Appeal from the Superior Court of the District of Columbia (IF-382-01) (Hon. Brook Hedge, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before REID and FISHER, Associate Judges, and FERREN, Senior Judge.
This is an appeal from an adjudication of criminal contempt for violation of a civil protection order (CPO). Because neither the terms of the CPO nor the trial court gave sufficient notice to appellant, Maurice Jones, about how to conduct himself in the courtroom, where literal compliance with the CPO was impossible, we must reverse and remand for entry of a judgment of acquittal.
In February 2001, appellee Wanda Clark filed a petition for a CPO in the Superior Court, alleging that Jones, the father of one of her children, had committed acts of violence against her in the preceding five years. The following month, the parties came to court where Jones, appearing pro se, agreed to the terms of a CPO without any admission of guilt.
The first provision of the CPO prohibited Jones from "assault[ing], threaten[ing], harass[ing], or physically abus[ing] Petitioner or her children in any manner . . . ." The second provision -- the "stay away provision" -- mandated that Jones must "stay at least 100 feet away from Petitioner's person, home, workplace, vehicle, other: [names of the three children]." Finally, the "no contact provision" prohibited Jones from contacting Clark "in any manner, including but not limited to: by telephone; in writing; in any other manner, either directly or indirectly through a third party . . . ." On at least three occasions the court asked Jones whether he understood the ramifications and consequences of entering the CPO, and each time he replied that he did.
Additionally, just before entering the CPO, the trial court explained its provisions to Jones:
Now, under the order, you may not assault, threaten, harass or physically abuse the Petitioner or her children in any way. You have to stay at least 100 feet from her, her home, her work place, her car and from [the children], and . . . you may not contact Petitioner in any fashion, not by telephone, in writing or indirectly through another individual.
Jones asked the court whether Clark would be able to "make up violations" against him, to which the court replied that she would not. The trial court then asked Jones whether the order was satisfactory to him. He replied that it was. The court entered the CPO and, addressing Clark, her two law student counsel, and Jones, said: "Please step forward for your copy of the order. And then if you'll remain in the courtroom, you can talk with Mr. Johnson," an Assistant Attorney General, about matters of paternity and child support. All four parties came forward.
Immediately after the parties left the well of the courtroom, one of Clark's counsel returned to the bench with the following allegation: "My client has just told me that the respondent just walked by her and said to her that she should 'watch it.' I'm just very concerned about the fact that a threat has just been made in the immediate aftermath of the Court issuing a CPO . . . ." Through counsel, Clark filed a Motion to Adjudicate Criminal Contempt and served it on Jones.
The following month, trial was conducted pursuant to Super. Ct. Crim. R. 42 (b) (Disposition upon notice and hearing) before the same judge to determine whether Jones's actions amounted to criminal contempt. Clark testified that, as she left the well, Jones frowned and told her to "watch it." Clark interpreted the words "as a threat" because of his history of assaulting her.
Next, Toki Rehder, a law student who had been present at the CPO hearing, testified on Clark's behalf. Rehder testified that during the CPO hearing Jones had "seemed very anxious" and "tensed." As Jones left the well, she heard him say "'watch out,' under his breath." She also interpreted the words as a threat to Clark, because of "his demeanor during the CPO hearing" and because Rehder "didn't see who else it could be directed against."
For the defense, Peter Maignan, a lawyer who had been in the courtroom during the CPO hearing, was Jones's only witness. According to Maignan, although Jones did say "whoa" or "watch out" to Clark, it was not in a threatening manner. Rather, as Maignan perceived the situation, Clark had turned abruptly into the first row of seats in front of the well of the courtroom where her attorney was seated, and "it appeared that [Jones] was simply trying to slow down and avoid running into the petitioner as she made that sharp right hand turn." Clark's counsel then called her to testify again, and she acknowledged that she had stopped suddenly and turned into the first ...