Appeal from the Superior Court of the District of Columbia; (Hon. Kaye K. Christian, Trial Judge)
Before King and Sullivan, Associate Judges, and Mack, Senior Judge. Opinion for the court Per Curiam. Concurring opinion by Associate Judge King.
The opinion of the court was delivered by: Per Curiam
Opinion for the court PER CURIAM.
Concurring opinion by Associate Judge KING at p. 10.
PER CURIAM: A trial Judge summarily found appellant guilty of criminal contempt under Super. Ct. Crim. R. 42 (a) (1993), citing appellant's "overall disruptive behavior" in the morning while he was waiting in the courtroom for his traffic case to be called, his "state of stupor" throughout the day, and, his repeated attempts "to verbally interrupt the court" when he was called before it in the afternoon. The court sentenced appellant to 30 days in jail. See Court's Order, Appendix, (infra).
On appeal, appellant contends that the evidence did not show his behavior to be sufficiently willful or disruptive to support a finding of criminal contempt, and, that the summary conviction and sentencing violated his due process rights because the court's authority was not so threatened by appellant's alleged contemptuous behavior as to warrant immediate vindication. We agree with appellant that his behavior was not criminally contemptuous, and, that, even if it was, summary proceeding was not appropriate here. *fn1 Accordingly, because appellant has already served his 30 day sentence, we reverse appellant's contempt conviction and order the proceedings dismissed as "just in the circumstances." D.C. Code § 17-306 (1989). *fn2
On August 17, 1992, appellant reported for trial on a charge of operating a vehicle while under the influence of drugs. D.C Code § 40-716 (b) (1) (1990 Repl.). He sat in the public section of the courtroom, unaccompanied by his lawyer, during the morning calendar call. During this time, the Judge observed appellant to "nod out" in his seat and, on three or four occasions, to stumble over other people as he entered and exited his row. [Order of Contempt, at 1-2]
Upon observing appellant's disruptive behavior, the court attempted repeatedly to locate appellant's trial counsel. In the meantime the court concluded that appellant's conduct was "so disruptive that the court could not carry out its normal functions," and the court ordered appellant "stepped back" by the U.S. Marshal Service. *fn3 [Order at 2]
The record shows that when appellant's trial counsel was located appellant's traffic case was called before the court. The court informed appellant's counsel of appellant's disruptive behavior and stated that it was "going to order down for testing now and then the Court will make a determination whether to summarily hold him in contempt." *fn4
Appellant's case was called again later that morning. The court immediately asked for the results of appellant's drug test and was informed that appellant had been unable to provide a urine sample. Appellant was then returned to the custody of the U.S. Marshal to complete the drug test. According to the record it was at that time that the Judge advised the prosecution to release its witnesses because the appellant was in "no condition" to go to trial that day. Later that afternoon, when the drug test was complete, appellant's traffic case was again called before the court.
The court noted its receipt of appellant's positive test results. After inviting appellant's attorney, and the Assistant Corporation Counsel prosecuting the traffic offense, to speak to the court's concern over appellant's disruptive courtroom conduct and the issue of criminal contempt, *fn5 the court summarily found appellant in criminal contempt. *fn6
The elements of criminal contempt are "(1) willful disobedience; (2) of a court order; and (3) causing an obstruction of the orderly administration of Justice." In re Thompson, 454 A.2d 1324, 1326 (D.C. 1982) (per curiam). Each element must be proved beyond a reasonable doubt. In re Gorfkle, 444 A.2d 934, 939 (D.C. 1982). "The offense requires both a contemptuous act and a wrongful state of mind." Swisher v. United States, 572 A.2d 85, 89 (D.C. 1990) (citing Gorfkle, supra, 444 A.2d at 939-40). A mere finding of improper conduct is not sufficient, rather we must find a "willful attempt [by the contemnor] to show disrespect for the court or to disrupt the proceedings." Gorfkle, supra, 444 A.2d at 940 (footnote omitted).
We review an appellant's contemptuous acts "in light of the surrounding circumstances." In re Ellis, 264 A.2d 300, 301 (D.C. 1970). If the evidence shows that by his or her conduct an appellant "'overstepped the bounds of propriety and refused to heed the admonitions of the court or' . . . 'a lawful order of the court,'" id. (emphasis in original) (quoting Jones v. United States, 80 U.S. App. D.C. 109, 110, 151 F.2d 289, 290 (1945)), he or she will be found to have committed contempt.
Appellant argues that there is insufficient evidence to establish his "willful disobedience." See Thompson, supra, 454 A.2d at 1326. *fn7 We note that the court, in its Order of Contempt, see Appendix, does not attribute willfulness to any of appellant's disruptive behavior in the courtroom while he awaited the calling of his case. Nor is there evidence in the court's findings, or in the transcript of the proceedings, to indicate that the court issued any order with which appellant refused to comply. Compare, e.g., Irby v. United States, 342 A.2d 33, 41 (D.C. 1975) (refusal to heed admonitions of the court summarily adjudicated as contemptuous). *fn8 Notably, there is no evidence that the court directly addressed appellant at the time of his disruptive behavior and prior to having him "stepped back."
Viewing the evidence, as we must, in the light most favorable to the government, Irick v. United States, 565 A.2d 26, 30 (D.C. 1989), and recognizing that the trial Judge's findings cannot be disturbed unless they are shown to be without evidentiary support or plainly wrong, Browner v. District of Columbia, 549 A.2d 1107, 1114 (D.C. 1988); D.C. Code § 17-305 (a) (1989), we nevertheless conclude that there ...