Christopher Dootson v. State of Arkansas

ARKANSAS COURT OF APPEALS

K. MAX KOONCE, II, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION III

CHRISTOPHER DOOTSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-450

November 29, 2000

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

CR99-442-1

HON. TOMMY J. KEITH, JUDGE

AFFIRMED

This is an appeal from the trial court's order finding appellant guilty of contempt of court. Appellant was sentenced to twenty-four hours in the Benton County Jail with credit for twenty-four hours served. On appeal, appellant contends that the trial court erred when it found him guilty of contempt of court for wearing a t-shirt printed with the phrase "Wanna raise some hell? Hell yeah!" We affirm because appellant failed to preserve the issue for appeal.

Appellant was subpoenaed to testify in a battery case in Rogers Municipal Court. He appeared in court wearing a black t-shirt that contained the words "Wanna raise some hell?" on the front. The back of the t-shirt read "Hell Yeah!" and had a picture of a skull with red eyes containing the name of a professional wrestler, Stone Cold. The t-shirt advertised the World Wrestling Federation (WWF). After the appellant testified, Municipal Judge Doug Schrantz asked him if he had another shirt at home, and appellant responded affirmatively. The municipal judge then found appellant in contempt of court for wearing the t-shirt. Appellant appealed the judgment for contempt of court to circuit court where his case was tried de novo.

Appellant waived his right to a jury trial in circuit court. Called on behalf of the State, Judge Schrantz testified that appellant was a witness in a contentious battery case between a husband and a wife. He stated that the circumstances were such that he found appellant's behavior in court to be inappropriate by virtue of his t-shirt. Judge Schrantz further testified that it was his belief that appellant wore the t-shirt and acted in such a way to express an attitude toward the court and the criminal justice system. Judge Schrantz stated that appellant was an uncooperative witness and that he had to instruct appellant several times to respond to the prosecutor's questions. Judge Schrantz thought that the t-shirt, along with appellant's attitude, suggested that society permit the behavior for which the individuals in the battery case were accused. Appellant was not asked to go home and change because Judge Schrantz did not want to delay the battery case. Judge Schrantz thought appellant's t-shirt and attitude displayed disrespect for the court.

After Judge Schrantz testified, the State rested. Appellant testified that he was subpoenaed to testify in a battery case involving his ex-girlfriend who was beaten up by her brother. Appellant stated that he went to court after work and did not have time to change clothes. He testified that he had no particular reason to wear the t-shirt on the day of court. Appellant answered questions for about ten minutes and when he stood up to leave, Judge Schrantz told him to turn around so he could read the back of his t-shirt. The judge then asked him to sit by the air conditioner until the trial was over. Appellant testified that after the trial was over, the judge asked him to approach the bench and told him he was being held in contempt of court because his t-shirt causes violence in the world. Appellant informed the judge that he did not have time to change his shirt after work and that he did not intend to disrupt the court.

The defense rested, and both parties made closing arguments. The trial court then found appellant guilty of contempt of court. On appeal, appellant argues that the trial court erred when itfound appellant guilty of contempt of court for wearing a t-shirt with the phrase "Wanna raise some hell? Hell yeah!" Appellant challenges the sufficiency of the evidence to support the trial court's order finding him guilty of contempt of court. However, we cannot reach the merits of appellant's argument because it was not preserved below.

Rule 33.1(c) of the Arkansas Rules of Criminal Procedure provides that the failure to challenge the sufficiency of the evidence is a waiver of any question pertaining to the sufficiency of the evidence to support the judgment on appeal. See also Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000). Rule 33.1(b) provides:

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

Appellant's case was tried before the court, and appellant did not move for dismissal at the close of the State's evidence or at the close of all the evidence. Therefore, we must affirm.

Affirmed.

STROUD, J., agrees

Griffen, J., concurs

WENDELL L. GRIFFEN, Judge, concurring. I agree with the majority that appellant is procedurally barred from raising a challenge to the sufficiency of the evidence. However, I write separately to emphasize that the instant situation did not justify use of the contempt power to punish appellant for wearing a t-shirt that displayed language that was neither vulgar nor obscene. This is especially true because the presiding judge never told appellant that his t-shirt was inappropriate and never directed appellant to correct the situation.

Appellant was subpoenaed to appear as a witness in a battery case in the Rogers MunicipalCourt. He appeared in court on the scheduled date wearing a t-shirt with 2 ½ to 3-inch lettering on the front stating, "WANNA RAISE SOME HELL?" On the back of the shirt, in the same large print, were words "HELL YEAH!," and a large skull. Appellant took the witness stand and testified. Once appellant completed his testimony, the presiding judge asked appellant to stand up and turn around. He then asked appellant if he had another shirt at home, and appellant responded yes. The judge told appellant to sit down. At the end of the trial, the judge called appellant to the front of the courtroom and told appellant he was finding him in contempt of court for wearing the t-shirt.

During the circuit court trial, Judge Schrantz, the presiding municipal judge, testified that appellant was a witness in a contentious battery trial. Judge Schrantz testified that it was inappropriate for appellant to wear the t-shirt and that he felt appellant wore the t-shirt to express an attitude toward the court and the criminal justice system. The judge recalled seeing appellant in the courtroom, but did not prevent appellant from testifying because he wanted to get through the case without having to delay it while appellant went home and changed. Appellant told the judge that he had worn the shirt to work on the day he testified, and the judge was unaware that the shirt was an advertisement for the World Wrestling Federation.

Appellant's behavior did not amount to contemptuous behavior. There is no evidence that the t-shirt disrupted the courtroom proceeding or necessitated the court's use of its criminal contempt powers. Appellant violated no order of the municipal judge by wearing the t-shirt. Appellant never refused to change or cover the t-shirt. Appellant did not mock, taunt, ridicule, or disparage the municipal judge. While Judge Schrantz was entitled to consider whether the t-shirt was appropriate attire, he could have taken other steps to protect against what he perceived as a showing of disrespect to the court's authority short of finding appellant in contempt. The judge could have told appellant that his t-shirt was inappropriate and allowed appellant an opportunity toleave the courtroom and turn the shirt inside-out. He could have allowed appellant to obtain a jacket to cover the shirt and excused appellant from the courtroom until the shirt was changed or covered. Either of these steps would have provided appellant with notice that the shirt was inappropriate. Had appellant refused to comply with the judge's request, the judge could have then imposed sanctions upon a finding of contempt.

It is true that our courts have inherent power to punish persons found in contempt of court when the contemptuous behavior is committed in the presence of the court. See Burradell v. State, 326 Ark. 182, 185, 931 S.W.2d 100, 102 (1996). This power is reserved to the courts, and may not be abridged by the legislature. See id. at 185, 931 S.W.2d at 102. Because contempt power is an incident of judicial power, it is incumbent on the courts to bridle its use, unless the necessity to hold a person in criminal contempt is "plain and unavoidable if the authority of the court is to continue." See Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).

When a person displays disrespect for the court, the dignity and authority of the court as well as the legal process is placed in jeopardy. See id., 931 S.W.2d at 102. Arkansas Code Annotated section 16-10-108 provides that a court may punish "disorderly, contemptuous, or insolent behavior committed during the court's sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority." See Ark. Code Ann. § 16-10-108(a)(1) (Repl. 1999) (emphasis added). Our supreme court has defined contemptuous behavior as behavior that "interferes with the order of the court's business or proceedings or reflects upon the court's integrity." See Burradell, 326 Ark. at 185, 931 S.W.2d at 102. The core purpose of a contempt citation is not to punish carelessness or poor judgment. See id. at 186, 931.S.W.2d at 103.

Very few decisions concern the attire of witnesses. A study of case law in our jurisdiction reveals no decisions where a witness was held in contempt for wearing inappropriate attire to thecourtroom. Other jurisdictions facing this issue have resolved the matter by mandating that the court 1) allow the person an opportunity to cover or change the inappropriate attire; 2) request that the person wearing the inappropriate attire leave the courtroom; or 3) give notice to the person that their attire is not acceptable.

In Doyle v. Aison, 627 N.Y.S.2d 485 (1995), a witness appeared to testify in a murder trial wearing a t-shirt that read "if assholes could fly this place would be an airport." When the court questioned the witness about the t-shirt, he stated that he had not had a chance to do laundry and had worn the t-shirt to work. The witness also stated that he had a coat with him. The court informed counsel that it intended to hold the witness in contempt for disrupting the trial process. Counsel then told the court it would not call the person as a witness, and wanted the trial to proceed. However, the court found that the petitioner knew his attire was not appropriate, and that petitioner disrupted the proceedings. On review, the appellate division of the New York Supreme Court agreed that the t-shirt was not appropriate for the courtroom. However, the appellate court disagreed that the petitioner's behavior in wearing the t-shirt justified sanctions under the contempt power. The opinion observed that other than wearing the t-shirt, petitioner displayed no "insolent, contemptuous, or disruptive behavior" that necessitated the court punishing the petitioner for contempt, and that there was nothing in the record to suggest that he would not have covered the t-shirt if ordered to do so.

Similarly, the t-shirt worn by appellant in this case was not worn in direct or willful violation of any court order. Appellant was subpoenaed by the State as a witness. He wore the t-shirt to the witness stand, and the judge allowed him to testify. The record demonstrates that appellant complied respectfully with every request the court made. When the judge asked appellant to turn around so that the judge could read the back of appellant's shirt, appellant did so. Also, when thejudge told appellant to remain seated until the trial was over, appellant did so. There is nothing in the record to suggest that had the judge told appellant to cover the shirt, appellant would have failed to do so.

In Riggs v. State, 588 So. 2d 1019 (Fla. Dist. Ct. App. 1991), the District Court of Appeals of Florida denied Riggs's petition for writ of certiorari review of a circuit court decision to hold Riggs in direct contempt for wearing a t-shirt with a vulgar slogan that depicted four women wearing thong-bikinis with their bare buttocks hanging over the edge of a truck with the words "hauling ass" underneath. The dissenting opinion disagreed that Riggs's behavior of wearing the offensive t-shirt to traffic court constituted criminal contempt. See Riggs, 588 So. 2d 1019 (Fla. Dist. Ct. App. 1991) (Sharp, J., dissenting). Instead, the dissent stated that the court should have warned Riggs. In support of its position, the dissent directed the majority to Eaton v. City of Tulsa, 415 U.S. 697 (1974). In Eaton, the Supreme Court found that a witness' use of the words "chicken shit," did not constitute criminal contempt, because the witness did not disobey a court order, did not use a loud tone of voice, and the speech did not pose an imminent threat to the administration of justice. See id. In this case, there was no finding that appellant intended to insult or disrupt the courtroom proceeding. The judge testified that other than wearing the t-shirt, appellant did nothing to direct the court's attention to the shirt, or to the wording of the shirt.

Appellant cites two cases from other jurisdictions that involved courtroom spectators who wore inappropriate attire. The first, State v. Havelka, 330 S.E.2d 288 (S.C. 1985), involved a spectator who accompanied a co-worker to a settlement proceeding wearing painting clothes. The court refused to conduct the hearing, and held Havelka in contempt of court. On review, the South Carolina Supreme Court reversed the trial court, and held that unless a person's appearance requires immediate sanctioning, the court should advise the person that their dress is not appropriate andrequest that they leave the courtroom until they can dress appropriately.

Applying the South Carolina court's reasoning to this case, appellant's appearance did not necessitate immediate sanctioning. Although the t-shirt may have been offensive to the judge, it was not vulgar. Also, appellant was not advised by the court that the court considered appellant's actions of wearing the shirt as inappropriate and given the opportunity to correct his behavior prior to the court finding him in direct contempt.

In People v. Watts, 384 N.E.2d 453 (Ill. App. Ct. 1978), the court held that before a court could hold a person in criminal contempt, the court must put the person on notice that their behavior is not appropriate, and give the person a reasonable opportunity to correct the offense. The appellant in Watts appeared in court to observe a proceeding wearing a shirt with the words "bitch, bitch," appearing in 5-inch letters. The circuit court found her in direct contempt, and the appellate court of Illinois reversed. The appellate court held that contempt requires actual or constructive knowledge that the behavior is prohibited; therefore intent is an element of contempt. It went on to observe that intent may be inferred by 1) an obvious contemptuous statement directed at the court, 2) an action that results or is likely to result in a disturbance, and 3) a person persisting in behavior that the court has given notice is not acceptable. See id. at 455-56. The court held that a spectator's action of wearing an inappropriate t-shirt to court did not create an inference of intent. The court noted that Watts did not make any contemptuous statements to the court or violate a court order - -she merely wore the shirt in question. Because the record failed to demonstrate that the court proceeding was actually disturbed, the appellate court refused to hold Watts to the same knowledge as those familiar with the courts. See id. at 456.

Similar to appellant in Watts, there is nothing in the record in the instant case to suggest that appellant had actual or constructive knowledge that his behavior was not appropriate. Appellant wasa witness for the State, and was not informed by the prosecuting attorney prior to the beginning of the trial that his t-shirt was not appropriate. Appellant did not direct any contemptuous statement to the court, and did not persist in any behavior that the court had directed him was not accepted. Appellant's action of wearing the t-shirt to testify as a witness did not give rise to an action that would result or was likely to result in a disturbance. This is supported by the municipal judge's testimony that he allowed appellant to finish testifying and found appellant in criminal contempt at the end of the trial.

The people who attend municipal court and other trial courts come from work, school, home, and many other settings. Judges do not suffer disrespect when the people who appear in court are dressed casually. If someone is inappropriately dressed, they deserve gentle correction. If they persist in wearing apparel that is disruptive, insulting, or otherwise disparaging in direct and wilful violation of a court order, then a contempt finding and sanction is justified. Short of that, however, inappropriate dress should be corrected by judges in measured, temperate, and considerate action.