Jerry Paul v. Robert Pleasants, Etc., North Carolina Civil Liberties Union Foundation, Inc., Amicus

K. K. HALL, Circuit Judge:

Jerry Paul, a North Carolina attorney, and appellant, was lead defense counsel in the highly publicized murder prosecution of Joan Little, a young black accused and acquitted of murdering her middle-aged white jailor. Following the acquittal, the trial judge held appellant in contempt of court and sentenced him to serve fourteen days in jail for conduct which occurred during the course of jury selection.

Appellant promptly sought habeas corpus relief in the Wake County Superior Court, but relief was denied. The Court of Appeals of North Carolina granted review but affirmed the decision below. In re Paul, 28 N.C.App. 610, 222 S.E.2d 479 (1976). The North Carolina Supreme Court denied discretionary review. In re Paul, 289 N.C. 614, 223 S.E.2d 767 (1976).

Concurrent with the state appeals, appellant had filed and, following the denial of the state appeal, pressed his application for a writ of federal habeas corpus pending in district court in the Eastern District of North Carolina. The federal habeas corpus application asserted the same errors which were set forth but rejected in the state appeals. Relief was denied on May 12, 1976, a certificate of probable cause to appeal was granted, and this appeal followed.

Appellant sets forth four grounds for reversal, namely: (1) his conduct during voir dire was noncontemptuous and constitutionally protected; (2) assuming his conduct was contemptuous, he did not receive adequate notice and an opportunity to be heard prior to sentencing in violation of due process; (3) a hearing should have been held prior to a determination that the conduct was found to be contemptuous; and (4) the contempt matter should have been referred to a different judge for disposition. Not assigned by appellant on appeal here and raised only by amicus curiae and therefore deemed abandoned was the contention that N.C.G.S. § 5-1(1), the contempt statute, was unconstitutional. We affirm.

I.

THE CONTEMPT

On July 14, 1975, prior to the individual examination of the prospective jurors on voir dire, the trial judge specifically admonished appellant against vocally continuing to object in a critical fashion once the court had ruled on a particular matter. See: In re Paul, 28 N.C.App. 610, 222 S.E.2d 479, 480 (1976). Nevertheless, on July 15, 1975, during the individual examination of a prospective juror, appellant, who already had spent extensive time on voir dire, persisted in objecting to what he believed to be an unwarranted narrowing of the scope of the admittedly non-traditional voir dire when certain state objections were sustained. The trial court noted that defense counsel had made an adequate record for appellate purposes, suggested he move to continue his broad “non-traditional” method of voir dire, which was done, and the court thereafter denied the motion.

Appellant still persisted in criticizing the court’s ruling asserting that the court was biased, that the court’s ruling made no sense and that the judge was deliberately favoring the state. Appellant concluded as .follows:

MR. PAUL: And at this point we ask your Honor to recluse [sic] yourself because I don’t think you are capable of giving Joan Little a fair trial and I don’t intend to sit or stand here and see an innocent person go to jail for any reason and you can threaten me with contempt or anything else, but it does not worry me.

COURT: All right, you got that in the record.

MR. PAUL: And to sit there and say like the queen of hearts off with the heads because the law is the law is to take us back a hundred years.

COURT: All right.

MR. PAUL: And we intend to ask these questions. Now your Honor, they can object and you can sustain, but we intend to keep on asking the questions and in order for the appellate court to rule whether or not they were proper questions we have to ask the questions. It is apparent I’m quite disgusted with the whole matter, whole matter of ever bringing Joan Little to trial anyway.

There has been one roadblock after another and one attempt after another to railroad Joan Little and I am tired of it. Now we intend to ask these questions and you can sustain the objections if you want to but the appellate court cannot make a ruling on whether or not they were proper questions unless the questions are asked.

COURT: All right, you have said that twice. I haven’t said you couldn’t ask the questions.

MR. PAUL: And the appellate courts cannot make a judgment on whether or not the questions would have been relevant unless they get the witness’ answer into the record.

COURT: Well, I’ll pass on that. Are you through?

MR. PAUL: I’m through for the moment but not through for this trial.

The day after this incident, the court furnished appellant with a verbatim transcript of his remarks from the previous day and, on July 21,1975, advised appellant that he would be cited for contempt following the jury verdict. Appellant was informed that the contempt order was prepared on August 9,1975, and on August 12,1975, was told that the court would hear a statement from him following the jury charge. The court again informed appellant that the contempt citation would be issued after the verdict.

On August 15,1975, the court gave appellant the opportunity to speak on two occasions in his own behalf. First, after the jury was charged, the trial judge complimented all counsel including appellant who then presented a philosophical explanation to the court regarding non-violence and his strong emotional attachment to the case at bar. He candidly admitted his emotional state, his outspokenness, and his fervor for what he believed was correct. He did not deny the contemptuous statements.

The jury returned with its verdict and was discharged, whereafter the judge rendered his findings of fact and conclusions of law regarding the contempt. See In re Paul, 28 N.C.App. 610, 222 S.E.2d 479, 480-481 (1976) for a full recitation of the findings. The court then found that appellant had disregarded the court’s admonition not to continue to vocally criticize the court’s rulings once rendered, had addressed the court in a loud, angry, and disrespectful manner, and indeed had even turned his back to the court and addressed the news media in the courtroom in a loud voice when, as above-quoted, appellant analogized the court to the tyrannical queen in Alice in Wonderland. The court also found that the statements were made in a disruptive manner and were an apparent attempt to force the court to declare a mistrial.

The trial judge nevertheless assured appellant that he harbored no personal animosity towards him, but that the contempt citation was necessary to preserve courtroom decorum and gave appellant a second opportunity to address the court. This colloquy centered again on the emotion of the trial, and constituted virtual acquiescence by appellant in the likely incarceration to follow which he designated as a “badge of honor.”

[I] We agree with the Court of Appeals of North Carolina and the district court below that appellant’s conduct clearly exceeded the bounds of vigorous advocacy. The conduct would have been disruptive absent the self-restraint exercised by the court. Appellant had been expressly warned by the judge not to continue his vocal criticisms of the court’s rulings once rendered, yet persisted. We further agree with the Court of Appeals of North Carolina that the trial court did not “invite” appellant’s disrespect. Nothing indicates that the court “badgered” or “provoked” appellant. To the contrary, appellant quite clearly informed the court that it would not “worry him” to be held in contempt. See In re Paul, 28 N.C.App. 610, 618-619, 222 S.E.2d 479, 484-485 (1976).

Appellant contends that his conduct constituted vigorous and effective advocacy constitutionally protected by the First, Fifth, Sixth, and Fourteenth Amendments. He argues that when the trial judge announced he was “busting up” [i. e. terminating the broad voir dire examination] that he did nothing more than respectfully request reconsideration by the court of that adverse ruling. Appellant adds that his conduct was effective advocacy since the court partially reversed its ruling on the scope of voir dire allowing certain questions to at least be asked, but not answered.

We find no constitutional infirmity in the contempt citation. If the trial court’s ruling regarding the narrowing of the scope of permissible voir dire was unclear, the remedy was to seek clarification of the ruling at that time — not to continue to argue with the court after the ruling, express personal disgust with the very trial itself, and turn one’s back on the court to make speeches to the news media in a loud, disrespectful and angry voice. Conduct of this nature has long been expressly condemned. Maness v. Meyers, 419 U.S. 449, 458-459, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717 (1952); See also: ABA Standards Relating to the Administration of Criminal Justice, The Defense Function § 7.1(a), (c) and (d) (Approved Draft, 1971).

II.

DUE PROCESS

Appellant contends that even if his conduct was contemptuous he did not receive adequate notice of the charges against him nor an opportunity to be heard prior to sentencing in violation of due process. As above-noted, appellant was given a verbatim transcript of the remarks the court found objectionable, was informed twice when the contempt citation would occur, and was also informed of and twice exercised his right to address remarks to the issue of contempt. The final speech by appellant came after the court had made findings of fact and conclusions of law regarding the contempt. Appellant at no time quarreled with the court’s contempt finding, and at no time ever asked for a particularization thereof, but rather seemed to expect the citation and simply sought to justify it on a philosophical basis. Due process was satisfied. Taylor v. Hayes, 418 U.S. 488, 498-499, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). See also: In re Meckley, 137 F.2d 310 (3rd Cir. 1943).

III.

THE HEARING ISSUE

Appellant contends that where a direct contempt occurs in the presence of the court but the entry of the order is delayed until the conclusion of a trial, due process requires that a hearing be held prior to a determination that the acts in question are contemptuous. At most, appellant urges that he was accorded a hearing solely as to mitigation of punishment but not as to guilt or innocence.

As above-noted, appellant was given two opportunities to address the court regarding the contempt issue — after the jury retired, and then again after the verdict was returned and the court had rendered its findings of fact and conclusions- of law. At neither hearing did appellant deny what had occurred nor did he seek to controvert the facts found by the trial court. No denial was registered that the conduct constituted legal contempt. Appellant apparently was content to rely upon his philosophical arguments to the court.

Postponing the hearings held on appellant’s contempt citation until the conclusion of the trial coupled with notification of the charges against him and the dual opportunity given appellant to speak in his own behalf satisfied due process. A full scale trial was not required. Taylor v. Hayes, supra, at 498, 499, 94 S.Ct. 2697.

IV.

JUDICIAL DISQUALIFICATION

Appellant contends that the trial judge who found appellant in contempt had become “embroiled” in the controversy with appellant and was “prejudiced” against appellant since he had already found him. “guilty” of the contempt prior to any hearings held. Therefore, he argues it was er-' ror for the judge not to recuse himself.

Both the Court of Appeals of North Carolina and the district court below found no evidence that the trial judge was “embroiled” in a controversy with appellant nor was the trial judge “ . . . unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); In re Paul, supra, 222 S.E.2d at 484. Compare: Taylor v. Hayes, supra, 418 U.S. at 501-504, 94 S.Ct. 2697. To the contrary, the trial judge was not only unbiased but also was complimentary of appellant’s efforts at trial, commended him publically, and expressly based his contempt finding on the necessity for the preservation of “court decorum,” and then only after appellant had made two statements of his position for the record.

With regard to the asserted “prejudice,” under Taylor v. Hayes, supra, and Sacher v. United States, supra, a court may permissibly make a finding that a direct contempt occurred in the presence of the court, yet subject that finding to later reconsideration, as obviously occurred here when the contemnor exercises his right of allocution. We perceive no error in the conduct of the trial court.

The judgment of the district court is affirmed, and the case remanded to the district court for dissolution of the stay of execution of sentence.

AFFIRMED.