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