ve been incarcerated for eight months listening to him—
“The Court: I don’t care.
“The [Plaintiff]: — and other people—
“The Court: I don’t care. That doesn’t give you the right to come in here and—
“The [Plaintiff]: — making—
“The Court: — think that you’re going to take over this courtroom.
“The [Plaintiff]: I’m not trying to take over, but I been quiet so long, I feel like I need to be heard.
“The Court: I want you to be quiet.
“The Court: I want you to be quiet.
“The [Plaintiff]: I need to be heard. I’m tired of—
“The Court: The court finds that you have violated the court’s order to stop talking when you were ordered to. That you have demonstrated a flagrant disrespect for this court and the court is going to hold you in contempt. You are hereby sentenced to three months. That’s all.”
In the colloquy between the trial judge and the plaintiff, the plaintiff was attempting to persuade the trial judge to reduce his appearance bond. This included the plaintiffs attempt to explain to the trial judge that setting an appearance bond in the amount of $300,000 was, for a person in his position, like setting no bond at ah. From that point on in the colloquy, it appears that the trial judge became irritated with the plaintiff. The plaintiff, apparently walking away from the bench because the hearing had concluded, stated, with reference to his denial that he confessed to the crime: “And I’m not making no changes ... in my statement, either.” That statement was overlapped by the trial judge’s admonishment to the plaintiff to “[b]e quiet. . . or I’m going to hold you in contempt.” At that point, the trial judge then asked the plaintiff to show cause why he should not be held in contempt of court. The remainder of the colloquy, with respect to the first alleged contempt, was in response to the show cause order, and cannot be the foundation for the finding of contempt.
The foregoing does not constitute contemptuous behavior — that is, the plaintiffs statement as he was walking away from the bench that he was “not making no changes ... in [his] statement, either.” Indeed, in the entire colloquy, the plaintiffs words were not words
Ill
Even if the words of the plaintiff could be considered contemptuous, the state has failed to demonstrate that the plaintiff had the necessary intent. See In re Dodson, supra, 214 Conn. 359 (“[t]o be held in criminal contempt, a contemnor must have the requisite intent; the conduct must be willful”). I agree, of course, with the portion of Justice Palmer’s opinion that provides that intent can be proven by inference. Justice Palmer’s opinion,
IV
Finally, the trial judge should have disqualified herself because of her personal embroilment in the matter. “While personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge’s response, if the judge has become visibly involved in a running controversy with the contemnor. ... In making this ultimate judgment, the inquiry must be not only whether there was actual bias on [the trial judge’s] part, but also whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” (Citation omitted; internal quotation marks omitted.) Jackson v. Bailey, supra, 221 Conn. 516. In Naunchek v. Naunchek, 191 Conn. 110, 116-17, 463 A.2d 603 (1983), this court stated: “In our interpretation of our contempt statutes, we must . . . take account of constitutional principles of due process that affect the adjudication of contempt. Mayberry v. Pennsylvania, [supra, 400 U.S. 465-66] held . . . that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he [or she] has become so personally embroiled with a contemnor that it is unlikely for him [or her] ‘to maintain that calm detachment necessary for fair adjudication.’ Id., 465. We are mindful of the oft-quoted statement of Justice Robert Jackson in Sacher
The embroilment in the present case is clearly demonstrated by the tone of the trial judge’s voice and by her interruption of the plaintiff, when she stated: “I’ve heard enough. Do not say one more word.” More importantly, after the trial judge had made three successive findings of contempt and imposed sentences totaling nine months, she attempted to entice the plaintiff to engage in further conduct that could have led to additional findings of contempt. In response to the plaintiffs comment that “this ain’t no courtroom,” the following colloquy occurred:
“The Court: Come back. You want to keep doing this until you add up the time?
“The [Plaintiff]: This will be the only conviction you get of me.
“The Court: Do you want to add more time? We can do this all day and you’ll be in jail longer than you will on the other charge. Shall we do it again?”
Accordingly, I agree with Justice Palmer’s opinion that there must be a reversal of the second and third findings of contempt, however, I disagree that the first finding of contempt should be affirmed.
I also agree with part I of Justice Palmer’s opinion, which holds that the two week limitation period contained in General Statutes § 52-273 does not implicate the subject matter jurisdiction of this court.
I am also not quite certain what Justice Palmer means when he states in his opinion that we must determine whether the contemnor’s conduct “was wilfully contumacious beyond a reasonable doubt.” I agree that the conduct that the state claims constituted the contempt must be proven beyond a reasonable doubt. But how does this court determine the standard that was employed by the trial court?
For example, in discussing the standard of review, Justice Palmer writes that “it is not our function ... to second guess the considered judgment of the trial court . . . .”
We must not confuse this de novo standard of review for determining whether the conduct constitutes contempt with the standard that should be applied to the findings of historical fact upon which the contempt is predicated. The standard of review for the historical facts is whether those findings of the trial court are clearly erroneous. So, for example, if the contemnor’s conduct is based upon the physical movement of the contemnor’s body in defiance, then the trial court’s finding that the body movement was made must stand unless clearly erroneous. On the other hand, whether the contemnor’s body movement constitutes contemptuous conduct is a legal question to be determined de novo by an appellate level court. Of course, the historical facts in the present case, found in the transcript and the audiotape, are not in dispute.
“In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hamersley, 44 Conn. 393, 413 (1877). Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt; Goodhart v. State, [84 Conn. 60, 63, 78 A. 853 (1911)]; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. Mayberry v. Pennsylvania, [supra, 400 U.S. 465-66].” (Internal quotation marks omitted.) Jackson v. Bailey, supra, 221 Conn. 500-501.
To be “susceptible” in this context simply means “capable” of constituting contempt. See Black’s Law Dictionary (6th Ed. 1990) (susceptible defined as “capable”).
Although I agree with Justice Palmer that the second and third findings of contempt must be reversed, I disagree with the reasoning he employed in part II B of his opinion with respect to the second finding of contempt. In my view, the conduct upon which the second contempt was predicated is not contemptuous under any standard of review. The following colloquy begins with the first finding of contempt and is followed by the second and third findings of contempt.
“The Court: The court finds that you have violated the court’s order to stop talking when you were ordered to. That you have demonstrated a flagrant disrespect for this court and the court is going to hold you in contempt. You are hereby sentenced to three months. That’s all.
“The [Plaintiff]: The court’s disrespecting me.
“The Court: All right, come back here again. What was that?
“The [Plaintiff]: I said I feel like I been disrespected.
“The Court: Now you have disrespected the court again. Now I want you to show cause why you should not be held in contempt for more time.
“The [Plaintiff]: Because don’t I have the right to speak?
“The Court: No, not when I tell you not to.
“The [Plaintiff]: I would—
“The Court: Do you want to apologize?
“The Court: All right—
“The [Plaintiff]: But after that can I still speak?
“The Court: No. I’ve heard enough—
“[Plaintiffs Counsel]: Let’s go . . . (inaudible) okay?
“The Court: That’s it.
“[Plaintiffs Counsel]: (inaudible) Okay?
“The [Plaintiff]: Yeah, okay.
“The Court: No, come back here. You’re a wise guy—
“The [Plaintiff]: I was talking to her.
“The Court: You’re disrespectful. Three more months. That’s it.
“The [Plaintiff]: Uh hum, yup.
“The Court: You want more?
“The [Plaintiff]: Do whatever you like.
“The Court: Come back. The court finds that you have been disrespectful again, repeatedly. Three more months. That’s all.”
With respect to the second contempt finding, Justice Palmer’s opinion states that “[b]ecause the plaintiff had been warned repeatedly to refrain from making any further comments, we have little doubt that, if the trial court had not asked for and accepted the plaintiffs apology, it would have been warranted in finding the plaintiff in contempt a second time for stating, ‘[t]he court’s disrespecting me.’ ” I find it hard to believe that those words can amount to contempt. Prior to the colloquy set forth in this footnote, and as already quoted in this opinion, the plaintiff was pleading with the trial court to allow him to be heard.
I also disagree with the reasoning employed by Judge Dupont in her concurring and dissenting opinion in which she indicates that the third finding of contempt should be upheld. I find it hard to accept that the plaintiffs statements “[u]h hum, yup” or “[d]o whatever you like” can constitute contempt. Furthermore, in response to a direct question asked by the trial judge, namely, “[y]ou want more?”, the plaintiff answered “[d]o whatever you like.” Contrary to Judge Dupont’s assertion, this answer to the direct question posed by the trial judge cannot be contemptuous. In addition, and also contrary to Judge Dupont’s assertion, the statement by the plaintiff that “this ain’t no courtroom” made after he had been found in contempt for the third time cannot be, and was not, the basis for the third contempt. See footnote 9 of this opinion. So, that would leave the statement “[u]h hum, yup” as the basis of the third finding of contempt.
In her concurring and dissenting opinion, Judge Dupont states that '‘this case is similar to Jackson . . . .” The conduct in the present case is not even within the same realm as the flagrant conduct and speech in Jackson v. Bailey, supra, 221 Conn. 498, and listening to the audiotape, or even just reading the colloquy, makes that abundantly clear.
The only similarity between the two cases is that the trial judges in each case imposed three successive judgments of contempt. The first finding of contempt in Jackson was predicated on a statement by the contemnor made after the trial judge had him returned to the courtroom as a result of his boisterous conduct when he previously left the courtroom. The trial judge
The entire colloquy regarding the occurrences after the trial judge’s third finding of contempt was as follows:
“The [Plaintiff]: This — this ain’t no courtroom.
“The Court: Come back. You want to keep doing this until you add up the time?
“The [Plaintiff]: This will be the only conviction you get of me.
“The Court: Do you want to add more time? We can do this all day and you’ll be in jail longer than you will on the other charge. Shall we do it again?
“The [Plaintiff]: Are you comfortable now? You’ve given me about three (inaudible)—
“The Court: How much are we up to now, [Edward Narus, Assistant State’s Attorney]?
“Mr. Narus: Nine months, Your Honor.
“The Court: Nine months? That’s right, because this court will not tolerate disrespect. When I say do not talk, you do not talk. Now I gave you the
“The [Plaintiff]: Do you want me to talk or not?
“The Court: I want you to answer my question.
“The [Plaintiff]: Yeah, I understand that.
“The Court: All right. That’s it.”
The court then called the next case.
Concurrence in Part
with whom MCDONALD, J., joins, concurring in part and dissenting in part. I would not reverse the trial court’s judgment as to two of the counts of summary criminal contempt as discussed in part II B and C of the majority opinion. I, therefore, dissent, in part.
The appellate review in this summary criminal contempt judgment, brought by a writ of error, is limited to a determination of whether three jurisdictional requirements existed at the time the trial court rendered its judgment. These requirements are met if the particular conduct of the plaintiff in error, Duane Banks (plaintiff), underlying each finding of contempt was legally susceptible of constituting a contempt, if the punishment was authorized, and if the court was qualified to conduct the summary contempt procedure. See Jackson v. Bailey, 221 Conn. 498, 500, 605 A.2d 1350, cert.
A writ of error precludes any review of findings of fact. State v. Assuntino, 180 Conn. 345, 429 A.2d 900 (1980); State v. Copian, 85 Conn. 618, 84 A. 280 (1912); Goodhart v. State, supra, 84 Conn. 60. Therefore, an adjudication that a contempt has been committed in the presence of a trial court is final and not reviewable where the three requisite jurisdictional requirements are present. Tyler v. Hamersley, 44 Conn. 393, 409 (1877). If there is jurisdiction, every court has the inherent power to adjudicate whether an act of contempt has been committed. Id., 411. The punishment must be immediate and peremptory, that is, final and conclusive. Id., 412. A court acts solely on the facts within its own knowledge and if there is jurisdiction, there can be no review of its conclusion that a contempt has occurred. State v. Melechinsky, supra, 36 Conn. Sup. 547.
Summary criminal contempt proceedings are not “the functional equivalent” of those criminal prosecutions
In this case, two of the requisite jurisdictional elements are satisfied because the punishment was authorized and the trial court was authorized to impose it summarily. See Jackson v. Bailey, supra, 221 Conn. 500. The only remaining issue is whether the plaintiffs conduct on the three occasions involved was legally susceptible of constituting a contempt. This determination rests on whether he disobeyed a legal order. Our review must be confined to whether the acts are capable of being construed as contemptuous, that is, legally susceptible of such construction, not whether the acts
In determining whether the conduct of the plaintiff on the three occasions was legally susceptible of constituting a contempt, it is important to note the following. This was not the first appearance of the plaintiff before this trial court. The trial court had reduced the plaintiffs bail, five months previously, from $500,000 to $300,000. A few moments prior to the contempts involved, the court, in a bail bond hearing, had denied a motion to reduce the plaintiffs bail to $35,000, after hearing argument of the plaintiffs counsel. The plaintiff then sought an opportunity to speak on his own behalf, which the court granted. The court listened to the plaintiff for a short time and then interrupted the plaintiff to say that he was repeating the arguments of his counsel that the court had already considered. The court also said that it would listen if the plaintiff had anything new to say, but that it did not want to hear the same arguments that counsel had already made. The plaintiff then implied that the court was prejudiced against him and was not dispensing justice evenly because he was “just a regular individual from the north end, I’m not a professional athlete or anything. Three hundred thousand dollars is ridiculous . . . .” The remark was made to a court that had already reduced his bond by $200,000 and that knew the plaintiff had a prior conviction for escape and two prior convictions for a failure to appear, and had been adjudicated in violation of probation twice. The court was also aware that the charges the plaintiff faced were robbery and assault, both in the first degree.
The trial court attempted to answer the plaintiffs remark but the plaintiff interrupted, at which time the
It is evident from the transcript that the plaintiff continued to talk, and then began to leave. The court told the plaintiff to “[c]ome back here” and asked him to show cause why he should not be held in contempt. The plaintiff continued to talk, and the court twice more asked him to be quiet. After the plaintiff continued to talk, the court found him in contempt and sentenced him to three months imprisonment. This exchange was the basis for the first contempt finding. Following a remark by the plaintiff that is audible but not understandable on the tape, the plaintiff said, “The court’s disrespecting me.” He began to leave again, not facing the court, and was muttering something because the court then said, “come back here again. What was that?” The court asked the plaintiff why he should not be held in contempt and the plaintiff persisted in speaking. The court gave him a chance to apologize, which the plaintiff did, but conditioned the apology on his claimed right to speak. Again, there is an inaudible remark, at which point we can infer that the plaintiff began to leave again because the court called the plaintiff back, and said that he was a “wise guy,” and disrespectful. This colloquy preceded the second finding of contempt.
The last contemptuous act occurred when the plaintiff muttered to himself and said sar castically, “Do whatever you like.” He again began to leave when the court said, “Come back,” whereupon the court found him in contempt a third time. After the third adjudication of contempt, the plaintiff said, “[T]his ain’t no courtroom.” The trial court summed up the plaintiffs behavior-involved in the three findings of contempt by saying that the plaintiff was disrespectful because he did not stop talking as he walked out of the courtroom and continued to make disr espectful comments to the court.
An appellate review of multiple findings of contempt in order to determine if each act is discrete and susceptible of constituting a contempt, or is one continuous delict, is difficult to conduct because there is no inevitable result or conclusive test to resolve the matter. See Jackson v. Bailey, supra, 221 Conn. 512; see also United States v. Seale, 461 F.2d 345, 354 (7th Cir. 1972).
In this case, as in Jackson v. Bailey, supra, 221 Conn. 513-15, each contempt cannot be isolated entirely from the others because a general warning of the conduct to be avoided applies to successive acts of contempt. Also, the affront to the dignity of the court or to the administration of justice involves the cumulative effect of the behavior involved, particularly its contumacious aspect as observed by others in the courtroom.
This case is similar to Jackson, where this court upheld three separate contempts, found by the trial court in a thirty second time frame, for which a total punishment of fifteen months imprisonment was given. The temporal proximity of two of the contempts in Jackson must have been less than ten seconds, and the warning not to engage in the behavior was given only once.
The trial judge had the power, and indeed the duty, to control her courtroom at all times, not only on the first occasion. Our courtrooms are the very places from which the public order is to be maintained. This concern is all the more heightened where there are other people in the courtroom charged with criminal offenses and awaiting their cases. The trial court was required to convey the message to others that affronts to the court’s authority will not be tolerated. This court should be careful to uphold the trial court’s ability to control a criminal courtroom continuously. This is necessary for a sense of order injudicial proceedings. See In re Dodson, supra, 214 Conn. 349-50.
Here, the conduct involved in each of the three findings of contempt was legally susceptible of constituting a contempt, the punishment was authorized and the court was qualified to act. That is all that we may review. Until this case, there was no Connecticut case that reversed a summary criminal contempt finding of a trial court. See Jackson v. Bailey, supra, 221 Conn. 498; In re Dodson, supra, 214 Conn. 344; Naunchek v. Naunchek, 191 Conn. 110, 463 A.2d 603 (1983); Moore v. State, supra, 186 Conn. 256; Whiteside v. State, supra, 148 Conn. 77; Goodhart v. State, supra, 84 Conn. 60. In my opinion, this case does not afford any reason to deviate from that precedent.
In contempt cases, the question of fact for a trial court with the requisite jurisdiction, which question cannot be reviewed, is whether the conduct of the plaintiff, in view of ail of the surrounding circumstances, constituted a disruption, hindrance or obstruction of the administration of justice or whether the conduct detracted from the authority or dignity of the court. It is not necessary, however, for the conduct to be observed by or understood
The court, the plaintiff, and perhaps the plaintiffs counsel, sometimes speak at once and “reasonable ears” could differ as to what was said.
In Jackson v. Bailey, supra, 221 Conn. 498, the first contempt was found for using an obscenity in the courtroom. After one more obscenity, without any further warning by the court, the second contempt was found. The third contempt was found when the defendant uttered a third obscenity, again without any intervening comment of the court.