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June 26, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Stephen F. Eilperin, Trial Judge

Rogers, Chief Judge, and Newman and Ferren, Associates Judges. Opinion for the court by Associate Judge Ferren. Concurring opinion by Associate Judge Newman.

The opinion of the court was delivered by: Ferren

Appellant -- on trial for violating the Bail Reform Act (BRA), D.C. Code § 23-1327 (1989) -- was found guilty of criminal contempt for arriving in court one hour and fifty minutes late for the second day of this trial. *fn1 Appellant contends there was insufficient evidence to support the court's finding that he willfully disregarded his duty to appear on time. Because the basis for the trial court's ruling is not clear enough for our review, we remand the record for more specific findings of fact and Conclusions of law based on the hearing already completed. *fn2


After the first day of trial, the deputy marshal told appellant he must appear the next day at 10:00 a.m. When court convened the next day, appellant was not present. His counsel said she did not know where he was and rested a twenty-four hour continuance to try to contact him. Instead, the court passed the case until 2:00 that afternoon. When court resumed, the court noted that appellant had appeared at 11:50 a.m. The court then scheduled a hearing the next day for appellant to show cause why he should not be held in contempt for his tardiness. At the close of the day's proceedings, the court decided to hold appellant without bond pending completion of the trial.

The BRA case was submitted to the jury the next day, and, thereafter, the court promptly conducted a contempt proceeding pursuant to Super. Ct. Crim. R. 42 (b). *fn3 At the hearing, appellant testified without contradiction that on April 20, the night before his second day of trial, he slept at a friend's house. *fn4 He said that there was no telephone or alarm clock in the house and that he did not wear a watch. He stated that he did not inform the others in the house that he needed to get up at a particular time because he did not want anyone to know that he had to be in court. He further testified that he went to bed at 10:30 that night, that he had not slept much the night before, and that he woke up at 10:30 in the morning on the day he was late to court.

Appellant then testified that when he awoke, he looked for a phone number on the paper the court had given him but found none. He also testified that he did not have the money to make a phone call from a phone booth but, had he known what number to call, he would have called from a friend's house. He added that he saw his cousin driving up the street and asked him for a ride. His cousin was in a rush and would not provide the ride, but he did give appellant a dollar to take the bus. Appellant then got on the bus and, according to his testimony, came directly to court. Appellant testified that he did not intend to delay the trial or to cause the court any inconvenience.

At the close of appellant's testimony, his counsel argued that there was no evidence of the willful intent needed to sustain a conviction for criminal contempt. The court responded by stating:

I think the one sort of case the Defendant should make sure he appears on time is for a case where he's charged with failure to appear.

It's absolutely plain that the Defendant was warned to be in court, was told to be in court, was told to be in court at ten o'clock. He testified that he fully understood what that meant, that he was to be back here at ten o'clock in court for his trial and he didn't make it, showed up some two hours late.

The fact that he just overslept does not excuse his actions. That's a wilful failure to appear. He's responsible to get up. He didn't make any effort to have himself here at ten o'clock. Ten o'clock certainly isn't the break of day. He certainly was able to get here.

I find beyond a reasonable doubt that Mr. Williams is in wilful disobedience of this Court in hindering the administration of Justice in showing up two hours late for his failure to appear trial.

In sentencing appellant to sixty days for his tardiness, the court added:

It seems to me that when you're on trial for failure to appear the one thing you should be absolutely clear on is you make your court appointments and you make your court appointments promptly.

And it just seems outrageous that when you're on trial for failure to appear that you don't show this Court the courtesy of coming in on time. You caused delay here. We had fourteen jurors waiting. My morning calendar just couldn't proceed without you, and I think a sixty day penalty is appropriate in these circumstances. *fn5


In order to hold a defendant in contempt for appearing late, a court must find that the defendant behaved with willful, deliberate, or reckless disregard of the obligation to appear on time. In re Kirk, 413 A.2d 928, 930 (D.C. 1980); In re Denney, 377 A.2d 1360, 1363 (D.C. 1977); Sykes v. United States, 144 U.S. App. D.C. 53, 55, 444 F.2d 928, 930 (1971). We may set aside the trial court's judgment only if there is an error of law or if the judgment is plainly wrong or without evidence to support it. D.C. Code § 17-305 (a) (1989); see also In re Thompson, 454 A.2d 1322, 1323 (D.C. 1982).


Our decisions addressing findings of contempt for tardy court appearances have almost all concerned attorneys who were late to court because of scheduling conflicts. *fn6 Our only contempt case that involves oversleeping is In re Marshall, 549 A.2d 311 (D.C. 1988). In Marshall, the appellant was an attorney who awakened at 1:00 p.m. feeling nauseous and dizzy on a day he had been scheduled to appear in court. He called the court, spoke with the courtroom clerk, and rescheduled his appearance. In a previous case in which Marshall had appeared before the same Judge, he had been late twice, once because he overslept. After a hearing, the trial court found Marshall in contempt, inferring the requisite willfulness "from Marshall's recklessness in not having an alarm clock and from his history of missing several scheduled court appearances in the past." Id. at 312. We affirmed the conviction.

The government argues that Marshall is applicable in these same two respects: like attorney Marshall, appellant failed to take step -- not even "the very ordinary precaution of setting an alarm" -- to ensure that he would be able to get to court on time; and also, like Marshall, appellant had a prior history of either tardy or missed court appearances. These arguments ignore important distinctions between the two cases. As to appellant's alleged failure to take necessary steps to be in court on time, appellant presented evidence explaining his lateness which, if credited, *fn7 the court may or may not have considered reckless behavior. For example, as far as we can tell, appellant's failure to set an alarm was not a conscious decision, as it was in Marshall, see id. at 314. Rather appellant, who apparently did not own an alarm clock (or watch), testified that he searched unsuccessfully for an alarm clock in the friend's house where he was sleeping. Accordingly, appellant's failure to set an alarm may be attributable to a lack of resources, not necessarily to recklessness.

As to appellant's alleged history of tardy or missed court appearances, this was the first time appellant had been late for his trial or for any other proceeding before this Judge, in contrast with the situation in Marshall. Nor did appellant have any prior conviction for failure to appear. *fn8 As for the government's contention that the court properly considered "the fact that appellant's tardy appearance occurred in the middle of a trial for failure to appear," it is questionable whether there was sufficient similarity between the facts underlying the BRA charge (where defendant failed to appear at all and was brought in six days later on a bench warrant) and the allegedly contemptuous incident (where appellant overslept and appeared voluntarily less than two hours later) to establish that the lateness was part of a pattern. Marshall, therefore, is not dispositive here.

We cannot agree, however, with appellant's argument that his conviction is reversible as a matter of law for insufficient evidence. The court may well have believed, for example, that appellant's failure to ask anyone to wake him up constituted reckless disregard of his duty to appear in court at 10:00 a.m. It is not readily apparent why appellant, knowing he did not have an alarm, should not have asked for help, with or without revealing why he needed to get up by a particular time. We therefore perceive at least one possible basis, supported by the evidence, for ruling that appellant recklessly disregarded his duty to appear in court.


But, there is a problem. Because of the brief manner in which the trial court responded to appellant's testimony, we cannot determine with any certainty which of appellant's acts or omissions formed the basis for the court's finding of willfulness. Although there may be a sound basis for the court's decision, there are other possible bases -- on which the trial court may have relied -- that would be legally insufficient for a contempt ruling. For example, in finding "wilful failure to appear" from the fact that appellant "just overslept" and "didn't make any effort to have himself here at ten o'clock," the court may have been focusing solely on appellant's failure, as in Marshall, to set an alarm -- an insufficient basis for finding willfulness on the record here. If this were the court's reasoning, the contempt ruling would be "without evidence to support it." D.C. Code § 17-305 (a) (1989).

On the other hand, and more significantly, the trial court may have committed an "error[] of law." Id. At oral argument on appeal, the government argued, by analogy to BRA cases, that the fact appellant had received proper notice but failed to appear on time suggests in itself a reasonable inference that appellant acted willfully. See D.C. Code § 23-1327 (b) (1989) ("Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is willful."); Raymond v. United States, 396 A.2d 975 (D.C. 1979). Even if we assume, however, that in a criminal contempt case the trial court may draw an inference of willfulness solely from a failure to appear after notice, see Swisher v. United States, 572 A.2d 85, 89 n.9 (D.C. 1990), this inference may not be converted to a conclusive presumption; the defendant must have an opportunity to rebut. See id. at 92 (when trial Judge cannot ascertain all relevant facts "through his or her own senses, the contemnor must be afforded a reasonable opportunity to explain his [or her] absence"); cf. Raymond, 396 A.2d at 977-78 (BRA does not shift burden of proof or create presumption of willfulness but merely creates permissible inference).

If a defendant's testimony tends to rebut the inference of willfulness, we believe the trial court must address that testimony before holding the defendant in contempt; otherwise, the record will not reflect why the defendant's rebuttal was insufficient. Here, appellant testified that he bad looked for an alarm clock in the house in which he was staying, but had not found one, and that he had gone to bed at 10:30 p.m., a relatively early hour. He testified further that, upon discovering he had overslept, he looked for the court's phone number on the court papers and then immediately attempted to obtain transportation to the court. While, even if credited, this testimony does not necessarily preclude a finding of recklessness or willfulness, it does tend to rebut any initial adverse inference created by the failure to appear and, effectively, to shift the burden of production back onto the trial court-complainant. In order to find appellant's lateness willful beyond a reasonable doubt, therefore, the court should have either discredited appellant's testimony explicitly or credited some or all of appellant's testimony while pointing to specific acts or omissions justifying a finding of willfulness or recklessness.

Given the meager record before us, however, we are concerned that the trial court instead may have conclusively presumed willfulness from failure to appear after notice. The court found that appellant had notice ("It's absolutely plain that the Defendant was warned to be in court, was told to be in court, told to be in court at ten o'clock. He testified that he fully understood what that meant. . . ."). The court further found that appellant had failed to appear punctually ("he was to be back here at ten o'clock in court for his trial and he didn't make it, showed up some two hours late"). The court then summarily ruled that appellant had acted willfully. ("The fact that he just overslept does not excuse his actions. That's a wilful failure to appear."). This ruling suggests that the court either (1) equated appellant's oversleeping with willfulness -- a Conclusion that would be far from self-evident on this record -- or (2) ignored appellant's testimony altogether because the court believed it could conclusively presume willfulness from failure to appear. The first possibility affords inadequate explanation; the second possibility is legally untenable.

We acknowledge that, until today, our caselaw has not imposed an obligation on trial courts to make specific findings of fact in all non-summary criminal contempt cases tried before the Judge who initiated the contempt proceedings. *fn9 Indeed, in most criminal cases tried without a jury, the trial court is required to make specific findings of fact only upon request. Super. Ct. Crim. R. 23 (c) provides in relevant part:

Trial without a jury. In a case tried without a jury the Court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially. Such findings may be oral.

As this case and others demonstrate, however, a lack of specific trial court findings can prevent an appellate court from effectively reviewing the verdict, and thus may warrant a remand for more specific findings despite court rules to the contrary. See, e.g., Staton v. United States, 466 A.2d 1245, 1253 (D.C. 1983) (remanding record for further findings on issue of voluntariness of confession, despite fact that Super. Ct. Crim. R. 47-I (g) does not require court to state findings on pretrial motion in criminal proceeding).

We are particularly concerned about those criminal contempt cases in which the same trial Judge acts not only as complainant, but also as finder of fact and judge of the law. The need for appellate review is enhanced when a trial Judge performs these ostensibly conflicting roles. Perhaps it is because of the dangers inherent in such multiple roles that the trial Judge in a summary contempt proceeding, under Rule 42 (a), not only must certify that the contemptuous conduct occurred in the "actual presence" of the court, but also must "recite the facts" in the order of contempt "signed by the Judge and entered of record." Super. Ct. Crim. R. 42 (a); see Warrick v. United States, 528 A.2d 438, 443-44 (D.C. 1987). Possibly the trial court could have conducted this case summarily under Rule 42 (a), supplying the written findings of fact required by that rule. But see Swisher, 572 A.2d at 94 (suggesting several alternatives as preferable to summary adjudication of contempt). Whether the court could have properly done so or not, we see no reason why the fact-finding requirement should be relaxed simply because the Judge chose to conduct a non-summary proceeding under Rule 42 (b) the next day. In a Rule 42 (b) proceeding, the apparent, if not actual, danger of conflicting roles will still be there when the trial court acts as prosecutor, Judge, and jury.

Because of this appearance problem, therefore, we invoke our supervisory power over the administration of criminal Justice in the District of Columbia, see In re F.G., 576 A.2d 724, slip op. at 2 & n.1 (June 26, 1990) (en banc); In re Kelley, 433 A.2d 704 (D.C. 1981) (en banc), and conclude that from now on, to assure fairness in non-summary criminal contempt cases tried by the same Judge who initiated the contempt charges, the trial court must make specific findings of fact and Conclusions of law responsive to the testimony offered, regardless of whether a request for such findings is made. Rule 23 (c) may not be invoked to sustain a more conclusory Disposition.

In sum, although the record in this case may afford a basis for finding a willful or reckless failure to appear, the trial court's summary references to appellant's testimony not only fail to assure us that the court selected a proper basis for its ruling but also suggest a serious possibility that the court chose an improper basis for holding appellant in contempt. Because we therefore cannot say whether the trial court did or did not lawfully rule, we apply our new ruling and remand the record for specific findings of fact and Conclusions of law sufficient for our review.


Without question, punctuality is essential to a functioning court system, and criminal contempt is a necessary sanction to help courts assure the orderly administration of Justice. This decision does not compromise a defendant's obligation to report to court on time Rather, it affirms the responsibility of a trial Judge in non-summary criminal contempt cases over which that Judge presides to address the testimony given and to articulate clearly the grounds for the ruling. A trial Judge may discredit the testimony of a defendant who appears late in court, even one who has never been late before, and find that the lateness was willful, deliberate, or reckless. The Judge may not, however, create a conclusive presumption of willfulness merely from the fact that there was notice to appear at a time certain and the defendant failed to do so.

NEWMAN, Associate Judge, Concurring: I have long held the view that trial Judges should make findings of fact and Conclusions of law on most, if not all, of the contested evidentiary hearings they hold. Thus, I join wholeheartedly in the rule we announce today requiring specific findings of fact and Conclusions of law in criminal contempt cases. I agree that under this new rule the trial court's findings were inadequate to support appellant's contempt conviction.

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