Smith v. State

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Smith v. Sta te No. 134, September Term, 2003 CRIMINAL LAW CONTEMPT MULTIPLE CONVICTIONS DURING SINGLE PROCEEDING Holding a defend ant in contempt multiple times during a single, continuous proceeding is not an abuse of a trial judge s discretion when, after eac h contempt finding , the defendant s contemptuous behavior abates, allowing the orderly and dignified operation o f the court to resume. Multiple c ontempt c onvictions based on separate and discrete conduct, not amounting to judicial provocation or treatable as a single emotional outburst or event, are not unreasonable. If a contem pt finding f ails to curtail the contemptuous behavior, howe ver, a trial judge should employ alternative remedies. Circuit Co urt for W icomico C ounty Case # 98CR0244 IN THE COURT OF APPEALS OF MARYLAND No. 134 September Term, 2003 PATRICK DARNELL SMITH v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: July 29, 2004 Petitioner, Patrick Darnell Smith, was convicted in the Circuit Court for Wicomico County of multiple drug-related offenses. In addition, for conduct occurring in the course of a hearing on Smith s motion for a new trial, the trial judge found him in direct criminal contempt of court on three occasions. The initial two instances of verbal misconduct resulting in contempt findings were separated by several minutes of relatively ordinary courtroom dialogue. The third episode resulting in a contempt finding came at the end of the hearing when Smith launched into a string of expletives against the judge after denial of the motion for a new trial. In an unreported opinion, the Court of Special Appeals upheld all of the convictions. We granted Smith s petition for a writ of certiorari, 380 Md. 230, 844 A.2d 427 (2004), so that we might consider the following question: Did the Court of Special Appeals err in affirming three convictions for contempt wh ich arose out of a single em otional outburst of the Petitioner? We hold that Petitioner s three acts of reco gnized co ntempt w ere separate and discrete incidents supporting the three convictions. Consequently, we affirm the judgments. I. On 7 Marc h 2002, P etitioner was convicted in the Circuit Court of six drug-related offenses, for which he received sentences totaling twenty-one years of imprisonment. On 30 May 2002, after discharging his trial counsel, Petitioner represented himself at a hearing on his motion for a new trial. During th is hearing, Petitioner employed profanity at certain times in addressing the court. The judge found Petitioner in contempt on three such occasions, sentencing him to five months imprisonment on each count, to be serv ed co nsec utively. Not all of Petitioner s use of profanity, however, was recognized by the court as contemptuous. Petitioner s first use of profanity in the proceeding occurred when he used the word fuck , apparently for emphasis, in recalling an earlier conversation with his trial counsel who allegedly invited Petitioner to pursue a post-conviction petition based on ineffective assistance of counsel at trial. Although not holding Petitioner in contempt for this utterance, the judge promptly warned Petitioner that further use of that language would result in a contempt finding. Se veral minu tes later (or the e quivalent o f nine pag es of transcript), Petitioner again employed the word fuck in addressing the court. Fo r this, he sum marily was found in contempt. The proceedin g continued for a few minutes more (spanning approxim ately six pages of transcript), addressing Petitioner s assertion that he earlier requested the court to issue certain witness subpoenas for the hearing, before Petitioner again uttered fuck and was found in contempt a second time. In response to his apparent predicament at this point, Pe titioner blurted th e expletive shit. The jud ge ignored this remark. Thereafter, Petitioner testified on his own behalf, the State adduced some documentary evidence, and Petitioner and the State s Attorney argued, without further incident, the motion for a new trial over the ensuing th irty-seven page s of transcrip t. Then, as the court began to explain its ruling on the new trial motion and the outcome became predictable, Petitioner interr upted, dec laring, Tha t s bullshit. That s bullshit. The judge ignored this outburst a nd continu ed with his oral ruling. About a page of transcript later, as 2 the judge explained why he found merit in Petitioner s trial attorney s reasons for not calling certain witnesses at trial, Petitioner openly pondered, Ain t that a bitch? The judge chose to ignore P etitioner s con duct on this o ccasion as w ell. After concluding the explanation of his reaso ns for denying the motion for a new trial, the judge turned to the matter of sentencing for the two counts of contempt found to have occurred earlier during the hearing. The judge asked Petitioner if he wished to be heard as to that sentencing.1 The following colloquy ensued: THE D EFEND ANT: W hat is the maximum on contempt, sir? THE C OUR T: Wha t is the maxim um on co ntempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is th at corre ct . . . ? [STATE S A TTORN EY]: Yes. THE COURT: M r. Smith, I am not going to give you in excess of six months. THE DEFEN DANT: Let me tell you something. THE C OUR T: Wha t? THE DE FENDA NT: You say you won t give me in excess of six months. THE CO URT: Yes. THE DEFE NDA NT: Y ou know what? You have been sitting up there in the trial in every hearin g I have h ad for this fa r, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify -THE COURT: I asked you if you had anything you want to say as to what sentence the Cou rt should impose -THE DEFENDA NT: Yeah. You know what? You can give me six more 1 A defendant found to have committed direct criminal contempt ordinarily should be given the opportun ity to allocute, espec ially when, as P etitioner claim s, the inappro priate conduct was essentially reflexive. See Mitc hell v. State, 320 Md. 756, 768, 580 A.2d 196, 202 (1990). 3 months, motherfucker, for sucking my dick, you punk ass b itch. You s hould have a white robe on, motherfucker, instead of a black. Fuck you. THE COU RT: I find you in contempt again. THE DEFEN DANT: Fuck you in contempt again. THE C OURT : I find you three times in contemp t --[2] THE DEFEN DANT: Fuck you. And fuck. THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve. THE DEFEN DANT: Yeah. You better leave now, you, Ku Klux Klan. 2 We must clarify an apparent ambiguity pervading this case since the time Petitioner s appeal was briefed and argued in the intermediate appellate court. The trial judge did not find Petitioner in contempt twice for the final tirade. When the judge said, I find you three times in contem pt --, he wa s not respon ding to Pe titioner s, Fuc k you in contempt again. Rather, the judge was interrupted w hile summ arizing that he had foun d Petitioner in contempt for a total of three times (twice for the previous uses of fuck and now a third for the closing tirade up to that point) and was to be sentenced to five months imprisonment on each count. A careful reading of the record compels this interpretation, one supported also by the trial judge s Memorandum and Order of Con tempt filed o n 5 June 2 002. In his Memorandum and Order, the trial judge explained: At an early stage in the hearin g, the Defendant was warned that if he continued to use the word fuck, he would be held in contempt. Despite these warnings, Defendant continued his use of such language on two occasions in direct violation of the Court s directive, thus interrupting the order of the Cou rt and interfering with the dignified conduct of the Court s business. The Defendant was found in direct contempt on each occasion with the imposition of sanctions deferred until the conclusion of the hearing. When given his right of allocution before sentencing, the Defendant stated: Yeah, you know what? Y ou can giv e me six more months, motherfucker, for sucking my dick, you punk ass bitch. You should h ave a white robe o n, motherfucker, instead of blac k. Fuck yo u. The Defendant was found in direct criminal contempt a third time for that outburst. 4 THE COU RT: The Court will adjourn. THE DEFENDA NT: Fuck you, fuck you, fuck you, fuck you, fuck you, fuck you, and fuck you, you, Ku K lux Klan -(Whe reupon , the Pro ceedin gs we re conc luded.) Petitioner subsequently appealed his three contempt convictions, among other issues, to the Court of Special Appeals. Before that court, as before us, Petitione r argued tha t his profanity was provoked by the trial judge. In a ffirming th e convictio ns, the interm ediate appellate court concluded: [T]he trial court was carefully and m ethodically attempting to move through a motio ns hear ing . . . . The record reveals that the trial court indu lged Sm ith at nearly every turn and continually attempted to re-direct him to the subjec t. . . . [T]he trial court did nothing to provoke Sm ith; to the contrary, the court s patience is apparent, even from the printed page. At oral argument before this Court, Petitioner attempted further to ameliorate h is behavior by stating pro se defendants can be very trying and u rging that it na turally could be anticipated that frustration on his part would be communicated through the use of street vernacular. Petitioner does not argue that his behavior was not contemptuous; rather, he contends his conduct s hould be v iewed co llectively as a single emotiona l outburst, constituting but a single act o f contem pt. We ag ree, howe ver, with the analysis and res ult of the Court of Special Appeals. II. The contempt power has stood as a sentry at the citadel of justice for a very long time . . . . State v. Roll a nd Scho ll, 267 Md. 714, 717 , 298 A.2d 867, 870 (1973). W ithout this power, the courts would be subject to the wh im of any pe rson wh o seeks to d isrupt their 5 proceedings. Consequently, it is beyond cavil that the power to hold a person in contempt is inherent in all courts as a principal tool to protect the orderly administration of justice and the dignity of that branch of government that adjudicates the rights and interests of the people. See Ex Parte Maulsby, 13 Md. 625, 635 (1859). It is reposed in the first instance in the trial judge s sound discretion whether to hold an individual in contempt, and his or her decision generally will not be overturned on appellate review absent an abuse of that discretion or a clearly erroneous dependent finding of fac t. See Roll a nd Scho ll, 267 Md. at 717, 298 A.2d at 870 (stating further that exercise of the contempt power, demands care and discretion in its use . . . . ); Droney v. Droney, 102 Md. App. 672, 683-84, 651 A.2d 415, 428 (1995) (citing Baltimore v. Baltimore, 89 Md. App. 250, 254, 597 A.2d 1058, 1060 (1991)). In Maryland, the contempt power is defined by the common law and the rules of procedure establish ed by this C ourt. See Md. Code (1974, 2002 Repl. Vol.), § 1-202 of the Courts and Judicial Proceedings Article. We recognize two forms of contempt direct and constructive and two types of each form criminal and civil. Direct contempt is committed in the presence of the trial judge or so near to him or her as to interrupt the court s proceedings, while con structive con tempt is any other form of contem pt. See Md. Rule 15202; see also M itchell, 320 Md. at 763 , 580 A.2d at 199 ( In order to constitute a direct contemp t, it is not necessary that the condu ct bring a ha lt to the proceedings in pro gress. It takes but a moment of time to hurl a vile epithet at a judge or jury, but such conduct in a courtroom will not be tolerated, and may properly be addressed summ arily. ). Criminal 6 contempt serv es a p unitive f unction, while civil co ntem pt is r eme dial o r com puls ory and must p rovide for pu rging. See, e.g., Roll a nd Scho ll, 267 M d. at 728 , 298 A .2d at 87 6. The purpose o f a summ ary conviction for direct criminal contempt is to punish immedia tely the contemnor for his or her behavior and vindicate the authority and dignity of the court, serving both as a sp ecific and g eneral deterr ent. See Ashfo rd v. State, 358 Md. 552, 563, 750 A.2d 35, 40 (2000) (citing Lynch v. Lynch, 342 Md. 509, 520, 677 A.2d 584, 58990 (1996); Ex Parte Bowles, 164 M d. 318, 3 30, 165 A. 169, 174 (1933 )); Roll and S choll, 267 Md. at 72 7, 298 A .2d at 875. It is ra re that, once e xercised, the power o f contem pt fails to serve the pu rpose for w hich it evolved. The present case re aches us b ecause it is unfor tunately o ne such rare occ urrenc e. III. Petitioner contends that his contemptuous utterances sh ould be co nsidered as a single emotional outbur st deserv ing of o nly one c ontem pt conv iction. In reliance on Johnson v. State, 100 Md. App. 553, 642 A.2d 259 (1994), Petitioner also asserts that his behavior was subject to the influence of the trial judge. In Johnson, the trial court, during the proceeding on the merits, found the defendant had violated his parole. As the defendant Johnson was leaving the courtroom, he muttered, Don t make no mother fucking sense. Id. at 557, 642 A.2d at 261. The judge direc ted that he b e brough t back to co unsel table a nd summ arily convicted him of contem pt. Id. at 558, 642 A.2d at 261. The defendant responded to that with more profanities, and the judge found him in contempt a second time. Id. There ensued 7 an extended back-and -forth colloquy3 that ended with Johnson amassing ten convictions for 3 The colloquy in Johnson is reproduc ed here be cause it is app arent at onc e to be of a different nature than in Petitioner s case: THE COU RT: Call the next case please. [PROS ECUT OR]: State calls Eu gene W right 591182012. Laura Shach for the State. MR. JOHN SON: at the same time. Don t make no mother fucking sense. THE COU RT: Bring him back. Take him back. MR. JOHNSO N: No mother fucking sense. THE COU RT: Pull him back. MR. JOHNSON : Yo, man, stop yanking on my mother fucking arms. Mother fucking THE COU RT: Sit him back over there in front of the table. THE CLERK: Give me the file back . He migh t be under c ontempt o f court. THE COURT: Now , stand there. Come back to that table there. Step on up now. What s wrong with you? MR. JOHNSON: What the fuck you think wrong with me, man? Goddamn, I m trying to tell you I ain t have no mother fucking option in this shit, man. THE C OUR T: All right MR. JOHNSON : What the fuck? You thin k everybod y just want to go sit in prison for the rest of their life because you ain t got nothing better to do than sit up there and crack jokes. This ain t no mother fucking jo ke, man. T his is about my goddamn life. THE COURT: That cost you five months and twenty-nine d ays in addition to the three years I ve just given you. [#1] MR. JOHNSO N: Fuck this shit, man. THE COUR T: All right. That s five months and twenty-nine more in addition to the five months and twenty-nine I ve given you. [#2] MR. JOHNSO N: Fuck you, bitch. THE COURT: That make ten months plus the ten, twenty-nine days. That s twelve months. T hat s a year. Call me that again and I ll give you a nother. MR. JOHNSO N: Fuck you, bitch. THE COURT: That s five months and twenty-n ine days. That s three years. That s five months and twenty-nin e days. Now, wait a m inute. That s consecutive to the three years that you re now doing. Each one of those. Separate and independent. [#3] MR. JOHNSON : If I had a gun, your mother fucking head would be splattered all over the back of the g oddamn w all for (continued...) 8 contempt and, at the rate of five months and twenty-nine days per conviction (to be served consecutively), a total of an additional five years impriso nmen t. Id. at 558-60, 642 A.2d at (...continued) THE C OUR T: And you d bette r sho ot str aigh t when you try. When you get out come on. Five months and twenty-nine more for that. That s consecutive to the one that you re now doing. [#4] MR. JOHNSON: Whatever man. You re tired of giving it out? Did you finish or w hat? THE COURT: Well, we can see. That s five months and twenty-nine more. [#5] MR. JOHNSO N: Kiss my ass again. THE COU RT: Five months and twenty-nine more. [#6] MR. JOH NSON : Kiss my ass again until you re tired of giving m e another. THE COURT: That s six of them. MR. JOHNSO N: Kiss my ass again. THE COU RT: Seven. Five months and twenty-nine days. [#7] MR. JOHNSO N: Fuck you. Kiss my ass again. THE COU RT: Five months and twenty-nine days. [#8] MR. JO HNS ON: A ll right. THE COU RT: Consecutive. THE CLERK : Silence. MR. JOHNSO N: So, you finished giving out time? THE COU RT: I guess. Until you cuss again. MR. JOHNSO N: Suck my dick. THE COU RT: Five months and twenty-nine days consecutive. [#9] THE B AILIFF : Quiet in the Court. MR. JOHNSO N: You finished? THE COU RT: I suppose. MR. JOHNSO N: Well, what the fuck are you holding me for then? THE COURT: Five months and twenty-nine more days. Consecutive. [#10] MR. JOHNSO N: Get the fuck off me, man. THE COU RT: Call the next one. MS. SH ACH : State calls the m atter of Eu gene W right THE C OUR T: Reco rd should s how tha t MS. SHACH : 591182012. THE COURT: if I d have a shotgun I n eed to have shot him but I don t have it today. Call the next case. Johnson, 100 Md. A pp. at 557-60, 642 A .2d at 261-62 (alterations in original). 9 261-62. On these facts, the Court of Special Appeals had no trouble concluding that the trial judge lost his temper and his judicial dem eanor an d provok ed the def endant into his repeated acts of c ontem pt. Id. at 562, 642 A.2d at 264. Because the court could not determine which contemptuous acts resulted from the judge s provocation, the court vacated the ten contempt convictions and directed the trial judge on remand to consider the entire inciden t as one episod e of co ntemp t. Id. at 563, 642 A.2d at 264. Petitioner s attempted analogy of what occurred in his case to that o ccurring in Johnson is a misfire. First, Petitioner s contempt convictions did not result from an extended, uninterrupted colloquy with the court; rather, they resulted from distinct acts, separated in time and focus by at least several minutes of unremarkable, normal discussion or exchanges arguably relevant to the purpose of the proceeding Petitioner s discharge of trial counsel and the merits of his motion for a new trial. Second, unlike in Johnson, the judge in the present case, after warning Petitioner, after the first bite, of the consequences of repeated conduct of the same type, did not provoke Petitioner into further acts of contemp t; instead, after each finding of contempt, the judge immediately steered from the digression back to the on-going purpose of the proceeding. Third, Petitioner was extended great tolerance an d leniency by the c ourt regard ing his verbal behavior overall: on three other occasions the judge overlooked what otherwise might have been additional contempt-worthy utterances. Lastly, it appears that when he wanted to, and when it suited his purpose, Petitioner was capable of addressing the court in a relatively normal and conversational 10 mann er. IV. A. Next, we address the argument that it should be error for a judge to find an individual in contempt multiple times during the same, continuous proceeding. Petitioner suggests, when such ci rcums tances th reaten, that we req uire a judge to call a recess after finding an individual in contempt the first time before the judge thereafter may find that person in contempt for a su bsequ ent off ense of contem pt. The federal and state courts, including Maryland s, however, permit a judge to convict summarily an individual for contempt multiple times during the course of a single proceeding.4 We refuse to adopt the rule sought 4 A plurality of the U.S. Supreme Court found that if a trial judge holds a defendant in contempt and sentences him to six months imprisonment, such action does not prevent the judge from summarily convicting the defendant of contempt for subsequent misconduct in the same pro ceeding, ev en though the sentenc es, if served c onsecutive ly, would exc eed six months. Codispo ti v. Pennsylv ania, 418 U.S. 506, 513-15, 94 S.Ct. 2687, 2692 (1974). The Court of Special Appeals opined in Johnson, the case on which P etitioner chief ly relies, [w]e have no difficulty with a trial judge, where the circumstances warrant it, finding a defendant guilty of m ultiple co unts of contem pt. Johnson, 100 Md.App. at 562, 642 A.2d at 264. Upon reading the cases from other jurisdictio ns that Petition er cites in his brief, we infer that the same rule is recognized in other states. When those courts faced the issue of multiple contempt convictions during a single proceeding, they did not adop t a broad rule prohibiting judges from holding a defendant in contempt multiple times; rather, in vacating the convictions (or ordering concurrent sentences), they focused on the fact that the behavior occurred during essentially a single outbur st and th us did n ot cons titute sep arate ac ts. See Williams v. State, 599 So.2d 255, 256 (Fla. Dist. Ct. App. 1992) (concluding, appe llant s two statements of profanity, which were virtually identical and separated in time only long enough for the trial court to find appellant in c ontempt, ar e properly view ed as a sing le instance of contemp t. ); State v. Bullock, 576 So.2d 453, 458 (La. 1991) (allowing the defendant s multiple convictions to stand, but ordering concurrent sentences given that the (continued...) 11 by Petitioner, w hich unrea sonably wo uld tie the hands of trial judges in maintaining order in their courtroo ms. As dis cussed in Part II of this opinion, the purpose of the contempt power is to allow a judge to maintain the dignity and orderly operation of the court. We reiterate that as long as contempt convictions in a given case serve that purpose, it is not error necessarily for a judge to find the same individual multiple times in contempt during the course of a single, continuous proceeding. Thus, the judge in the present case did not err in not calling a recess upon finding Petitioner in contempt for saying fuck the first time in the hearing. After Petitioner was found in conte mpt the first time , the focus of discussion immediately returned to the consideration of matters re lated to Petitioner s case. The proceeding continued for several minutes more before Petitioner was found in contempt for the second time.5 Thereafter, for (...continued) contemptuous behavior w as part of a s ingle episod e); State v. Ling wall, 637 N.W.2d 311, 314-15 (Minn. Ct. App. 2001) (holding that Minnesota s double jeopardy statute prevented multiple punishm ents in the case because there w as not a sufficient break in L ingwall s conduct to mak e it separ ate beh avioral i nciden ts. ); see also Butler v. Florida, 330 So.2d 244, 245 (Fla. Dist. Ct. App. 1976) (concluding that because the six epithets used during an outburst were not individual acts, appellant was guilty of but a single contempt); Comm onwea lth v. Williams, 753 A.2d 856, 864 (Pa. Super. Ct. 2000) (reasoning that in order for a court to impose multiple sentenc es, an individ ual s cond uct must co nstitute separa te contemptuous acts). We deduce, therefore, that had the defendant s behavior in each of those cases been sep arate acts, the respective state courts would have upheld multiple convictions for contem pt. 5 Even were we to require, as a matter of rote procedure, a recess following an initial contempt finding, no constructive purpose would have been served to do so in the present case because it appeared Petitioner was able to return to the business at hand after the first contempt was fou nd. Mo reover, he a ppeared to act similarly following the second contempt (continued...) 12 the next forty pages of transcript, the proceedings continued relatively normally before Petitioner s final tira de. Given the somewhat curative effect that the first two contempt convictions had on P etitioner s beh avior, we c onclude th at the judge properly exerc ised his discretion in those instances. B. Should a judge de termine, ho wever, tha t finding an individ ual in conte mpt fails to curtail the disruption to the proceeding, we agree alternative remedies should be considered. In the case of a contemptuous defendant who remains unresponsive to the contempt finding(s), the judge may elect to call a recess to allow tim e for the de fendant s temper to cool and better judgment to be restored. A judge also has the power, in extreme circumstances, to remove a defe ndant from the co urtroom and to proc eed in his or her absence.6 The possible alternative actions explored here are not exhaustive. The (...continued) finding. 6 A defendant s Sixth and Fourteen th Amen dment righ t to be presen t at his or her trial, though fundamental, is not absolute. [T]he privilege [of personally confronting witnesses] may be lost by consent or at times even by misconduct. Illinois v. Allen, 397 U.S. 337, 34243, 90 S.Ct. 1057, 1060 (1970) (alterations in original) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332 (1934)). The Court in Allen was called upon to determine the constitutionality of the trial judge s two orders to have the defendant removed from the courtroom, after having first issued a warning, when he threatened the judge, hurled abusive remarks, and severe ly disrupte d the pr oceed ings. Id. at 339-41, 90 S.Ct at 1059. In upholding the constitutionality of the trial judge s actions, the Court outlined three requireme nts for removing a defendant from the courtroom: (1) the defendant must first be warned that he or she will be removed if his or her disruptive behavior continues; (2) his or her behavior m ust be so disr uptive or dis respectful th at his or her trial c annot pro ceed with (continued...) 13 appropriateness and lawfulness of any action taken in a given case will depend naturally on the fac ts of eac h case. For example, in the present case, even after Petitioner was found in contempt midway through his final tirade, h e persisted in hurling invectives at the court. Had the judge sim ply continued to find Petitioner in contempt for each discrete profane element of this tirade, such action would have been unreasonable and, therefore, an abuse of discretion, much like as was found in Johnson. This would be in accord with the holdings of the U.S. Court of Appea ls for the Fourth Circuit and the majority of other states that have considered the same or similar situation. See United States v. Murphy, 326 F.3d 501 (4th Cir. 2003) (determining the rule of lenity in interpreting Congress unit of prosecution for contempt dictated that the defendant s brief outburst constitute only one act of contempt); cases cited supra note 4. But see Jackson v. Bailey, 605 A.2d 1350, 1357 (Conn. 1992) (stating that using temporal proximity to co mpress thre e contem pts into one p roduces a n unreaso nable result). O n this record, howev er, the judge acted prop erly and reason ably by finding Petitioner in contempt only once for the initial onslaught of the final tirade and then quickly drawing the proceedings to a close. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER. (...continued) him in the courtroom; and (3) he or she must be allowed to return as soon as he or she is willing to cond uct him - or hers elf app ropriate ly. Id. at 343, 90 S.Ct. at 1060-61. 14

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