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03/22/90 MICKEY W. SWISHER v. UNITED STATES

March 22, 1990

MICKEY W. SWISHER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Peter H. Wolf, Trial Judge

Before Belson and Schwelb, Associate Judges, and Reilly, Senior Judge.

IN Agreement opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: Appellant Mickey W. Swisher first learned that he was charged with criminal contempt of court when the trial Judge found him guilty of that offense. He was convicted and sentenced to imprisonment without having had the opportunity to discuss his case with his attorney. Concluding that Swisher's substantial rights were violated, we reverse his conviction.

I

Swisher, a service station attendant who was then nineteen years of age, was arrested on March 4, 1988 and charged with unlawful possession of PCP and marijuana, in violation of D.C. Code § 33-541 (d) (1988). It appears from the court file that he was one of three occupants of an automobile which had been stopped by police for a traffic infraction. Drugs and alleged paraphernalia were recovered from the vehicle, and criminal informations were filed against all three men.

A status hearing was held on March 29, 1988, and trial was scheduled for May 4, 1988 at 9:00 a.m. At 8:20 a.m. on the trial date, however, a female friend of Swisher telephoned the Pretrial Services Agency (PSA) and stated that Swisher would be unable to appear on that date because he was in West Virginia on family business, the exact nature of which she did not know. The PSA reported the contact to the trial Judge, who issued a bench warrant for Swisher's arrest.

The following day, at about 1:00 p.m., Swisher came to the PSA office and requested assistance in resolving the matter. He explained that his grandfather had died the previous week and that he had been obliged to return to West Virginia because of "family problems." The PSA reported these events to the Judge, and Swisher was directed to the courtroom.

The Judge called the case, apparently for the purpose of resolving what should be done about the outstanding bench warrant. *fn1 By coincidence, Christian Camenisch, Esq., Swisher's counsel in the underlying drug case, was also representing one Maurice K. Gaston, the individual who was then on trial before the same Judge. Mr. Camenisch was thus able to note his appearance on Swisher's behalf when the latter's case was called.

The Judge stated for the record that a bench warrant had been issued. For the benefit of counsel, he summarized the two PSA memoranda. He stated, and the prosecutor confirmed, that the prosecution had been ready for trial the previous day, and that the government had incurred the expense of bringing its witnesses to court. The Judge invited Mr. Camenisch to comment on Swisher's behalf.

Mr. Camenisch told the Judge that he had not had the opportunity to speak with Mr. Swisher or to "delve into the circumstances of absence." He noted, however, that both he and the Judge had been in trial in the Gaston case on the previous day, that Swisher's case could not have gone to trial, and that there was therefore no "real prejudice" to the government. *fn2 He asked the Judge to quash the bench warrant and to set a new trial date. The prosecutor agreed with defense counsel's proposal, but argued that Swisher's failure to appear demonstrated that he was unreliable, *fn3 and asked that the defendant be "held" pending trial.

Although it is readily apparent from the foregoing recitation that both counsel were treating the proceeding as one relating to the resolution of the bench warrant and possible modification of conditions of release, the case suddenly took on a different dimension:

THE COURT: All right, Mr. Swisher, is there anything you want to say? Bear in mind, of course, that anything you say can be used against you.

MR. SWISHER: Yes, sir. I had to go home, because my grandfather died and it was an expense to you, and it was a great expense to me to lose my grandfather. And, I wanted to go home and see him one last time before he was put in the ground.

THE COURT: Well, unfortunately sir, when--

MR. SWISHER: And, I was not able to make it because my family was just falling apart. And, I just had to be there. I tried to get hold of Mr. Camenisch here, and his line's been busy, and I had my friends down here try, and I've tried from home, and the line's been busy until 12:00 at night.

THE COURT: Unfortunately sir, when you have a criminal case pending, it has to take priority over everything else.

I believe that the defendant's non-appearance, willful contempt of court in the presence of the court, and accordingly we will add Count D, Contempt of Court. And I find the Defendant guilty of Contempt of Court.

I'll hear from you, Mr. Camenisch, before I sentence him.

As we have noted at the outset, the adjudication was the first indication from anyone that a contempt proceeding was being held.

Following the Judge's finding, Mr. Camenisch again referred to his client's grandfather's funeral, and stated that "I don't think he was acting in any intentionally contemptuous way." The Judge responded that

I've already found that he was. [ *fn4] I'm talking about sentencing at this point.

When the Judge invited counsel to allocute with respect to the sentence, Mr. Camenisch once again protested the procedure which had been utilized:

MR. CAMENISCH: Well, your Honor, I feel that I've been put at a great disadvantage. You're calling this case, and then the Court finding my client guilty, when I really haven't even had a chance to advise him not to speak up and all that, and I just think it's not right, and I feel like, rather than go forward like that, he should say nothing under the circumstances, and I just think that I've been put in a very bad position here.

THE COURT: All right. So, you have nothing to say?

MR. CAMENISCH: Well, Your Honor, I really didn't have an opportunity to consult with him prior to calling this case.

THE COURT: That, of course, is also another risk-- [ *fn5

Mr. Camenisch then briefly allocuted on Swisher's behalf. Invited by the Judge to speak for the government, the prosecutor deferred to the discretion of the court. Asked if he wished to say anything, Swisher stated

No, I'm very sorry that I missed it, and I will never do it again.

The Judge sentenced him to five days in jail. *fn6 This ...


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