March 31, 1994
IN RE: L.G., APPELLANT
Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge)
Before Farrell, Wagner, and King, Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: L.G., a juvenile, appeals from an order of the Superior Court summarily adjudging him in contempt of court for using profanity on three occasions while appearing as a witness for the defense in a criminal trial. L.G. principally contends that the finding of contempt is not supported by the evidence. We agree and, accordingly, we reverse and order that the contempt charge be dismissed.
On November 16, 1992, sixteen-year-old L.G. testified for the defense at the murder trial of his uncle, who was an adult. *fn1 During cross-examination, the prosecutor attempted to establish that the uncle was directly involved in the murder and that L.G. had lied in his direct examination to protect the uncle. The first use of profanity occurred after the prosecutor asked L.G. about his initial confrontation with the deceased:
THE GOVERNMENT: But you are [L.G.]. Right?
L.G.: Yes, I am [L.G.].
THE GOVERNMENT: And you always got your weapon with you. Right[?]
L.G.: It was in the car at the time.
THE GOVERNMENT: You just told [defense counsel] a few minutes ago, you always have your gun with you. Right? You said --
L.G.: I said it was in the car, motherfucker. Don't be coming hollering at me like that, man.
Judge Ryan said nothing to L.G., and the prosecutor continued her questioning.
The second incident occurred, some twelve pages later in the transcript, as the prosecutor pressed L.G. on the inconsistencies in his account compared with his uncle's testimony:
THE GOVERNMENT: My question is, sir, is if your uncle said that the two of you went inside, came out and sat on these railings, that's not true. Is that correct?
L.G.: That's what I am saying. Not true.
THE GOVERNMENT: So, if your uncle said that [the deceased] was minding his own business and walked out of this building, didn't say a thing to anybody, didn't pull a weapon on anybody, and just walked out of here and then you jumped off the steps and started shooting at him while your uncle is sitting right there, that's not true. Is that what you are saying?
L.G.: Hold on, man. You got to slow the fuck down. I don't know what the fuck you are saying.
At this point, the Judge admonished L.G.: "Listen. You may be a juvenile but you are in an adult court. You are going to be held to adult standards here." L.G.'s testimony ended shortly thereafter without further incident.
As L.G. was walking away from the witness stand, however, he passed close to the prosecutor, allegedly calling her a "stinking bitch." That remark was heard by the prosecutor and was recorded by the court reporter; however, Judge Ryan did not hear it. The prosecutor immediately informed the Judge who then held a bench conference with the prosecutor and the attorney for L.G.'s uncle. Judge Ryan informed the two attorneys of his intention to hold L.G. in criminal contempt and asked the prosecutor to provide him with authority for a contempt order. The next day the prosecutor filed a motion seeking an order requiring L.G. to show cause why he should not be held in contempt.
On November 18, 1992, two days after L.G.'s testimony at trial, L.G. appeared in court with his own counsel, and judge Ryan conducted a summary contempt proceeding. The trial Judge remarked:
The points, I think, have been outlined in the motion papers that have been submitted to me by the U.S. Attorney. But I personally certify, I recall and I heard him say, he used the word fuck several times in his testimony. I have to admit I didn't hear the stinking bitch remark. I didn't personally. But from what I heard personally, I think he committed contempt in open court.
L.G. was then sentenced. *fn2 On November 19, 1992, the trial Judge issued a written certification order, which provided:
I, Judge Joseph M.F. Ryan, hereby certify, pursuant to S.C. Criminal Rule 42 (a) concerning summary contempt findings, that the following conduct occurred in my courtroom on November 16, 1992:
Juvenile [L.G.] appeared as a witness to testify on behalf of his uncle . . . at [the uncle's] trial for premeditated murder. [L.G.] had been previously convicted of the same crime in a separate juvenile proceeding.
[L.G.] appeared agitated throughout his testimony. The word "fuck" and its many derivatives peppered [L.G.'s] description of the events surrounding the murder. I admonished [L.G.] that he was in an adult court and needed to behave accordingly. He continued to use outrageous language, calling the prosecutor a "motherfucker".
The court reporter, the United States Marshall, and Assistant United States Attorney . . . all reported that [L.G.] also called [the prosecutor] a "stinking bitch". Although I did not hear this comment, [L.G.'s] behavior and comments give me no reason to doubt that he also made this remark.
A Judge of the Superior Court "may punish for disobedience of an order or for contempt committed in the presence of the court." D.C. Code § 11-944 (1989). Criminal contempt against a juvenile may be imposed summarily "if the Judge certifies that he [or she] saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court." Super. Ct. Juv. R. 42 (a). *fn3 In a summary contempt proceeding, the trial Judge must set forth "with particularity," in a written certification, the grounds for the contempt finding. In re Gorfkle, 444 A.2d 934, 939 (D.C. 1982). On appeal, this court examines "the evidence underlying these . . . reasons to ascertain what conduct constituted the contempt." In re Kraut, 580 A.2d 1305, 1312 (D.C. 1990) (internal quotation and citation omitted).
Judge Ryan relied on three separate grounds, italicized above, for summarily adjudging L.G. in contempt: (1) peppering his testimony with the word "fuck" and derivative forms of that word; (2) using outrageous language and calling the prosecutor a "motherfucker" after he had been admonished by the trial Judge; and (3) calling the prosecutor a "stinking bitch" after leaving the witness stand. It may be that each use of profanity standing alone would constitute summary contempt if heard by the Judge and committed in the court's presence, *fn4 and for our purposes we will assume, without deciding, that each does. *fn5 Here, however, the government concedes that the second ground -- that L.G. "continued to use outrageous language" and called the prosecutor a "motherfucker" in disobedience of the trial Judge's admonition -- lacks evidentiary support. *fn6 The government also concedes that the trial Judge could not proceed by summary contempt on the third ground because he did not hear the remark. *fn7 Therefore, we must decide whether a summary contempt citation, based on three separate grounds, can be supported if there is evidentiary support for only one of them. We conclude on the facts of this case that it cannot.
In Kraut, supra, 580 A.2d at 1309-10, 1312 n.6, an attorney was summarily convicted in a single count of criminal contempt, based on three separate grounds. This court, holding that one of the grounds was not supported by sufficient evidence, reversed:
Our review . . . must be based on the grounds actually cited by the court in its Rule 42 (a) statement. [The trial Judge's] written statement indicated that there were three grounds which cumulatively "rose to the level of criminal contempt." We would not be warranted in inferring the Judge . . . considered [the attorney] in contempt for fewer than these three. Had he wished to hold [the attorney] in contempt based only on one or two of the grounds, his written statement -- essentially defining the elements of the crime for this case -- should have so indicated. We cannot substitute our own judgment to find [the attorney] in contempt of the trial court for reasons not clearly articulated by the trial court, even if the evidence would support such a finding.
Id. at 1313-14 (citations omitted). Thus, reversal was required because the evidence did not support the ruling with respect to one of the grounds. Id. at 1314.
In the instant case, Judge Ryan ruled, in the written certification, that the contempt was based upon "the following conduct occurred in my courtroom on November 16, 1992." The three separate grounds noted above were then set forth. Further, during the contempt hearing the trial Judge remarked that he was finding L.G. in contempt based upon "what heard personally . . . in open court." In neither the written certification nor the oral ruling did Judge Ryan give any indication that he was ruling that each use of profanity, standing alone, constituted a separate and distinct contemptuous act. Although Judge Ryan did not declare in the written order that the three uses of profanity "cumulatively 'rose to the level of criminal contempt,'" as did the trial Judge in Kraut, id. at 1313, we think it clear from the written order and his oral remarks that Judge Ryan considered the three incidents together to constitute a single count of contempt, i.e., a "critical mass" of contemptuous behavior. Cf. Smithsonian v. Department of Employment Servs., 514 A.2d 1191, 1194 (D.C. 1986). As we observed in Kraut, had Judge Ryan wished to hold L.G. "in contempt based only on one or two of the grounds . . . should have so indicated." Kraut, supra, 580 A.2d at 1314. In short, "we cannot substitute our own judgment to find [L.G.] in contempt of the trial court for reasons not clearly articulated by the trial court." Id. Therefore, because there is sufficient evidentiary support for only one of the grounds relied upon, and since the summary contempt adjudication was based upon a finding on all three of the grounds considered, the contempt conviction cannot stand. Accordingly, we reverse and order that the charge be dismissed. *fn8