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05/22/92 KEVIN A. BECKHAM v. UNITED STATES

May 22, 1992

KEVIN A. BECKHAM, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Farrell and King, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge : In this appeal from appellant's adjudication of criminal contempt for violating a condition of pretrial release, we are obliged to reverse because the trial Judge denied appellant the constitutional right to testify in his own behalf under oath.

I.

Appellant was arrested on May 30, 1989, for unlawfully possessing cocaine with intent to distribute (D.C. Code § 33-541(a)(1) (1988)). The following day, the court released him on his personal recognizance pending trial. On June 28, 1989, appellant pled not guilty to the indictment charging the cocaine offense, and the court again ordered his release but imposed the condition that he refrain from illegal drug use and submit to weekly urine testing at the Adult Drug Detection Unit of the Pretrial Services Agency. Appellant submitted as required, testing negative for controlled substances on June 28, July 5, and July 12, 1989. *fn1 But tests conducted on samples collected on July 19 and July 26 showed him positive for cocaine.

At an informal status hearing held on July 28, appellant, in response to questions from the court, denied having ingested cocaine willfully. Admitting that he had been present recently in a room where others were smoking crack cocaine, he maintained through counsel that the positive tests might have resulted from passive inhalation of second-hand smoke. *fn2 The Judge regarded skeptically appellant's assertion that he had remained in the room while others -- but not he -- had smoked crack cocaine, *fn3 and strongly implied that she could not credit his explanation without proof that a detectable quantity of cocaine could be ingested passively. *fn4 Appellant persisted in his denial, however. Accordingly, the Judge scheduled a formal hearing under Rule 42(b), Superior Court Rules of Criminal Procedure, to determine whether he should be held in contempt for violating a condition of pretrial release. D.C. Code § 23-1329 (c) (1989); see also D.C. Code § 11-944 (a) (Supp. 1991) (court may punish for disobedience of an order). Altogether, appellant's utterances at the status hearing consisted of fifteen words, unsworn, in response to three questions by the court. *fn5

The court held the contempt hearing on September 22, 1988, without a jury. The government called the supervisor of the Adult Drug Detection Unit, who confirmed that appellant had tested positive for cocaine on the two occasions in July, and described the procedures used to ensure an unbroken chain of custody and accurate testing of samples. On cross-examination, appellant's counsel attempted at length to impeach the reliability of the testing, inquiring further into the overall probability of error, as well as the possibility of mishandling of samples, miscalibration, false positives, and the like. *fn6 Counsel then told the court that he intended to call appellant as a witness and that appellant would deny having used cocaine, as well as explain "that on one occasion before his first test he was in a room, a small room that was closed with somebody else who was smoking cocaine." The court responded:

I would note that he has already said those things. It was not under oath. I am sure he would say the same thing under oath. I don't need to hear it again. I will certainly accept the fact that that would be his testimony.

When counsel protested that he "would prefer to put on the stand" so that the court could "Judge his demeanor," the Judge remarked, with reference to the earlier status hearing, "Counsel, I Judged his demeanor when I set up this hearing." The Judge then adverted to the "concrete scientific proof" establishing the violation in the form of two successive positive tests. *fn7 Counsel replied that he still maintained that the results were in error or the result of passive inhalation, "and since the standard here is beyond a reasonable doubt . . . I would want Mr. Beckham to testify so you can Judge his demeanor." The court essentially concluded the matter by stating:

Counsel, as I said he is going to do nothing but say under oath what he has previously said to the court. I Judged his demeanor on that occasion. And the fact is I didn't believe him. I verbalized it. But I said I would leave him on the street, give him every possibility, and I would have this hearing. I have sat here for an hour now listening to testimony, keeping in mind every word. . . . I have a perfect recollection of his testimony or statements to the court [at the status hearing]. And I believe that the defendant's statement to me not under oath is no different than his statement to me [would be] under oath in the sense that as far as the court is concerned he was addressing the court, and I would not expect him to say anything differently. And based on what you are telling me your proffer is that he won't. And I have Judged his demeanor. I don't believe him. I accept the scientific proof of these tests. . . . I didn't believe him then and I see nothing that's going to change that. I mean I think the law is decided in this issue and this court believes that this defendant has misrepresented and lied to this court, in addition to using drugs.

Having found that appellant used cocaine willfully in violation of a condition of release, the court adJudged him in criminal contempt and, after argument by counsel, sentenced him to imprisonment for two days.

II.

As this court explained in In re Wiggins , 359 A.2d 579 (D.C. 1976), "A criminal contempt proceeding is not a criminal prosecution, and consequently not all procedures required in a criminal trial are necessary in a hearing on a charge of contempt." Id. at 580 & n.4 (citing, inter alia, Myers v. United States , 264 U.S. 95, 103-05, 68 L. Ed. 577, 44 S. Ct. 272 (1924)). But, as we also recognized in Wiggins , the Supreme Court has made clear that, as a matter of fundamental due process, the defendant in a proceeding for criminal contempt alleged to have been committed outside the presence of the court is entitled to a broad array of procedural protections, including "the right to offer testimony and to call witnesses on one's own behalf." Id . at 581 n.5 (emphasis added) (citing In re Oliver , 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948)). In Oliver the Court had declared:

Except for a narrowly limited category of contempts, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify ...


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