An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-399

NORTH CAROLINA COURT OF APPEALS

Filed:  2 January 2007

IN THE MATTER OF:
            
RODDEY M. BROWN, III,                    Pitt County
    Attorney at Law                    Nos. 05 CRS 15544-45
    Contemnor

    Appeal by contemnor from an order entered 27 September 2005 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 15 November 2006.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for the State.

    Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

    HUNTER, Judge.

    Roddey M. Brown, III (“contemnor”), appeals from an order of the trial court finding him to be in criminal contempt of court. Contemnor contends there was insufficient evidence that he acted in a willfully contemptuous manner, and argues he was denied due process of law. After careful consideration, we affirm the order of the trial court.
    On the morning of 26 September 2005, the State called several cases before the Honorable W. Russell Duke, Jr., Senior Resident Superior Court Judge of Pitt County. One of the cases called was against Jerry Brown   (See footnote 1)  (“Brown”), who was charged with violating hisprobation. Brown informed the court he did not have an attorney, but wished to have one. The trial court directed Brown to fill out a financial affidavit in order to determine his qualifications for court-appointed counsel. After Brown did so, the trial court questioned him regarding his employment status. Brown stated that he had not worked for the previous two years. The trial court noted that Brown looked “pretty healthy” and was wearing “brand new tennis shoes, designer pants” and “a Lacoste shirt.” The trial court told Brown, “You are dressed very well. And you are telling me you don't work?” Brown again denied having employment. Brown stated that his sister and his girlfriend posted his two $25,000.00 bonds, as well as a third $50,000.00 bond. The State informed the trial court that Brown was charged with several drug offenses. Upon reviewing the evidence, including Brown's clothing and general appearance, the trial court denied Brown's request for court- appointed counsel and added conditions to his bond, including house arrest. The trial court returned Brown to custody temporarily until a determination could be made regarding the availability of an ankle bracelet to be worn by Brown for electronic monitoring as an additional condition of his bond. The trial court stated, “[w]e are going to put a dope dealer out of business.”
    Approximately fifteen minutes later, the State called an unrelated case for hearing. Contemnor was the attorney for the case. Instead of addressing the case for hearing, however, contemnor stated that he had just been retained by Brown's family and began discussing the conditions set for Brown's bond. Thefollowing colloquy between contemnor and the trial court then occurred:
            [CONTEMNOR]: I'll let the record reflect that [Brown] has on a pair of tennis shoes, a pair of blue jeans--
        
            THE COURT: Mr. Brown, Mr. Brown--
        
            [CONTEMNOR]: --and a collared shirt.
        
            THE COURT: Mr. Brown.
        
            [CONTEMNOR]: I would like the record to reflect--and I--
        
            THE COURT: Mr. Brown.
        
            [CONTEMNOR]: --would like to preserve the record--
        
            THE COURT: Mr. Brown.
        
            [CONTEMNOR]: Yes, sir?
        
            THE COURT: You are out of order.
        
            [CONTEMNOR]: Your Honor, I would like to preserve the record--
        
            THE COURT: You are out of order--
        
            [CONTEMNOR]: I would like to--
        
            THE COURT: Do you want to go in the same place--
        
            [CONTEMNOR]: I would like to preserve--
        
            THE COURT: Do you want to go to the same place he is?
        
            [CONTEMNOR]: Your Honor--
        
            THE COURT: I'm going to give you one more warning. You are out of order. Say one more word and you will go to the Detention Center.
                    [CONTEMNOR]: Your Honor, may I preserve the record?
        
            THE COURT: The record_-if you had been here_is already there.
        
            [CONTEMNOR]: I was standing in here when you said the record--
        
            THE COURT: Sit down.
        
            [CONTEMNOR]: May I preserve the record?
        
            THE COURT: Sit down.
        
            [CONTEMNOR]: I may--
        
            THE COURT: Sit down, Mr. Brown, and be quiet.
        
            [CONTEMNOR]: I would like--
        
            THE COURT: Mr. Sheriff, he's in your custody.
        
            ([CONTEMNOR] is led toward the door by the bailiff.)
        
            [CONTEMNOR]: Okay. Let the record reflect that he has on a pair of blue jeans and a collared shirt.
        
            THE COURT: Come around. Come around.
        
            ([CONTEMNOR] is brought back in front of the Court.)
        
            THE COURT: The Court finds beyond a reasonable doubt that [contemnor] continued to speak, continued to basically shout at the Court after being warned and asked to be quiet and sit down. The Court finds him in willful contempt of court and fines him $500 and sentences him to 24 hours in the custody of the Sheriff of Pitt County. He's in your custody.
        
            ([CONTEMNOR] is led toward the door by the bailiff.)
                    [CONTEMNOR]: Let the record reflect that Mr. Brown is wearing blue jeans and a collared shirt.
        
            THE COURT: Come around. Come around, [Contemnor], come around.
        
            ([CONTEMNOR] is brought back in front of the Court.)
        
            THE COURT: Let the record reflect that the [contemnor], Mr. Brown, a licensed lawyer in this county, has shown further disrespect to the Court. The Court orders that he is-- finds beyond a reasonable doubt that he is in contempt of this Court and fines him another $500 and sentences him to 48 hours in jail to be served at the expiration of the first sentence. That's it. Mr. Bailiff, take him forthwith right now to the detention center. I don't want to see him.

    The trial court later entered an order finding contemnor to be in direct criminal contempt of court on two counts. Contemnor appeals.
    Contemnor first argues the evidence is insufficient to show that he acted in a willfully contemptuous manner. Contemnor contends his actions did not disrupt or interrupt the trial proceedings, and that he displayed no “willful disobedience” to the trial court. Rather, contemnor argues his actions merely constituted zealous representation of his client, Brown. We do not agree.
    “Criminal contempt . . . 'is a term applied where the judgment is in punishment of a[] [completed] act . . . tending to interfere with the administration of justice[.]'” State v. Reaves, 142 N.C. App. 629, 632, 544 S.E.2d 253, 256 (2001) (citation omitted). As such, “'criminal [contempt] proceedings are those brought topreserve the power and to vindicate the dignity of the court and to punish for disobedience of its processes or orders.'” Id. at 633, 544 S.E.2d at 256 (citation omitted). Consistent with the common law, the General Assembly has codified examples of conduct constituting criminal contempt in N.C. Gen. Stat. § 5A-11 (2005). Among such conduct is “[w]illful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.” N.C. Gen. Stat. § 5A-11(a)(2). If the conduct is committed within the sight or hearing of a presiding judicial official where proceedings are being held, it is considered direct criminal contempt and the presiding judge may punish the offender summarily pursuant to N.C. Gen. Stat. § 5A-14(a) (2005) in order to maintain the dignity and authority of the court. N.C. Gen. Stat. § 5A-13(a) (2005). Formal notice, hearing, and findings of fact are not required in such cases. In re Owens, 128 N.C. App. 577, 581, 496 S.E.2d 592, 595 (1998).
    In State v. Randell, 152 N.C. App. 469, 472, 567 S.E.2d 814, 817 (2002), this Court agreed that failing to stand when directed to do so by the trial judge constitutes criminal contempt. The Randell Court stated that:
            Courtroom decorum and function depends upon the respect shown by its officers and those in attendance. Unexcused refusals to stand creates a rift in that respect and interrupt[s] the normal proceedings of court. Those who refuse to stand, for whatever reason, must yield “to the imperative need of the community in having an established forum in which controversies between man and man andcitizen and sovereign may be decided in a calm, detached, neutral atmosphere.” Our trial court judges must be allowed to maintain order, respect and proper function in their courtrooms. Failure to stand when one is capable of doing so is indeed a contemptuous act in North Carolina.

Id. at 473, 567 S.E.2d at 817 (citation omitted).
    In the present case, the trial court made the contemporaneous finding that contemnor “continued to speak, continued to basically shout at the Court after being warned and asked to be quiet and sit down.” In its order of contempt, the trial court made numerous findings indicating that it “could not preserve order in the Court because of contemnor's disrespectful attitude and demeanor toward the Court[.]” For example, the trial court found that contemnor
        could not be reasoned with or talked to; contemnor refused to sit down after a direct order to do so; contemnor refused to be quiet after a direct order to do so; contemnor continued to interrupt the Court by shouting and speaking over the voice of the Court; and, contemnor disrupted the Court proceedings[.]

“In contempt proceedings, the trial judge's findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency.” O'Briant v. O'Briant, 313 N.C. 432, 436-37, 329 S.E.2d 370, 374 (1985) (reviewing criminal contempt proceedings).
    The evidence of record supports the trial court's findings that contemnor disrupted the trial proceedings and showed disrespect for the court's authority. Contemnor attempted to address the trial court concerning his client Brown although a different matter had been called for hearing. The trial courtrepeated contemnor's name four times before contemnor stopped speaking and answered the trial court. The trial court then warned him that he was “out of order.” Contemnor resumed speaking regarding Brown. The trial court again warned him that he was out of order. As contemnor refused to heed the trial court's warning, the trial court became more explicit, telling contemnor “I'm going to give you one more warning. You are out of order. Say one more word and you will go to the Detention Center.” Contemnor continued to speak, and then refused to sit down when told three times by the trial court to do so. Contemnor's refusal to sit down when ordered to do so, standing alone, constituted contempt of court. See Randell, 152 N.C. App. at 472, 567 S.E.2d at 817 (concluding that deliberately refusing to stand is a contemptuous act). The trial court then ordered contemnor to be taken into custody. Even after being taken into custody, however, contemnor continued to address the trial court, resulting in a second contempt finding.
    Contemnor's actions showed a clear disrespect of the trial court's authority and disrupted the trial court proceedings. During the time contemnor argued regarding his client Brown, the trial court could not address the matter that had been called for hearing. Contemnor nevertheless asserts that his actions represented zealous advocacy for his client. Contemnor's actions, however, did nothing to advance his client Brown's cause, nor did they assist his other client, whose case had actually been called to hearing at the time contemnor attempted to address the trial court regarding Brown. While attorneys are encouraged to zealouslyadvocate for their clients, Rule 3.5(a)(4)(B) of the Revised Rules of Professional Conduct of the North Carolina State Bar prohibit attorneys from “engaging in undignified or discourteous conduct that is degrading to a tribunal[.]” Rev. R. Prof. Conduct N.C. St. B. 3.5(a)(4)(B), 2006 Ann. R. (N.C.) 663, 752. The trial court did not err in finding contemnor to be in contempt.
    By his second assignment of error, contemnor argues the trial court failed to give him adequate notice of the contempt charge, and failed to give him an opportunity to respond. We find no merit to this argument.
    Pursuant to section 5A-14 of the North Carolina General Statutes, the trial court “may summarily impose measures in response to direct criminal contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt.” N.C. Gen. Stat. § 5A-14(a). The trial court “must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt.” N.C. Gen. Stat. § 5A-14(b). The Official Commentary to the statute notes that it “was intended not to provide for a hearing, or anything approaching that, in summary contempt proceedings, but merely to assure that the alleged contemnor had an opportunity to point out instances of gross mistake about who committed the contemptuous act or matters of that sort.” N.C. Gen. Stat. § 5A-14 (Official Commentary 2005); see also Owens, 128 N.C. App. at 581, 496 S.E.2dat 594 (noting that “the requirements of [section 5A-14] are meant to ensure that the individual has an opportunity to present reasons not to impose a sanction[,]” but do not “require a hearing, or anything approaching a hearing”). “Notice and a formal hearing are not required when the trial court promptly punishes acts of contempt in its presence.” Id. at 581, 496 S.E.2d at 595.     In the present case, the trial court repeatedly told contemnor that he was “out of order” and asked him whether he wished to join his client in custody. Contemnor continued to address the trial court regarding Brown. The trial court then directly warned contemnor, “You are out of order. Say one more word and you will go to the Detention Center.” Contemnor continued to argue regarding the record and his client. The trial court then told contemnor to sit down and be quiet three times. Contemnor refused to do so. The trial court finally ordered contemnor into custody, where he continued to argue, prompting the trial court to find a second count of contempt. Although the trial court never specifically used the words “contempt,” it clearly gave contemnor substantial warning that he was in danger of a contempt charge should he continue his disrespectful behavior. Contemnor's refusal to sit down and be quiet when repeatedly told to do so by the trial court constituted direct contempt. We conclude that contemnor received adequate notice of the impending contempt charge.
    Contemnor argues that he was given no opportunity to respond and present reasons as to why the trial court should not hold him in contempt. Contemnor cites several cases he contends support hisposition, including Randell, Peaches v. Payne, 139 N.C. App. 580, 533 S.E.2d 851 (2000), and State v. Verbal, 41 N.C. App. 306, 254 S.E.2d 794 (1979). In each of these cases, this Court concluded that the contemnor was not given adequate opportunity to respond to the charge of contempt. The factual situations in those cases differ significantly from the present one, however. For example, in Randell, the contemnor was a person sitting in the courtroom who failed to stand, although physically able to do so, when the bailiff called a recess. The trial judge ordered the contemnor to “'[c]ome on up, sir'” and informed him he was in custody for thirty days for contempt of court. Randell, 152 N.C. App. at 470, 567 S.E.2d at 816. The trial judge told the contemnor he would be “'glad [to] hear [you] later on.'” Id. at 471, 567 S.E.2d at 816. The contemnor was then removed from the courtroom and only later given an opportunity to respond to the charge. See id.
    In Peaches, the plaintiffs' attorney objected to several of the trial court's rulings over the course of the trial during his examination of witnesses. The trial court chided the plaintiffs' attorney for being overly argumentative. The trial court warned the attorney that, “'I don't want any questions raised about my rulings because if you do, you're going to be in [the baliff]'s custody for a while.'” Peaches, 139 N.C. App. at 582, 533 S.E.2d at 852. The following morning at trial, the trial court denied the attorney's request to conduct a re-re-direct examination of his witness. The attorney stated, “'[l]et the record also reflect new matters were raised on cross-examination, to which plaintiff'scounsel has not been given an opportunity to examine this witness. And, that's the basis of my objection.'” Id. at 585, 533 S.E.2d at 853. The trial court then sent the jury from the room and informed the attorney as follows:
            “Mr. Moore, on several occasions this morning, you have questioned the rulings of the Court. And, one of those occasions was when you were asking the doctor about his interpretation of a statute, which clearly, he was not qualified to do. And, you objected to that.

            And, so, we're going to continue this case until in the morning at 9:30. And, in the meantime, you're in the custody of the sheriff, for your disrespect toward this Court.

            We will be in recess until 9:30 in the morning. Take him into custody, Mr. Sheriff.”

Id. The contemnor was immediately taken into custody.
    Finally, in Verbal, the contemnor was an attorney who was held in direct contempt and sentenced after a summary proceeding to two days' imprisonment for being eighteen minutes late in returning to court after a recess, while a trial in which the contemnor was appearing was in progress. This Court reversed the order of contempt, stating that “[n]othing in the record before us indicates that the alleged contemnor was given any opportunity to be heard.” Verbal, 41 N.C. App. at 307, 254 S.E.2d at 795.
    Unlike these cases, present contemnor had the opportunity to inform the trial court why he should not be held in contempt, but chose instead to continue to address the trial court regarding Brown. Moreover, it is difficult to imagine what sort ofexplanation contemnor could have offered the trial court to excuse his behavior. The fact that contemnor may have believed he was acting in the best interests of his client by his actions is irrelevant. As noted supra, North Carolina attorneys must represent their clients within the bounds of professional conduct, and “[o]ur trial court judges must be allowed to maintain order, respect and proper function in their courtrooms.” Randell, 152 N.C. App. at 473, 567 S.E.2d at 817. Contemnor willfully disobeyed the trial court's direct order to sit down and stop talking. Such action constituted criminal contempt of the authority of the trial court, and the trial court did not err in finding such. We overrule this argument.
    In conclusion, we affirm the order of criminal contempt of the trial court.
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
     Brown is unrelated to present contemnor.

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