In a recent case, the defendant tore up a copy of his probation papers after his criminal trial. He was on trial for second-degree assault after hitting and kicking his girlfriend during an argument. After the guilty verdict, the girlfriend claimed financial hardship and said she wanted to be left alone. The defendant was sentenced to 10 years in prison with most of it suspended, plus three years probation.
He was given a probation order with standard conditions, including obeying all laws. A week later, the State petitioned to revoke his probation. The State based its request for revocation on ripping up his probation papers and making loud threatening statements about witnesses like, “She don’t know it, but she just signed her death warrant.”
The trial court revoked the defendant’s probation, finding him in contempt for ripping up the papers and making threats. An intermediate appellate court held that the ruling wasn’t clearly erroneous. The controlling statute did not require the threats be made directly to a witness or victim.
The appellate court considered whether an individual can be judged in contempt for behavior enacted near the exit door of the courtroom where there was no evidence that the proceedings were interrupted with it. It also considered whether the proscription against issuing threats to a victim or witness was violated even if a threat of retaliation was not made directly to the witness or with the intention of being passed along to the witness.
The appellate court explained that in order to revoke probation it had to be shown the probationer violated a condition of probation. The second question is whether the court should have used its discretion to revoke probation. On appeal, the court can look at whether there was a reasonable basis for revocation.
The appellate court explained there are two kinds of contempt: direct and constructive (with a civil and criminal type for each). Direct criminal contempt must be committed in the presence of the trial judge or close enough to him to disrupt the proceedings. Constructive contempt is any other type of contempt. Criminal contempt is meant to be punitive.
The parties agreed that if the paper ripping was contemptuous it was directly so. However, under the Rules of Court, when a trial judge doesn’t immediately impose sanctions, any later proceeding — such as the one here — must be conducted as a constructive contempt.
The appellate court explained that the lower court should have looked at whether the preponderance of the evidence supported the proposition that the defendant interrupted the court and the dignified conduct of its business. The paper-tearing incident in this case was insufficient to reach the level of contempt. Nor did the appellate court find that there was enough evidence the defendant acted willfully or violently or direct his action towards the judge. Rather he was exasperated.
The appellate court also found, however, that the threat need not be communicated to the witness or victim either directly or through another person. All that was necessary was: making a threat and intending to retaliate against the witness or victim.
However, the court also found that in this case, the defendant made statements that communicated the intent to hurt the victim/witness. The appellate court explained that the judge could have reasonably concluded that when he made those statements after his sentence was read, he intended to retaliate against the victim for her statement.
If you are arrested or charged with a crime, you should call a knowledgeable Maryland criminal defense attorney. We will develop the best strategy we can to defend your case. Contact us at 301-519-2801 or via our online form.
The Impact of a Defendant’s Signed Statement in Maryland, Maryland Criminal Lawyer Blog, October 12, 2013
Reasonable Grounds for Requiring a Blood Test in Maryland, Maryland Criminal Lawyer Blog, September 25, 2013