State v. Johnson

52 N.C. App. 592 | N.C. Ct. App. | 1981

CLARK, Judge.

The defendant attacks the contempt order on the grounds that the proceeding (1) was not substantially contemporaneous with the contempt as required by G.S. 5A-14, and (2) defendant was not given a written order to appear and show cause as required by G.S. 5A-15.

G.S. 5A-14 provides:

“(a) The presiding judicial official may summarily impose measures in response to direct criminal contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt.” (Emphasis added.)

This statute, a part of the 1977 N.C. Sess. Laws Ch. 711 (codified as Chapter 5A of the General Statutes which replaced Chapter 5), was based on recommendations of the Criminal Code Commission and became effective 1 July 1978. Chapter 5A draws a sharp distinction between proceedings for criminal contempt (Article 1) and proceedings for civil contempt (Article 2). Article 1 distinguishes between direct and indirect contempt, G.S. 5A-13, which provides that direct contempt may be punished summarily according to G.S. 5A-14, or may defer adjudication and sentencing upon notice by a show cause order as provided by G.S. 5A-15.

Thus, the question before us is whether the trial court had the right to proceed summarily against the defendant (G.S. 5A-14) at the conclusion of the hearing for misconduct committed the preceding day, without entering and serving the defendant with a copy of a show cause order as required by G.S. 5A-15(a). The question may be resolved by determining whether the trial court imposed measures substantially contemporaneously with the contempt as provided by G.S. 5A-14(a).

Prior to the enactment of the 1977 N.C. Sess. Laws Ch. 711, the decisions of the Supreme Court of the United States had recognized the problems involved in summary punishment for direct contempt and the need for due process safeguards. In Sacher v. United States, 343 U.S. 1, 96 L.Ed. 717, 72 S.Ct. 451 (1952), the court noted that “[s]ummary punishment always, and rightly, is regarded with disfavor . . . .” 343 U.S. at 8, 96 L.Ed. at 723, 72 S.Ct. at 454; in Offutt v. United States, 348 U.S. 11, 99 L.Ed. 11, 75 S.Ct. 11 (1954), it was observed that summary punishment is justified by the need for immediate penal vindication of the dignity of the court; and in Taylor v. Hayes, 418 U.S. 488, 41 L.Ed. 2d 897, 94 S.Ct. 2697 (1974), it was held that due process requirements for notice and the right to be heard must be extended to persons cited for direct contempt of court where final adjudication and sentencing is delayed until after trial. See In re Paul, 28 N.C. App. 610, 222 S.E. 2d 479, disc. rev. denied, 289 N.C. 614, 223 S.E. 2d 767 (1976), see also the connected case of Paul v. Pleasants, 551 F. 2d 575, cert. denied, 434 U.S. 908, 54 L.Ed. 2d 196, 98 S.Ct. 310 (1977), decided under old Ch. 5 which has since been replaced by Ch. 5A, General Statutes of North Carolina.

The term “substantially contemporaneously with the contempt” in G.S. 5A-14(a) is construed in light of its legislative purpose of meeting due process safeguards. The word “substantially” qualifies the word “contemporaneously,” and clearly does not require that the contempt proceedings immediately follow the misconduct. Factors bearing on the time lapse should include the contemnor’s notice or knowledge of the charged misconduct, the nature of the misconduct, and other circumstances that may have some bearing upon the defendant’s right to a fair and timely hearing.

The contemptuous conduct in the case before us was committed during a bond hearing, not a trial, and it was obvious that the hearing would last a relatively short period of time. When the defendant was removed from the courtroom, the court was adjudicating, and defendant was put on notice, that the defendant’s conduct was so disruptive and contemptuous that he had lost his right to be present during the hearing. This ruling of the court was tantamount to a finding of direct contempt and summary punishment by depriving the defendant of his right to be present during the hearing. The imposition of imprisonment before the conclusion of the hearing could well have antagonized the already infuriated defendant and resulted in further disruption and delay of the hearing. Under these particular circumstances we find that the punishment on 7 August 1980 was substantially contemporaneous with the direct contempt on the preceding day.

Affirmed.

Judges Vaughn and Wells concur.