38 Mass. App. Ct. 179 | Mass. App. Ct. | 1995
This appeal concerns contempt proceedings initiated by a judge against two individuals who were to be witnesses at a murder trial. The question presented is whether the conduct of the defendants warranted a finding of contempt.
The defendants did not appear for trial on July 8, and a capias was issued for each.
The judge inquired of the assistant district attorney if he wished to proceed against the defendants for contempt, and he indicated that he did. The judge then placed both defendants in custody pending a bail hearing. On July 13, 1992, a hearing on the contempt was held before the same judge pursuant to the summary contempt procedure under Mass.R.Crim.P. 43, 378 Mass. 919 (1979). Counsel for both defendants at this point objected to proceeding under that rule.
Finally, the judge deemed the defendants’ failure to appear as sufficiently disruptive of the ongoing proceeding to warrant summary contempt proceedings. The judge read his findings into the record and issued a written adjudication of contempt. Each defendant was sentenced to three months’ confinement, with both sentences stayed pending appeal.
1. As a preliminary matter, the trial judge must warn individuals that they are in danger of being charged with contempt of court before contempt rules may be invoked. See Sussman v. Commonwealth, 374 Mass. 692, 697, 700 (1978). Here, no prior warnings were given to either of the defendants that her failure to appear as ordered would amount to contempt of court for which she could be fined or imprisoned. Contrast Commonwealth v. Corsetti, 387 Mass. 1, 7 (1982) (the witness “was not taken by surprise”). A careful reading of the transcript reveals that, in fact, the defendants were neither told of the significance of being recognized as a witness nor warned of the consequences of failure to appear.
Because of the absence of a proper warning, the adjudication of contempt cannot stand. Sussman v. Commonwealth, supra at 701.
While a trial judge has the inherent power to punish contumacious conduct, rule 43 permits a judge to punish such conduct summarily only when, to quote from the rule, “such summary punishment is necessary to maintain order in the courtroom.” Viewed as a whole,
The judgments are reversed; the findings of contempt are set aside; judgment is to enter for the defendants.
So ordered.
On July 8, 1992, the judge was informed that either the juvenile or Carr had contacted Attorney Joshua Dohan of the Committee for Public Counsel Services for advice pertaining to appearing in court; he advised them that they were required to appear, that they could request an attorney, and that they could then seek advice with regard to their self-incrimination rights. In a separate proceeding, Mr. Dohan was held in contempt for refusing to divulge the names and phone numbers of the persons who contacted him. Those charges were ultimately dismissed.
We also note that when the defendants were first in court on July 7, the juvenile was not accompanied by a parent, legal guardian, or attorney. Although from this there appears to be some merit to the argument that the
In addition to other restrictions discussed above, the availability of summary contempt is limited by rule 43 to situations in which “(1) the contemptuous conduct could be seen or heard by the presiding judge and was committed within the actual presence of the court; (2) the judgment of contempt is entered upon the occurrence of the contemptuous conduct; and (3) the punishment imposed for each contempt does not exceed three months imprisonment or a fine of five hundred dollars.”