Burradell v. State

Richard BURRADELL v. STATE of Arkansas

CR 96-602                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Appeal & error -- argument presented for first time on appeal
     not considered. -- An argument that is presented for the first
     time on appeal will not be considered by the court.

2.   Contempt -- court has inherent power to punish for contempt --
     power cannot be abridged by legislation. -- A court has
     inherent power to punish contemptuous behavior committed in
     its presence, without regard to the restrictions imposed by
     statute; summary punishment for contempt committed in the
     presence of the court is an inherent power reserved to the
     judiciary and cannot be abridged by legislation. 

3.   Contempt -- purpose of power of contempt -- allowing
     intoxicated defendant to appear for plea hearing offends power
     and dignity of court. -- An act is contemptuous if it
     interferes with the order of the court's business or
     proceedings or reflects upon the court's integrity; the power
     of contempt is available to uphold public confidence in the
     majesty of the law and to preserve the power and dignity of
     the court; these interests are offended by a defendant who
     shows up for a plea hearing under the influence of alcohol;
     further, the validity of the proceedings themselves could be
     called into question by the participation of an intoxicated
     defendant; one of the values of a court's exercise of its
     criminal-contempt power is its deterrent effect on others; a
     contempt citation such as the one issued against appellant
     lets others know that such behavior will not be tolerated by
     the court.

4.   Contempt -- sentence for contempt not intended primarily as
     means for punishing bad judgment -- criminal contempt used to
     protect court's integrity and authority, regardless of actor's
     subjective intent. -- Contempt citations have been affirmed
     even where the appellants argued that they did not intend by
     their actions to show contempt or disrespect; a sentence for
     contempt is not intended primarily as a means for punishing
     carelessness or bad judgment; however, criminal contempt is
     used to protect the dignity, integrity, and authority of the
     courts, regardless of the actor's subjective intent.


     Appeal from Benton Circuit Court; Tom Keith, Judge; affirmed.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.
     The issue in this case is whether we will prevent a trial
judge from exercising his or her contempt authority when a
defendant appears in court under the influence of alcohol.  The
appellant, Richard Burradell, appeared in Rogers Municipal Court
for a plea hearing.  He had been drinking to such an extent that he
smelled of alcohol and registered .13 on a portable breathalyzer
test.  Municipal Judge R. Douglas Schrantz cited Burradell for
contempt and sentenced him to two days in jail.  Burradell appealed
to Benton County Circuit Court and, after a de novo bench trial,
was again adjudged guilty of contempt.  We affirm, and hold that it
was within the inherent authority of the municipal judge to punish
Burradell for contempt.
     The facts, in greater detail, are as follows.  On March 3,
1995, Burradell appeared in Rogers Municipal Court for a pretrial
hearing.  He had been charged with DWI 1.  The purpose of his
appearance was to enter a guilty plea, pursuant to an agreement
with the prosecutor.  Before entering the courtroom, Burradell was
"screened" by a representative of the Ozark Guidance Center.  The
representative noticed that Burradell smelled of alcohol.  A police
officer was summoned to administer a portable breathalyzer test and
Burradell registered a .13 blood alcohol level.  Burradell's
attorney learned what had transpired and he informed Judge
Schrantz.  The judge summarily found Burradell in contempt and
sentenced him to two days in jail.
     The contempt finding was appealed to circuit court.  Burradell
contended that, in the absence of any disruptive behavior on his
part, he could not be held in contempt for simply appearing in
court under the influence of alcohol.  The State conceded that,
other than smelling of alcohol and registering a .13 on the breath
test, Burradell displayed no outward signs of intoxication.   After
a hearing, the circuit judge found that Burradell's condition
displayed a lack of regard for the court, eroded the solemnity of
the proceedings, potentially impaired the proceedings, and
demonstrated disrespect.  Burradell was found guilty of contempt
and sentenced to twelve hours time served.  This appeal followed.
     First, we address Burradell's argument that the municipal
court had no power under Ark. Code Ann.  16-10-108(a) (Repl. 1994)
to hold him in contempt.  That statute reads as follows: 

     Every court of record shall have the power to punish, as
     for criminal contempt, persons guilty of the following
     acts, and no others:

     (1) 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 to its
     authority;

     (2) Any breach of the peace, noise, or disturbance
     directly tending to interrupt its proceedings;

     (3) Willful disobedience of any process or order lawfully
     issued or made by it;

     (4) Resistance, willfully offered, by any person to the
     lawful order or process of the court;  and

     (5) The contumacious and unlawful refusal of any person
     to be sworn as a witness and, when so sworn, a similar
     refusal to answer any legal and proper interrogatory.



     Burradell claims that the Rogers Municipal Court is not a
"court of record" as required by the statute.  That argument is
presented for the first time on appeal, so we will not consider it. 
See Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).  He also
contends that his behavior did not fall within any of the five
categories listed in  16-10-108(a).  It is not necessary for us to
address that contention.  A court has inherent power to punish
contemptuous behavior committed in its presence, without regard to
the restrictions imposed by  16-10-108(a).  Summary punishment for
contempt committed in the presence of the court is an inherent
power reserved to the judiciary, and cannot be abridged by
legislation.  See Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).
     The power to punish for contempt is inherent in all courts. 
Its existence is essential to the preservation of order in judicial
proceedings.  James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964). 
It is inevitable that, if a defendant is allowed to appear at a
court proceeding in a state of intoxication, the authority and
dignity of the court will suffer.  Such behavior is, standing
alone, a mark of disrespect to the court and the legal process.
An act is contemptuous if it interferes with the order of the
court's business or proceedings or reflects upon the court's
integrity.  Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314
(1995).  The power of contempt is available to uphold public
confidence in the majesty of the law,  Carle v. Burnett, 311 Ark.
477, 845 S.W.2d 7 (1993), and to preserve the power and dignity of
the court.  Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). 
These interests are offended by a defendant who shows up for a plea
hearing under the influence of alcohol.  Public confidence in the
majesty of the law would be sorely tried were a court to turn a
blind eye to a defendant who appeared in court smelling of alcohol
and intoxicated to the extent we have in this case.  Further, the
validity of the proceedings themselves could be called into
question by the participation of an intoxicated defendant. 
Finally, we have recognized that one of the values of a court's
exercise of its criminal contempt power is its deterrent effect on
others.  Ward v. Ward, 273 Ark. 198, 617 S.W.2d 364 (1981).  A
contempt citation such as the one issued against Burradell lets
others know that such behavior will not be tolerated by the court.
     The appellant claims that he intended no disrespect by his
actions.  His argument is stated best on page twenty-three of his
brief:

     The worst that the defendant did in the instant case is
     take a few snorts of booze to calm his nerves before
     court.  This was bad judgment to say the least,
     especially in light of the underlying offense of DWI, but
     it certainly did not amount to a defendant showing
     contempt or disrespect to the judge or the court.


     The appellant cites three Arkansas cases in support of his
argument.  Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991); 
Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973);  Meekins v.
State, 34 Ark. App. 67, 806 S.W.2d 9 (1991).  However, those cases
are not applicable because they involve the effect of intoxication
on a defendant's competence or the voluntariness of his actions. 
Likewise, the cases cited by the appellant from other jurisdictions
are distinguishable, although they involve similar fact situations. 
In Cameron v. State, 102 Md. App. 600, 650 A.2d 1376 (1994), it
could not be conclusively determined that the appellant had been
under the influence of alcohol while in the court's presence.  In
Commonwealth v. DiGiacinto, 324 Pa. Super. 200, 471 A.2d 533
(1984), Pennsylvania law required "misbehavior...obstructing the
administration of justice" before a contempt citation could be
issued.  In Bethard v. District of Columbia, 650 A.2d 651 (D.C.
1994), a charge of contempt could only be supported by a finding of
a willful attempt to show disrespect.                        
     We have empowered our judges with greater authority to
preserve and protect the dignity of their courtrooms.  This is
evidenced by the fact that we have affirmed contempt citations even
where the appellants argued that they did not intend by their
actions to show contempt or disrespect.  In Ward v. Ward, supra, 
the appellant was jailed for contempt for refusing to pay child
support as ordered.  We recognized that his refusal to pay was
based on a misunderstanding of the law rather than a contemptuous
attitude.  Nevertheless, we upheld the contempt citation, although
we took the appellant's lack of contemptuous intent into
consideration and modified his sentence.  In  Garner v. Amsler, 238
Ark. 34, 377 S.W.2d 872 (1964), two attorneys represented to the
trial court that the jury was "stacked" against them.   When the
claim turned out to be groundless, the attorneys were held in
contempt of court.  We recognized that a sentence for contempt is
not intended primarily as a means for punishing carelessness or bad
judgment, but we did not absolve the appellants of contempt. 
Instead, we reduced the sentences imposed on them.  The Ward case
and the Amsler case embody the principle that criminal contempt is
punished to protect the dignity, integrity, and authority of the
courts, regardless of the actor's subjective intent.
     Affirmed.
     Dudley, Newbern, and Roaf, JJ., dissent.
     Roaf, J., dissenting. 
     I agree with the proposition that a trial court has inherent
power to punish contemptuous behavior committed in its presence.
However, although this power is broad, it is not without limit. 
See, e.g., Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). 
Moreover, we have admonished that "[t]he contempt power should
never be exercised except where the necessity is plain and
unavoidable if the authority of the court is to continue."  Edwards
v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984).
     In this case, the facts are not in dispute.  Burradell was
punished only because the smell of alcohol on his breath led to the
administration of a portable breath test and a reading of a .13
blood-alcohol content.  The abstract reflects that he was 
summarily found in contempt without any further discussion when the
municipal judge was advised about the portable breath-test results. 
It is also undisputed that Burradell displayed no outward signs of
intoxication.  
     Burradell has appealed from his circuit court conviction for
contempt after a de novo review in which the conditions which led
to the original contempt conviction fortunately were not
duplicated.  The circuit court found that Burradell was "under the
influence" rather than intoxicated. However, he expressed concern
about the proceedings in municipal court:
     The Court: Now, the one element here that I think that's
     different, there's one element not involved here that's -
     -and I'm not trying to second guess the [municipal] judge
     at all.  The one element, at least I think, that would --
     I've always required, at least in my own observation of
     this -- and believe me, I've locked up more than one for
     showing up in court drunk, and will continue to -- or
     under the influence.  To me to come in here -- I mean,
     it's one thing to have a drink.  It's another thing to
     have two drinks.  But to come in here and blow a
     thirteen, that's not just a drink or two for dinner.  But
     there is one element that's lacking here that I usually
     have, at least in a personal sense have always required,
     and that is that the Court make some personal observation
     that would indicate the person's under the influence, and
     I don't have that with what you all have presented so
     far.

     Prosecutor: It's because there was none, your Honor.  It
     would be the State's stipulation that other than the
     blood alcohol and the smell of intoxicants that he
     displayed no outward signs of being intoxicated.
     
     The Court:  Well, as bad as I hate to do it, I think I'll
     take this under advisement for about two weeks.

(Emphasis added.)     

     The circuit court also reduced Burradell's sentence from two
days to the time he had already served, twelve hours, upon the
recommendation of the prosecution.  Burradell further had the
opportunity to address the court at his de novo hearing, a
consideration he did not receive in municipal court.  He apologized
for his conduct, explained to the court that there was no
disrespect intended, that he was nervous and afraid of appearing in
court, and that he "made the wrong judgment on a sedative."  There
is an element of truth in this comment, because had he taken Valium
or some other medication, or perhaps even used a good mouthwash, he
would have been judged as he should have, solely on his conduct "in
the presence of the court."
     Indeed, this court has previously commented on the importance
of the attitude of a person facing a charge of criminal contempt:
       Perhaps there is no case in which the [trial] court's
     observation of the parties, and their demeanor and
     conduct, including their manner of speaking and tone of
     voice, their facial expressions and body movements, can
     be more important than on a charge of contempt,
     particularly criminal contempt, of which attitudes of the
     alleged contemnor can be such an integral part.

Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983). (Emphasis
added.)
     Finally, a trial court may punish for contempt committed in
its presence without comporting with the due process standards
attendant in other criminal contempt proceedings.  See, e.g 
Fitzhugh v. State, 296 Ark. 137, 664 S.W.2d 596 (1988).  This is
all the more reason that the municipal judge should have ensured
that the necessity of exercising this considerable power was "plain
and unavoidable if the authority of the court is to continue." 
Edwards v.  Johnson, supra. 
     I would reverse.
     Dudley and Newbern, JJ., join in this dissent.