214 Conn. 344 | Conn. | 1990
Lead Opinion
The petitioner Michael J. Dodson has brought a writ of error to this court seeking a reversal of the Superior Court judgment finding him in contempt of court and imposing a fine of $100. The writ raises the issue of whether the petitioner’s adjudication and punishment of summary criminal contempt comported with due process under the fourteenth
“The present case, which involves a review of a summary criminal contempt proceeding, comes before us on a writ of error which is the sole method of review of such proceedings. Whiteside v. State, 148 Conn. 77, 78-79, 167 A.2d 450 (1961); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853 (1911). The scope of our review reaches only those matters appearing as of record. State v. Assuntino, 180 Conn. 345, 347,429 A.2d 900 (1980); Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934). In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hammersley, 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, supra; (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, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27
The record discloses, inter alia, the following. On November 10,1988, the petitioner, an attorney admitted to the practice of law in Connecticut, was representing Michael Walker
“Mr. Dodson: I think it is most unusual. I think that is totally outrageous. The court can do—
“The Court: You may notify the defendant—
“Mr. Dodson: Thirty years more on the same set of facts, I think . . .
“The Court: Notify the defendant of his rights to appeal.
“Mr. Dodson: There is no basis—
“The Court: You’re out of order.
“Mr. Dodson: I know I am, but there is no basis for that sentence.
“The Court: He is held in contempt of this court.
*348 “Mr. Dodson: I apologize for my remarks.
“The Court: Notify the defendant of his rights to appeal on the record.”
The court thereupon took a recess. The petitioner was asked to remain in the courtroom and was allowed access to a telephone to obtain counsel. Shortly thereafter, Attorney Gerald Klein arrived at Judge Higgins’ chambers to indicate that he represented the petitioner. At that time, Klein was shown a copy of the transcript of the prior proceedings that had already been prepared. The court was prepared to continue and finish the summary contempt proceedings at that time. A request for a continuance, made by Klein, was granted to Tuesday, November 15,1988. (November 11,1988, a Friday, was a holiday and there was no court on November 14,1988, the following Monday, due to the Connecticut State Bar Association meeting.)
On Tuesday, November 15, 1988, the court held a hearing at which the petitioner appeared with Klein. After the court inquired whether, the petitioner wished to be heard, both Klein and the petitioner addressed the court. At the conclusion of the hearing, the court imposed a fine of $100. This writ of error by the petitioner followed.
The petitioner maintains that his conduct in open court on November 10,1988, did not constitute a contempt within the meaning of Practice Book § 985. This rule states that “criminal contempt is conduct that is directed against the dignity and authority of the court.” See State v. Jackson, supra. In denying the applicability of § 985, the petitioner points to Practice Book § 986
'll) 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.”
I
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 deal
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),
There can be little doubt that an attorney may be, and should be, zealous in his representation of a client and “[f]ull enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts.” Sacher v. United States, 343 U.S. 1, 9, 72 S. Ct. 451, 96 L. Ed. 717 (1952); see People v. DeJesus, 42 N.Y.2d 519, 369 N.E.2d 752, 399 N.Y.S.2d 196 (1977). “The arguments
On the matter of “courtroom decorum,” an attorney “[a]s an officer of the court . . . should support the authority of the court and the dignity of the trial court by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, jurors, and others in the courtroom.” American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), The Defense Function, Standard 4-7.1. The Code of Professional Conduct provides, inter alia, that a “lawyer shall not . . . (c) [ejngage in conduct intended to disrupt a tribunal.” Code of Professional Conduct Rule 3.5 (c). It also provides that “[i]t is professional misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of justice.” Code of Professional Conduct Rule 8.4 (d). It is appropriate to consider
As to the court, “ ‘[t]he role of the Trial Judge is neither that of automaton nor advocate’ . . . nor is a judge merely an ‘umpire in a forensic encounter’ but ‘[h]e is a minister of justice’ and in ‘whatever he does . . . the trial judge should be cautious and circumspect in his language and conduct.’ ” State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Woolcock, 201 Conn. 605, 622, 518 A.2d 1377 (1986). “ ‘A judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ . . . The trial judge should be the exemplar of dignity and impartiality.” Swenson v. Dittner, 183 Conn. 289, 297, 439 A.2d 334 (1981); State v. Echols, 170 Conn. 11, 13-14, 364 A.2d 225 (1975). The trial judge has the obligation to use his or her power to prevent distractions from and disruptions of the trial. Where the judge decides to impose sanctions for misconduct, “ordinarily [the judge should] impose the least severe sanction appropriate to correct the abuse and to deter repetition . . . . ” American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-3.3;
In addition, it is proper to note that “[t]he law of contempt is not made for the protection of judges who maybe sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947). They must be on guard against confusing offenses to their sensitivities with the obstruction of justice. In re Little, 404 U.S. 553, 555, 92 S. Ct. 659, 30 L. Ed. 2d 706 (1972). Indeed, “[a] court of law is not the personal fiefdom of the individual who happens to be sitting at the bench.” Edmunds v. Chang, 365 F. Sup. 941, 948 (D. Haw. 1973), rev’d on other grounds, 509 F.2d 39 (9th Cir.), cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975). The trial judge, nevertheless, has the duty to deter and correct misconduct of attorneys with respect to- their obligations as officers of the court to support the authority of the court and enable the trial to proceed with dignity. American Bar Association Standards of Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-3.5.
The remarks of the trial court and the petitioner, as well as the action of the court on November 10, 1988, have already been referred to. To these must be added that during the petitioner’s “outburst” the trial court later said that the petitioner’s voice was “elevated” and that he “threw” his pencil on the counsel table.
It is against this background and the legal and ethical benchmarks that we must now determine whether the petitioner’s conduct in open court on November 10, 1988, was contumacious because it went beyond the permissible parameters of advocacy and, thus, a contempt of court. We answer this in the affirmative.
The petitioner’s conduct took place in open court with the trial judge on the bench. It took place several weeks after a jury had found the petitioner’s, client, Walker, guilty; the trial was over. It took place as the trial judge was attempting to instruct the clerk to give Walker notice of his rights to appeal, as provided for by Practice Book § 945.
This conduct was a criminal contempt, directed as it was against the dignity and authority of the court. Practice Book § 985. “ ‘From necessity the court must be its own judge of contempts committed within its presence.’ Goodhart v. State, supra [62-63].” McClain v. Robinson, 189 Conn. 663, 669, 457 A.2d 1072 (1983). In In re Little, supra, 555-56, the court drew a distinction between the manner of the use of words by the alleged contemnors and doing so in a loud and boisterous manner as well as considering the effect of the conduct upon court proceedings. In reversing the state court judgment of contempt, the In re Little court said: “ ‘It is not charged that [the alleged contemnors] 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. . . .’ ” Id., 556. From what we have already
To be held in criminal contempt, a contemnor must have the requisite intent; the conduct must be willful. Matter of Pilsbury, supra; United States v. Thoreen, 653 F.2d 1332, 1342 (9th Cir. 1981); Sykes v. United States, 444 F.2d 928, 930 (D.C. Cir. 1971); Black’s Law Dictionary (5th Ed.). Intent may be inferred from facts and circumstances. United States v. Thoreen, supra. Generally, willfulness may be inferred from a reckless disregard for a court’s order. United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973); Sykes v. United States, supra; Murphy v. State, 46 Md. App. 138, 416 A.2d 748 (1980). Stated another way, “[t]he minimum requisite intent [for criminal contempt] is better defined as a volitional act by one who knows or should reasonably be aware that his conduct is wrongful.” United States v. Seale, supra, 368. The requisite intent in this case may properly be inferred from the record of what occurred on November 10,1988. An attorney need not be accorded one contemptuous remark before a judge may consider a summary contempt adjudication. Commonwealth v. Stevenson, 482 Pa. 76, 90, 393 A.2d 386 (1978). The danger of the allegedly contumacious conduct of offending the authority and dignity of the court “ ‘must not be remote or even probable, it must immediately imperil [it] .... ’ ” In re Little, supra, 555; accord In re McConnell, supra (contempt reversed where attorney failed to carry out threat to disobey court order); United States v. Seale, supra, 370. It is evident that the authority of the court in this case was significantly hindered by the petitioner’s conduct. Despite the court’s order to the clerk to notify the defendant Walker of his right to appeal, the petitioner’s
II
It is appropriate here to advert to the judgment of contempt which this writ of error brings to this court. In his second claim of error, the petitioner maintains that he was held in contempt on November 10, 1988, without any opportunity to address the court prior to the adjudication of guilt. The state argues, to the contrary, that the trial court’s statement that “[the petitioner] is held in contempt of this court” on November 10,1988, was not a final adjudication of guilt because, otherwise, it would have been pointless to have afforded him an opportunity to obtain counsel and there would not have been any need to “continue and finish” the proceedings as the court was prepared to do on November 10,1988. The state claims, accordingly, that the final adjudication of guilt did not take place until the conclusion of the hearing on November 15, 1988. It contends that the petitioner incorrectly claims that he was not given the opportunity because the court’s statement on November 10,1988, i.e., “[h]e is
Although the court, in its articulation, said that “[the petitioner] was held in contempt [on November 10, 1988],” a writ of error lies only from a final judgment and for errors of law apparent on the face of the record. Geddes v. Sibley, 116 Conn. 22, 24, 163 A. 596 (1932). Even though the petitioner was held in contempt on November 10,1988, it is evident, and the petitioner does not contend otherwise, that there was no final judgment on that date from which a writ of error would lie. This is so because no sanction or punishment had yet been imposed and, therefore, there had been no final judgment disposing of the matter. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see Barbato v. J. & M. Corporation, 194 Conn. 245, 247-48, 478 A.2d 1020 (1984). No final judgment existed in this contempt proceeding until the court decided on November 15, 1988, not to change its earlier ruling but proceeded to final adjudication and imposed the sanction of the $100 fine. This, we submit, has significance on the remaining issues to be decided, particularly the petitioner’s claim that the continuance to November 15, 1988, which he requested, all but attenuated the nature of the proceeding against him as one in summary criminal contempt and required, inter alia, the recusal of the trial judge.
The petitioner next claims that the proceedings that culminated in the finding of summary criminal contempt were conducted in violation of his due process rights as set forth in § 988 of the Practice Book, and as afforded by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.
The United States Supreme Court “has often recognized that the requirements of due process cannot be. ascertained through mechanistic application of a formula.” Groppi v. Leslie, 404 U.S. 496, 500, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972). The essence of due process is fundamental fairness. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984), cert. denied, 471 U.S. 1068, 105 S. Ct. 2146, 85 L. Ed. 2d 503 (1985).
The petitioner contends that he was denied the due process provided for by Practice Book § 988. The state disagrees, claiming that he was accorded the required due process although it does concede that § 988 was not followed literally. The lack of a “mechanistic application”; see Groppi v. Leslie, supra; of Practice Book § 988 should not serve to defeat its due process requirements if they were substantively met. “The design of the rules of practice is both to facilitate business and to advance justice; ‘they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.’ ” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Rules of practice must be construed reasonably and with consideration of this purpose. Densmore v. Eyles, 32 Conn. Sup. 519, 521, 342 A.2d 62 (1975); 20 Am. Jur. 2d, Courts § 86. Rules “are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.” State v. Emmett, 108 N.J. Super. 322, 325, 261 A.2d 374 (1970).
The petitioner was not denied due process despite the trial court’s failure to comply literally with Practice Book § 988. His being held in contempt on November 10, 1988, cannot be said to have come as any
As to that portion of Practice Book § 988 that provides, “[p]rior to the adjudication of guilt, the judicial
In addition, Practice Book § 988 permits a criminal contempt to be punished “summarily if the conduct constituting the contempt was committed in the actual
That the matter was not fully disposed of until November 15,1988, cannot convert the contempt proceeding started on November 10,1988, into one requiring a hearing before another judge. See Matter of DeMarco, 224 N.J. Super. 105, 118, 539 A.2d 1230 (1988). Some courts have indicated that it is often useful to postpone disposition of a contempt charge against an attorney for a time after the alleged contumacious conduct. Sacher v. United States, supra, 8-10; see Taylor v. Hayes, supra, 498-500; Pennsylvania v. Local Union 542, International Union of Operating Engineers, supra, 512-14 (trial judge’s twenty-four hour delay did not bar summary contempt proceeding);
Further, the petitioner advances another basis for arguing that a different judge should have conducted the hearing on November 15,1988. The petitioner now claims, although he never did in the trial court, that his “remarks” were directed at the trial judge, specifically the sentence imposed. He argues that his
The concern of due process is the fair administration of justice. Mayberry v. Pennsylvania, supra, 465. There are times when a judge, instead of representing “ ‘the impersonal authority of [the] law,’ ” has permitted himself to “become so ‘personally embroiled’ with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge.” Id.; Offutt v. United States, 348 U.S. 11,17, 75 S. Ct. 11, 99 L. Ed. 11 (1954) (in Ojfutt, there was “an intermittently continuous wrangle on an unedifying level” between the trial judge and the attorney over the fourteen days of the trial). This case is not Offutt, as the trial judge in this case was “not an activist seeking combat [as in Offutt],” nor is there any claim of any difficulty between the trial judge and the petitioner during the underlying murder trial. Mayberry v. Pennsylvania, supra. This trial judge did not find himself in the position of the trial judge in Mayberry, where during the course of a
In circumstances where the final adjudication of criminal contempt and the sentencing are postponed until after the underlying trial, the later case of Taylor v. Hayes, supra, is instructive on the fundamental due process requirements of the fourteenth amendment in state court criminal contempt proceedings. Factually, Taylor is significantly distinguishable from this case.
We recognize that there are cases where “contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in con
With these considerations in mind, we examine the record. It does not appear that the trial judge ever became embroiled in a “running controversy” with the petitioner. Moreover, the petitioner’s conduct was not a “personal attack” on the trial judge as his brief all but explicitly concedes. In any event, even though short of a “personal attack,” the trial judge’s reaction to the petitioner’s conduct cannot fairly be said to have been such that the trial judge could not “ ‘hold the balance nice, clear and true between the State and the [petitioner] . . . .’” Taylor v. Hayes, supra, 501. The record does not disclose, as it did in Taylor, “a mounting display of an unfavorable personal attitude . . . and his motives, sufficiently so that the contempt issue should have been finally adjudicated by another judge.” Id., 501-502. Significantly, the petitioner does not refer to any instance on November 10,1988, where the court became personally embroiled with the petitioner. See United States v. Renfroe, 634 F. Sup. 1536 (W.D. Pa.), aff’d, 806 F.2d 254 (3d Cir. 1986). Unlike the petitioner in Taylor, but like the petitioner in Ungar v. Sarafite, supra, the contempt of the petitioner in this case did
The transcript of the hearing of November 15,1988,
The petitioner was permitted to address the trial court at the hearing to urge that his behavior was “the acceptable conduct of an attorney representing his client,” to “present matters in mitigation”
We recognize that the “sole credible basis for the summary contempt process is necessity, a need that the assigned role of the judiciary be not frustrated.” In re Fair Lawn Education Assn., 63 N.J. 112, 114-15, 305 A.2d 72, cert. denied, 414 U.S. 855, 94 S. Ct. 155, 38 L. Ed. 2d 104 (1973). Although this judicial “power is as ancient as the courts to which it is attached and
There is no error.
In this opinion Peters, C. J., Callahan, Glass, Covello and Hull, Js., concurred.
The fourteenth amendment to the United States constitution provides in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law . . . . ”
The constitution of Connecticut, article first, § 8, provides in part: “No person shall . . . be deprived of life, liberty or property without due process of law . ”
Practice Book § 985 provides: “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 § 988, entitled “Nature of Proceedings” (summary contempt), provides: “A criminal contempt may be punished summarily if the conduct constituting the contempt was committed in the actual presence of the court or 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 guilt is based. Prior to the adjudication of guilt the judicial authority shall inform the
On September 22,1988, after a jury trial, Michael Walker had been found guilty of one count of murder in violation of General Statutes §§ 53a-8 and 53a-54a (a), one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a) and one count of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8. The first count involved the death of Thomas Dixon; the second count involved Tracey Fisher as a coconspirator; and the third count involved the injury of Barrington Solomon. The trial court, Higgins, J., imposed a sentence of sixty years on the first count, and sentences of twenty years on each of the second and third counts to be served concurrently but to be served consecutively to the sentence imposed on the first count. Thus, the total effective sentence was eighty years. The petitioner also represented Walker during his trial.
Practice Book § 986, entitled “Who May Be Punished [for Criminal Contempt],” provides: “The judicial authority may punish by fine or imprisonment or both:
In Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L. Ed. 242 (1821), the court also said that courts “by their very creation [are vested] with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates . . . .” See also 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 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987), the court also noted “ ‘[t]hat the power to punish for contempt is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice.’ ” See also Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S. Ct. 942, 55 L. Ed. 797 (1911).
The American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-4.1, entitled “Inherent power of the court,” provides: “The court has the inherent power to punish any contempt in order to protect the rights of the defendant and the interests of the public by assuring that the administration of criminal justice shall not be thwarted. The trial judge has the power to cite and, if necessary, punish summarily anyone who, in the judge’s presence in open court, willfully obstructs the course of criminal proceedings.”
The American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-3.3, entitled “Judge’s use of powers to maintain order,” provides: “The trial judge has the obligation to use his or her judicial power to prevent distractions from and disruptions of the trial. If the judge determines to impose sanctions for misconduct affecting the trial, the judge should ordinarily impose the least severe sanction appropriate to correct the abuse and to deter repetition. In weighing the severity of a possible sanction for disruptive courtroom conduct to be applied during the trial, the judge should consider the risk of further disruption, delay, or prejudice that might result from the character of the sanction or the time of its imposition.”
The American Bar Association Standards for Criminal Justice (2d Ed. Sup. 1982), Special Functions of the Trial Judge, Standard 6-3.5, entitled “Deterring and correcting misconduct of attorneys,” provides: “The trial judge should require attorneys to respect their obligations as officers of the court to support the authority of the court and enable the trial to proceed with dignity. When an attorney causes a significant disruption in a criminal proceeding, the trial judge, having particular regard to the provisions of standard 6-3.3, should correct the abuse, and if necessary, discipline the attorney by use of one or more of the following sanctions:
“(a) censure or reprimand;
“(b) citation or punishment for contempt;
“(c) removal from the courtroom;
“(d) suspension for a limited time of the right to practice in the court where the misconduct occurred if such sanction is permitted by law; and
“(e) informing the appropriate disciplinary bodies in every jurisdiction where the attorney is admitted to practice of the nature of the attorney’s misconduct and of any sanction imposed.”
At the November 15, 1988 hearing, counsel for the petitioner characterized his client’s conduct on November 10, 1988, as an “outburst.” He also noted that he had read the transcript of November 10,1988, and that he understood “from speaking to other people who were here that the way [the petitioner] expressed himself was worse than what you see in black and white.” The general rule is that the admissions of an attorney are imputed to his client. Lafayette Bank & Trust Co. v. Aetna Casualty & Surety Co., 177 Conn. 137, 140, 411 A.2d 937 (1979); see 7 Am. Jur. 2d, Attorneys at Law § 136.
We note that it was not until November 28,1988, at least thirteen days after the trial court imposed the fine upon the petitioner, that he filed a motion for articulation in which he asked for a written articulation “of the nature of the legal basis for the sanctions placed upon him for conduct which transpired on November 10, 1988.” That motion also “specifically” requested “that the court apprise him as to whether its action was civil or criminal contempt and whether if of a criminal nature, the action was taken under Connecticut Practice Book Section 988. Alternatively, if no contempt was found, [petitioner requested] whether the aforementioned action was taken under Connecticut General Statutes Section 51-84.”
The trial judge’s articulation stated that the “proceedings were Summary Criminal Contempt under P.B. § 988.” It also said that “[t]he contempt was self-evident. The court imposed a fine of $100 in punishment of said contempt to uphold the dignity of the court. State v. Jackson, 147 Conn. 167, 169 [158 A.2d 166] (1960).”
Practice Book § 945, entitled “Notification of Right to Appeal,” provides: “Where there has been a conviction after a trial, or where there has been an adverse decision upon an application for a writ of habeas corpus brought by or on behalf of one who has been convicted of a crime, it shall be the duty of the clerk of the court, immediately after the pronouncement of the sentence or the notice of a decision on the application for a writ of
There is no claim by the petitioner on appeal that the sentence imposed was in excess of permissible statutory limits.
One court has noted the difficulty of defining “misconduct” in the context of contempt and defined it “as conduct inappropriate to the particular role of the actor, he he judge, juror, party, witness, counsel or spectator.” United States v. Seale, 461 F.2d 345, 366 (7th Cir. 1972).
We note that during the hearing of November 15, 1988, counsel for the petitioner said, inter alia, to the court: “I have read the transcript of what occurred Thursday. I was not, of course, there. I asked the court before, and I will ask again, to consider changing its ruling.” It is fair to say that at the hearing of November 15,1988, which was the date to which the matter had been continued at the request of petitioner’s counsel, the latter asked the court to open and change its ruling of November 10,1988.
We need not discuss the petitioner’s assertion concerning article first, § 8, of the Connecticut constitution. He provides no separate analysis under the Connecticut constitution of that matter as pertains to this claim. In any event, we note that we have said that the due process provisions of the United States and Connecticut constitutions generally have the same meaning and impose similar constitutional limitations. See Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982); State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).
“Summary” in this context has been said not to refer to the timing of the action with reference to the offense but refers rather to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, to bring evidence, awaiting briefs and the like. Sacher v. United States, 343 U.S. 1, 9, 72 S. Ct. 451, 96 L. Ed. 2d 717 (1952). The term refers to the character of the proceedings, not its timing; it does not demand instant punishment. People v. Fusaro, 18 Cal. App. 3d 877, 889, 96 Cal. Rptr. 368 (1971), cert. denied, 407 U.S. 912, 92 S. Ct. 2445, 32 L. Ed. 2d 686 (1972).
There is no transcript of the circumstances of the granting of this continuance on November 10,1988. We do, however, know that after the court recessed, following the contumacious conduct, an attorney representing the petitioner came to the trial judge’s chambers. What transpired at that time is not in the transcript. The same attorney also represented the petitioner at the subsequent hearing on November 15,1988. He, however, did not argue the writ of error before this court.
The transcript of the hearing of November 15,1988, is reproduced in the state’s brief.
The trial judge in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), found that Mayberry had committed one or more contempts on eleven of the twenty-one days of trial and sentenced Mm to not less than one and not more than two years for each of the eleven contempts or a total of eleven to twenty-two years.
In Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974), the petitioner Taylor represented the accused in a Kentucky murder trial. During that “turbulent” trial,' the respondent Judge Hayes informed the petitioner on nine different occasions that he was in contempt of court. Id., 490. No sentence was imposed during the trial on any charge and petitioner was permitted to respond to most, but not all, of the charges. At the conclusion of the trial and in the presence of the jury that had returned a guilty verdict, the trial judge made a statement concerning the
The transcript of the hearing of November 15,1988, discloses the following:
“The Court: You wish to be heard?
“Mr. Klein: Yes, I do, your Honor.
“[I am] Gerald Klein and I represent Mr. Dodson as the court knows for purposes of this proceeding.
“Your Honor, since Thursday I had an opportunity to really educate myself on some of the statutes and cases that apply to contempt, which occurs before the court. I had briefly noted in chambers State versus Andrew Maliszewski 36 Conn. Supplement 547, which includes a very thorough discussion between civil and criminal contempt, and also between summary and non-summary contempt.
“I have read the transcript of what occured Thursday. I was not, of course, there. I asked the court before, and I will ask again, to consider changing its ruling. It appears that Mr. Dodson was not expecting the legal justified sentence that the court imposed and reacted in an emotional way as attorneys from time to time do. I apologize to the court on his behalf as he apologized to the court.
“I would like to ask the court to reconsider that, and if the court feels that some sanction is in order, I would again draw the court’s attention to [§] 51-84 of the General Statutes, which subjects officers of this court, attomeys-at-law to certain rules and the court can fine any lawyer up to one hundred dollars or suspend or disbar that lawyer for an infraction of those rules, which is truly a civil matter. Any action under [General Statutes §§] 51-33 or 51-33a would, of course, be in the nature of a criminal conviction. I would respectfully suggest to the court that that might be too harsh a penalty upon this young attorney, who has been a member of the bar five or six years and in my opinion has a good reputation and obviously one only has to glance at the transcript to see that he spoke out of line. These things happen from time to time and I haven’t seen him in that type of a situation before, the many times I have seen him appear before many judges.
“Again, your Honor, [§] 51-33 the so-called summary criminal contempt indicates that the court may punish by fine or imprisonment anyone who behaves contemptuously or in a disorderly manner up to one hundred dollars or six months in jail or both.
“The Practice Book section in dealing with this particular statute, Section 988 summary criminal contempt. Such punishment as appears before the court can take place if necessary to maintain order in the courtroom. A judgment of guilt of contempt shall include recital of those facts on which*373 the adjudication is based. Prior to the adjudication of guilt the judicial authority shall inform the defendant of the accusations against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by presenting evidence of excusing or mitigating circumstances.
“Now, it is my understanding that [§] 51-33a non-summary criminal contempt requires a warrant and filing of an information and obviously from my perspective in representing this man we don’t want that to occur.
“I don’t know if the state is interested in that type of prosecution. I doubt it, but if the court is going to proceed under [§] 51-33 by way of mitigation, I think I have stated or I will put on the record what I told the court on Thursday in chambers.
“I had occasion to have a discussion with Mike Dodson earlier in the day about this case, which very coincidentally I know a lot about and as the State’s Attorney knows, I represented Mr. Solomon, one of the victims. I previously represented Tracey Fisher and I just knew the cast of characters here. Now, [a] very minor personal problem was bothering him earlier in the day [that] may have contributed to his outburst in the courtroom.
“Again, I read the transcript and I understand from speaking to other people who were here, that the way he expressed himself was worse than what you see in black and white, but I would ask the court to consider the various options apparently that the court would have here to fashion a sanction, if there is one, into a non-criminal situation which really if the court will not accept his belated apology or second apology, a more thorough apology to discipline him under [§] 51-84 which calls for just a fine up to one hundred dollars.
“That is all I have to say.
“The Court: You have anything to say?
“Mr. Dodson: Yes, your Honor please. I have a brief statement.
“May it please the court, what I said in court last Thursday was a spontaneous and emotional response to what I perceived as a gross injustice done to my client. No disrespect of the court was intended and if my remarks were interpreted as disrespect, I sincerely apologize to the court. On the other hand, to me silence in the face of injustice is acquiescence with it. To have said nothing would have been the easier and safer thing to do, but not something I could have done. As a zealous advocate of my client’s interests, and as a human being, I had to let the court know what I perceived as an extreme miscarriage of justice. To that extent I have no regrets and I would do it again.
“Again, no disrespect shown to the court and I apologize.
“The Court: The statement contains portions that can be characterized as nothing less than unmitigated gall. Your statement concerning silence being acquiescence apparently is a lack of recognition on your part that*374 the process provides an appellate review, which is available to your client. Clients are not to be served by outrageous outbursts of their lawyers during a session in Superior Court.
“The court will impose a fine of one hundred dollars. These proceedings shall be certified to the Judges of the Superior Court, State Bar Grievance Association and the Hartford County Bar for their permanent records.”
Petitioner’s counsel referred to General Statutes §§ 51-33, 51-33a and 51-84.
During his presentation, petitioner’s counsel stated that he had spoken to the petitioner on November 10, 1988, at a time before the conduct involved in this appeal, and said that a “very minor personal problem was bothering [the petitioner] earlier in the day [that] may have contributed to his outburst in the courtroom.” The petitioner never referred to any such “problem” when he addressed the court on November 15, 1988.
Dissenting Opinion
dissenting. I agree with the majority that there is a sufficient basis in the record to support the trial court’s finding of contempt. I disagree, however, with its conclusion that “there was no violation of the substance” of the following provision of Practice Book § 988 prescribing the procedure for a summary criminal contempt proceeding: “Prior to the adjudication of guilt the judicial authority shall inform the defendant of the.accusation against him and inquire as to whether he has any cause to show why he shoul,d not be adjudged guilty of contempt by presenting evidence of excusing or mitigating circumstances.”
The state concedes that this provision, which incorporates the basic constitutional requirements of notice and hearing contained in our federal and state constitutions, “was not followed literally.” Indeed, the record demonstrates that the trial court found the
The majority attempts to justify this oversight of the trial court by relying upon the proceedings of November 15,1988, when the petitioner was given an opportunity to try to persuade the judge to reverse the finding of contempt that he had previously made. The majority does not explain how this proceeding can be deemed to cure the deficiency in the earlier proceeding when the contempt finding was made. Anyone familiar with human nature must recognize the herculean task imposed upon a litigant seeking reversal from the same trier of a finding of fact that has been publicly announced. Such a belated opportunity to be heard is not the equivalent of the notice and hearing prior to any adjudication of guilt that § 988 prescribes.
The evident purpose of the rule is to bar any adjudication of summary criminal contempt without prior notice that the offending person may be held in contempt and without allowing him to present “excusing or mitigating circumstances.” Since we have the rule, the trial judge should have followed it or, as an alternative, should have referred the matter for prosecution under Practice Book §§991 and 992
Accordingly, I dissent.
“[Practice Book] Sec. 991.--nature of proceedings
“A criminal contempt not adjudicated under Sec. 987 shall be prosecuted by means of an information. The judicial authority may, either upon his own order or upon the request of the prosecuting authority, issue an arrest warrant for the accused. The case shall proceed as any other criminal prosecution under these rules and the General Statutes.”
“[Practice Book] Sec. 992.--disqualification of judicial AUTHORITY
“The trial and all related proceedings on which the contempt charges are based shall be heard by a judicial authority other than the trial judge or the judicial authority who had issued the order which was later disobeyed.”
