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State v. Holland
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:  1997 ME 42
Docket: CUM-96-198
Submitted on briefs January 24, 1997
Decided March 13, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.

STATE OF MAINE v. RORY HOLLAND
WATHEN, C.J.

	[¶1]  Defendant appeals from a judgment entered in the Superior
Court (Cumberland County, Crowley, J.) affirming a judgment entered in the
District Court (Portland, MacNichol, J.) on a summary conviction of criminal
contempt pursuant to M.R. Crim. P. 42(a).{1}  On appeal defendant argues that
the District Court failed to comply with Rule 42(a), that the facts are
insufficient to support a summary contempt conviction, and that the District
Court abused its discretion by imposing a 48 hour jail sentence.  We
conclude that the facts certified by the District Court are insufficient to
support the conviction and vacate the judgment.
	[¶2]  The facts certified by the District Court in its Contempt Order 
are as follows:

	The Defendant Rory Holland disrupted the arraignment
session of District Court on this date by entering the Court and
leaving on at least six separate occasions.  This was done in a one
hour time span.  This was a blatant and calculated attempt by Mr.
Holland to disrupt the Court.  He has engaged in these tactics in
the past.  
	On resuming Court video arraignments at approximately
10:30 this morning, the Defendant, again, entered the Court and
sat down.  In a low voice I instructed the Court Officer to ask the
Defendant to leave the courtroom.  The Defendant started to
argue with the Court Officer and made no attempt to leave.  I
then ordered the Defendant to leave the courtroom, he did not
move and he made no answer.  I instructed him that if he did
not leave, I would hold him in contempt.  Again, he made no
answer and he did not move.  I then found him in contempt,
sentenced him to 48 hours in County Jail, and recessed the
Court.

	[¶3] When a trial judge confronts a breach of decorum, there is little
time for reflection or research.  The judge must immediately determine
whether the conduct constitutes contempt and whether a summary or a
plenary proceeding is required.  A criminal contempt of court is "any act
which is calculated to embarrass, hinder or obstruct the court in the
administration of justice or to lessen its authority or dignity."  State v.
Delong, 456 A.2d 877, 881 (Me. 1983).  Wilfulness, an essential element of
criminal contempt, is established if the act is done by one who "should
reasonably have been aware that his conduct was wrongful."  State v.
Campbell, 497 A.2d 467, 473 (Me. 1985) (quoting Commonwealth of
Pennsylvania v. Local Union 542, International Union of Operating
Engineers, 552 F.2d 498, 509 (3d Cir. 1977)).
	[¶4]  The Maine Rules of Criminal Procedure authorize summary
conviction of criminal contempt if the contumacious conduct is committed
in the actual presence of the court.  M.R. Crim. P. 42(a). A summary
conviction for contempt imposes criminal penalties in an extraordinary
proceeding in which "the function of judge, jury and prosecutor [are]
combined in a single individual."  In re Bernard, 408 A.2d 1279, 1282 (Me.
1979).  In Bernard, we held that a summary proceeding is to be "strictly
guarded", and will not be justified unless the contumacious conduct
"actually obstructed the administration of justice." Id.  Consistent with this
requirement is the additional requirement that summary proceedings are
justified only in the presence of "an overriding need for immediate
punishment to prevent the contumacious conduct from disrupting the
orderly progress of the trial."  Id. (citing Harris v. United States, 382 U.S.
162, 165 (1965)).  Thus, a summary conviction will be upheld when it can
"clearly be shown" that defendant engaged in a wilful and actual obstruction
of the administration of justice that presented an overriding need for
immediate punishment.  Campbell, 497 A.2d at 472 (quoting In re
McConnell, 370 U.S. 230, 236 (1962)).
	[¶5]  Rule 42(a) operates on the premise that proof of the offending
conduct is not necessary when the court has witnessed it.  Because there are
no fact-finding procedures designed to reveal the truth, the findings of the
court must be taken as true, undisputed, and complete.  It is for this reason
that Rule 42(a) requires that "[t]he order of [summary] contempt shall recite
the facts and shall be signed by the justice or judge and entered of record." 
M.R. Crim. P. 42(a).
  
Rule 42(a) requires three things:  (1)  the justice must certify
that he saw or heard the contemptuous conduct,  (2)  the justice
must certify that the conduct was committed in the court's
presence, and (3)  the signed order must recite the necessary
facts. 

Delong, 456 A.2d at 883.  The court's signed order facially complies with
each of these requirements.  The order describes the offensive conduct --
entering and leaving the courtroom several times within one hour;{2}  it
indicates the conduct occurred in the courtroom;  and although the order
does not affirmatively state that the judge saw or heard the conduct, this fact
is documented in the transcript.{3} 
	[¶6]  The purpose of the certification requirement is to present a full
and clear statement of the facts out of which the contempt arose to avoid
"compelling the appellate court to infer from  a transcript the basis of the
contempt."  Delong, 456 A.2d at 882.  "[O]nly the filing of the certificate can
establish a record of what facts the Justice found to be contemptuous." 
Alexander v. Sharpe, 245 A.2d 279, 289 (Me. 1968).{4}  Thus, whether the
courtroom conduct amounts to criminal contempt is a question of law for
the appellate court to determine based on the undisputed facts.  When, as
here, an appeal is taken from the Superior Court acting as an appellate
court, we review directly the record before the trial court.  
	[¶7]  The order recites that defendant's conduct consisted of entering
and leaving the courtroom six times within an hour while the court was
conducting video arraignments.  Although such conduct could obstruct the
administration of justice, we cannot conclude on the facts of this case that
an actual obstruction has been clearly shown.  In Campbell, we upheld the
summary contempt conviction of an attorney for leaving the courtroom
several times, as "part of his continuing refusal to abide by the ruling of the
court excluding his client from the proceedings."  Campbell, 497 A.2d at
472.  It was clearly shown, however, in the trial court's certification of facts
that the attorney's conduct had repeatedly interrupted the progress of a
criminal trial.  There is no similar showing in the present case.  Defendant
was a spectator attending the court to observe morning arraignments, unlike
the attorney in Campbell, whose presence was required in an ongoing jury
trial.  Although the court order states that defendant "disrupted the
arraignment session", and that "[h]e has engaged in these tactics in the
past", such conclusory comments do not suffice to show an actual
obstruction.   Alexander, 245 A.2d at 288.  
	[¶8] Nor are the facts sufficient to clearly show that defendant's
conduct was wilful.  Defendant, a layperson attending arraignments that
were open to the public, was not warned to refrain from entering and
leaving the courtroom.  The facts recited in the order do not support the
conclusion that his conduct was so disruptive that he "should reasonably
have been aware that his conduct was wrongful." Although the court's
comment about past "tactics" and a "blatant and calculated attempt ... to
disrupt" may suggest such an awareness, we may not infer it from such
conclusory statements. 
	[¶9]  We recognize that the summary contempt power "cannot be
denied the trial judge in an appropriate case without inviting or causing
such obstruction to the orderly and impartial administration of justice as
would endanger the rights and safety of the entire community.'"   Bernard,
408 A.2d at 1282.  We also recognize that the judge who witnesses the
courtroom conduct is in the best position to determine whether the
conduct was wilful and whether it actually obstructed the proceedings of the
court.  Nevertheless, the extraordinary nature of the power of summary
contempt demands that a sufficient factual basis to support the conviction be
clearly shown and certified in the court order.  We are compelled to
conclude that the facts in this case are insufficient to support the conviction.
	The entry is:
Judgment vacated.  Remanded with
instructions to dismiss the summary
contempt proceedings initiated by the
District Court.
 
Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Neale A. Duffett, Esq. Cloutier, Barrett, Cloutier & Conley 22 Monument Square Portland, ME 04101
FOOTNOTES******************************** {1} A criminal contempt may be punished summarily if the justice or judge certifies that the justice or judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the justice or judge and entered of record. M.R. Crim. P. 42(a). {2} The State argues that the court also found defendant in contempt for failing to respond to the request to leave the courtroom. Because the lawfulness of the order to leave depends upon the occurrence of disruptive conduct, the court appropriately focused on defendant's conduct in entering and leaving the courtroom as the basis for the finding of contempt. {3} "Although the better practice would be for the court to state explicitly that it saw or heard the refusal (to testify), the fact that the court did see and hear Tammy Delong's conduct is an objective fact that is thoroughly documented in the transcript." Delong, 456 A.2d at 883. {4} In Delong, 456 A.2d at 822, we held that Rule 42(a) does not require two separate documents, an order and a certificate: the facts may be recited in the contempt order signed by the judge or justice.