State v. Arnold

                                     765

       Argued and submitted January 30, 2019, reversed and remanded
                             March 11, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     DAVID RAY ARNOLD,
                      Defendant-Appellant.
                   Umatilla County Circuit Court
                      17CN05112; A166303
                                 

     Defendant appeals a judgment of summary contempt. The trial court found
defendant, who appeared in court via live video stream, in contempt after the
prosecutor informed the court that defendant had “flipped off” the camera. The
court acknowledged that it had not seen defendant’s conduct but reasoned that
summary contempt could be imposed as long as the court could substantiate what
had happened. The court then swore in the prosecutor as a witness to testify to
what he had seen and, based on that testimony, found defendant in contempt
without giving defendant an opportunity to confer with counsel off the record,
call witnesses, or cross-examine the prosecutor. Defendant argues that the court
erred by summarily finding defendant in contempt, because the trial court did
not personally observe defendant’s conduct, and thus the contemptuous conduct
was not within “the immediate view and presence of the court,” as required by
ORS 33.096. The state does not respond on the merits but argues, first, that any
error was unpreserved and, further, that any error was harmless. Held: First,
defendant’s argument was preserved. Second, the trial court erred in finding
defendant summarily in contempt, because defendant’s conduct was not within
the court’s immediate view and presence. Accordingly, defendant was entitled to
the usual due process requirements. Lastly, the error was not harmless, because,
under the circumstances, the lack of due process safeguards afforded to defendant did not have little likelihood of affecting the verdict.
   Reversed and remanded.



   Jon S. Lieuallen, Judge.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public Defense
Services.
   Kirsten M. Naito, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
E. Nani Apo, Assistant Attorney General.
766                                     State v. Arnold

  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
  SHORR, J.
  Reversed and remanded.
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 (2020)                             767

        SHORR, J.
        Defendant appeals from a judgment of summary
contempt, ORS 33.096, assigning error to the trial court’s
finding of summary contempt based on conduct that the
court did not personally observe. We conclude that the court
erred by summarily finding defendant in contempt because
defendant’s misconduct was not within “the immediate
view and presence of the court,” as required by ORS 33.096.
Accordingly, we reverse and remand.
         The relevant facts are uncontested. Defendant
appeared by live video feed from jail during a sentencing
hearing for convictions in three separate but “interrelated”
cases. During that hearing, the trial court revoked defendant’s probation and sentenced him to 45 months’ and
90 days’ incarceration, to be served concurrently. Defendant
told the court that he intended to appeal the sentence
because he found the sentence to be “cruel and unusual”
and in violation of “the double jeopardy clause.” At the relevant time discussed below, the judge was not looking at the
live video feed while responding to defendant. At that point,
the prosecutor observed defendant “flipping off” the camera.
The following colloquy ensued:
      “[PROSECUTOR]: Your Honor, he just flipped you the
   bird and walked away.
      “DEFENDANT: No, you. I flipped you the bird.
      “[PROSECUTOR]:     Flipped me the bird.
      “THE COURT: Well, you’re in court, Mr.—
      “DEFENDANT: That’s for the district attorney. The
   bird’s for the district attorney.
      “THE COURT: Okay.
      “DEFENDANT: Bye.
      “[DEFENSE COUNSEL]:       [Defendant]—
       “THE COURT: So, [defendant], that’s going to—you’re
   in the courtroom.
      “DEFENDANT: Not no more.
768                                               State v. Arnold

        “THE COURT: I guess, just technically, I did not see
   it. I mean, I wasn’t looking at him at the time. I don’t think
   I can—
      “[DEFENSE COUNSEL]: I didn’t see it either, honestly.
   I was looking at the judgment.
      “THE COURT: I guess I could review the replay. I
   heard you say it, but I was looking over this way and down.
       “[PROSECUTOR]: I think his admission that it was
   for the district attorney was pretty plain.
       “THE COURT: Let me sign this other matter here
   first.”
By the end of that colloquy, defendant had left the live video
feed location.
         The trial court then explained that, in its view,
defendant’s admission that he had flipped off the prosecutor in court, “even though it’s from the jail, is sufficient for
a summary contempt.” The court asked if defense counsel
would like to be heard on that issue. Defense counsel stated
that he preferred for defendant to be present before the
camera, “just so he knows what’s going on.” The court then
ordered the deputy to bring defendant back in front of the
camera.
         The deputies returned defendant to the live video
feed, and defense counsel conferred with defendant in open
court while the prosecutor and judge were present. Defense
counsel advised defendant “to remain cool and collected and
composed,” and then informed defendant that the judge was
contemplating imposing summary contempt for defendant’s
earlier conduct.
         Defense counsel explained to the court that defendant was probably feeling “frustrat[ed]” and “abandoned”
after being sentenced to 45 months in prison and asked the
court to “graciously excuse the frustration that I guess was
exhibited by [defendant] in a moment of passion … [and]
not impose a summary contempt.” The court asked defendant if he would like to say anything, to which defendant
responded, “My attorney has it on the nose, I guess.” The
court then asked the prosecutor if the state would like to
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respond. The prosecutor stated that he would “leave it up to
the court’s discretion,” but that “there needs to be some sort
of a consequence.”
        The trial court then recited its understanding of the
facts and the law regarding summary contempt before ultimately concluding that defendant had committed conduct
that could be punished by summary contempt:
        “I was not looking at the screen. When I look forward
   or down, I don’t see the screen. I have screens off to my
   peripheral, more or less, at my ears. I did not see anything.
   … [T]he prosecutor brought up that he’s flipping off the
   court. [Defendant] responded that, no, I’m flipping off you,
   referencing the prosecutor. And then there’s a couple statements, and he left the screen upset.
      “…
       “Regardless, [defendant], this is a courtroom, even when
   you’re [out] there. If I allow you to flip off anybody in the
   court, flip me off, people yell names at me, then we would
   have chaos. And so summary contempt is more or less in the
   presence of the court. You were in the courtroom. I do have
   a little bit of concern that I didn’t see it, and I put that on
   the record, but [the prosecutor] said he did see it. You have
   acknowledged it. And I think the presence means within
   the purview or the court could see it. I don’t think I have to
   see it. If I have my back turned, if I’m getting a thing and
   someone keeps—I guess is flipping me off or someone else
   in the courtroom, I believe I have the—as long as I can substantiate that that did happen in the courtroom when I was
   present during the court time, it is punishable by summary
   contempt. That’s the position I’m going to take.”
         The trial court then swore the prosecutor in to testify under oath. The court asked the prosecutor if he had
observed defendant “flipping off the camera, which appears
into the court,” to which the prosecutor responded affirmatively. The court summarily found defendant in contempt
and imposed a sanction of 30 days in jail to be served consecutively to defendant’s 45-month prison sentence.
        On appeal, defendant assigns error to the trial court
finding him in contempt. Specifically, defendant argues that
the summary contempt procedure authorized by ORS 33.096
770                                              State v. Arnold

was inappropriate under the circumstances here because
the conduct was not within “the immediate view and presence of the court,” as ORS 33.096 requires for the summary
imposition of sanction for contempt. Accordingly, defendant
argues, the court imposed a punitive sanction without providing defendant the requisite procedural due process safeguards, such as notice and a fair hearing.
         The state does not respond on the merits. Instead,
the state contends that defendant’s argument is unpreserved
and that this court should decline to exercise our discretion
to correct any plain error. The state argues that we should
not exercise our discretion because the policies behind the
preservation rule were not served and because the alleged
error was harmless.
          We first address the state’s contention that defendant’s claim of error was not preserved. As a general rule,
we will not consider a claim of error unless it was preserved
in the trial court. State v. Wyatt, 

, 

 (2000); ORAP 5.45(1). To preserve an error for appeal, a
party must have provided the trial court “with an explanation of his or her objection that is specific enough to ensure
that the court can identify its alleged error with enough
clarity to permit it to consider and correct the error immediately, if correction is warranted.” Wyatt, 

.
   “The touchstone for determining whether a contention is
   adequately preserved is whether the policies that underlie
   the preservation requirement—giving the opposing party
   a fair opportunity to respond, fostering appellate review
   through full development of the record, and giving the trial
   court the opportunity to fully consider and rule in the first
   instance—have been served in a particular case.”
State v. Ames, 

, 

 (2019) (citing State v. Parkins, 

, 

 (2009));
Peeples v. Lampert, 

, 

 (2008)).
         Defendant contends that his argument regarding
the trial court’s construction of ORS 33.096 is preserved
because the court expressly noted the issue when it stated
that it had “a little bit of concern that [it] didn’t see” defendant’s conduct and because the trial court fully considered
the legal issue before us, namely, whether he had to “view”
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defendant’s misconduct to proceed with summary contempt.
Accordingly, the court considered that particular issue and
had a fair opportunity to correct its error, and the state had
an opportunity to respond. Thus, defendant argues, the policies underlying the preservation requirement were served
in this case.
         We agree. As noted, the trial court sua sponte raised
the issues that defendant now raises on appeal and ruled
that, as long as the court could “substantiate that [defendant’s alleged conduct] did happen in the courtroom when I
was present during the court time, it is punishable by summary contempt. That’s the position I’m going to take.” The
state had an opportunity to raise any additional arguments,
and the record is sufficiently developed for our review of the
matter. We, therefore, conclude that the policies underlying
the preservation requirement were served under the circumstances here, and that defendant’s argument is preserved.1
See Ames, 

 (concluding that a matter
was preserved when the policies underlying the preservation requirement were “obviously served”); State v. Roberts,

, 

 (2018) (concluding that
an issue was preserved when the court raised the issue sua
sponte, even though the defendant “did little to advance that
discussion”); State v. Smith, 

, 

 (2012), rev den, 

 (2013) (concluding that an
issue was preserved because “[t]he court raised, the state
addressed, and the court ruled on the particular argument
that the state now contends is unpreserved”).
         We turn next to the merits of defendant’s appeal.
The parties’ arguments require us to construe the phrase
“in the immediate view and presence of the court” contained
in ORS 33.096. That statute provides:
       “A court may summarily impose a sanction upon a person who commits a contempt of court in the immediate view

    1
      The state argues that, although the trial court raised the issue that the
court had not seen defendant’s conduct, the court did not precisely address the
due process arguments that defendant raises on appeal. That argument is without merit. Summary contempt is an inherent exception to the usual requirements
of due process. 302 Or App at 775-76. Therefore, the trial court’s consideration of
whether summary contempt was permissible included a consideration of whether
additional due process was required. See id.
772                                                            State v. Arnold

    and presence of the court. The sanction may be imposed for
    the purpose of preserving order in the court or protecting
    the authority and dignity of the court. The provisions of
    ORS 33.055 and 33.065 do not apply to summary imposition of sanctions under this section.”
(Emphasis added.) To determine the meaning of a statutory
term, we first examine the text of the statute, in context,
and consider any legislative history that is helpful; if the
meaning of the term remains ambiguous, we then resort to
maxims of construction. State v. Gaines, 

, 171-
72, 

 (2009). When particular terms are not
statutorily defined, we give them their “plain, natural, and
ordinary meaning” unless the text or context indicates
that the legislature intended some other meaning. State v.
Cunningham, 

, 

 (1999).
Context includes prior versions of the statute, Jones v.
General Motors Corp., 

, 

 (1997),
as well as the preexisting common law and statutory framework within which the law was enacted, City of Salem v.
Salisbury, 

, 

 (2000), rev den, 

 (2001).
         ORS 33.096 governs the exercise of an Oregon
court’s inherent power to punish for “direct” contempt,2 and
preserves “the decades-old rule that the authority of the
court to punish a contempt summarily—that is, by court
order without presentation of an accusatory instrument
or affidavit—exists only if the offender commits the contempt ‘in the immediate view and presence of the court.’ ”
Barton v. Maxwell, 

, 

 (1997).
The Oregon Supreme Court has stated that “the phrase ‘in

    2
      Contempt of court is defined, among other things, as willful “[m]isconduct in the presence of the court that interferes with a court proceeding or with
the administration of justice, or that impairs the respect due the court.” ORS
33.015(2)(a). The common law distinguished between “direct” and “indirect” contempt. Barton v. Maxwell, 

, 

 (1997). A contempt was
direct if it occurred in the immediate view and presence of the court “while sitting in a judicial capacity.” 

. “The power of a court to punish for direct
contempt in a summary manner is inherent in all courts, and [it] arises from the
necessity of preserving order in judicial proceedings.” City of Klamath Falls v.
Bailey, 

, 

 (1979) (citing Rust v. Pratt, 

,

 (1937)). See generally State v. Baker, 

, 

 (1994) (the legislative history of ORS 33.096 “demonstrates that the traditional distinctions [between direct and indirect contempt] were to be continued”).
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 (2020)                             773

the immediate view and presence of the court’ confines the
court’s authority, in summarily punishing a contempt, to
misconduct that occurs in the court’s immediate presence
when the court is in session during a judicial proceeding.”
Id. at 79 (emphasis in original). See id. (holding that the
defendant’s contemptuous conduct—filing a motion in violation of the court’s order—was not in the court’s immediate
view and presence because it did not occur during a judicial
proceeding and the court did not have personal knowledge of
the defendant’s conduct); State v. Ferguson, 

, 

 (2001) (holding that the defendant’s contemptuous conduct—making a factual misrepresentation to
the court—was not in the court’s immediate view and presence because “the court acquired its asserted knowledge by
personally observing the hallway outside the courtroom, off
the record, while in recess”).
         The ordinary meaning of the phrase “in the immediate view and presence of the court” would likely include
a requirement that the court actually see the conduct.
Legislative history supports that understanding. At a committee hearing during the statute’s original enactment, legislative counsel explained to the committee that sanctions
for summary contempt can be imposed “when the person
who commits the contempt of court does it in the immediate view and presence of the court. That’s the first thing. It
has to be right in front of the judge. He has to see it.” Tape
Recording, Senate Committee on Judiciary, SB 376, Feb 6,
1991, Tape 21, Side A (statement of David Heynderickx,
legislative counsel) (emphasis added). However, as we have
previously acknowledged, the legislature likely did not
contemplate the technological advancements that today
enable telephonic hearings and video conferencing in courtrooms when the legislature enacted ORS 33.096. State v.
Blackburn, 

, 

 (2017). We
have, therefore, previously construed “immediate view and
presence” more broadly to encompass such circumstances.
         For instance, in Blackburn, the issue was whether
a defendant who repeatedly disobeyed a court’s direction
to stop interrupting the court had committed contempt in
the immediate view and presence of the court when the
defendant appeared by telephone. We concluded that the
774                                           State v. Arnold

requirement that the contempt occur in the immediate view
and presence of the court “embraces contemptuous conduct
by telephone that occurs during a court proceeding while
the court is in session, at least where the disruptive effects
are apparent in the courtroom.” 

 Although the court
did not see the conduct—because the defendant appeared
telephonically—the court nevertheless personally observed
its effects on the hearing. The defendant ignored the court’s
repeated instructions over the telephone directing defendant
to stop interrupting the court. The court personally heard
the contemptuous conduct. On that basis, we held that the
defendant’s conduct occurred in the court’s immediate view
and presence, and accordingly the defendant could be summarily punished under ORS 33.096.

         We reach the opposite conclusion here: Defendant’s
conduct did not occur in the immediate view and presence
of the trial court. Defendant’s gesture took place while on a
live video feed during a judicial proceeding. Had the court
personally observed the conduct, there would be no question
that it had occurred in the immediate view and presence of
the court. However, the court acknowledged that it did not
see the conduct and had obtained its knowledge of defendant’s conduct only from the prosecutor and from defendant’s admission. To substantiate that defendant had done
what the prosecutor said he had done, the court needed to
swear in the prosecutor as a witness to testify to what he
had seen. Accordingly, the conduct for which defendant was
punished did not occur in the immediate view and presence
of the court.

         In such a case, a defendant must be afforded certain
statutorily and constitutionally required process. Barton,

 (“If misconduct occurs [outside the immediate view and presence of the court], the alleged contem- nor is entitled to the more detailed contempt procedures
described in ORS 33.055 (procedure for imposition of remedial sanctions) or ORS 33.065 (procedure for imposition of
punitive sanctions).”); see also ORS 33.096 (exempting the
summary imposition of sanctions for contempt committed
“in the immediate view and presence of the court” from the
process required for the imposition of remedial sanctions
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and punitive sanctions). Defendant here was entitled to the
required process.
        Our conclusion is in accord with the standard that
has been articulated by the United States Supreme Court
in regard to summary contempt. As we have observed,
“[b]ecause the inherent power to summarily punish a direct
contempt is subject to constitutional limits, the pronouncements of the United States Supreme Court on that issue are
instructive.” State v. Spainhower, 

, 

 (2012). In that regard, the Court has stated:
       “Except for a narrowly limited category of contempts,
   due process of law … requires that one charged with contempt of court be advised of the charges against him, have
   a reasonable opportunity to meet them by way of defense or
   explanation, have the right to be represented by counsel,
   and have a chance to testify and call other witnesses in his
   behalf, either by way of defense or explanation. The narrow
   exception to these due process requirements includes only
   charges of misconduct, in open court, in the presence of
   the judge, which disturbs the court’s business, where all of
   the essential elements of the misconduct are under the eye
   of the court, are actually observed by the court, and where
   immediate punishment is essential to prevent demoralization of the court’s authority before the public. If some essential elements of the offense are not personally observed by
   the judge, so that [he or she] must depend upon statements
   made by others for [his or her] knowledge about these essential elements, due process requires … that the accused be
   accorded notice and a fair hearing as above set out.”

In re Oliver, 

, 

, 

(1948) (internal quotation marks and ellipses omitted;
emphases added). A court’s authority to forgo the usual due
process requirements and summarily punish contemptuous conduct that occurs in the courtroom must therefore be
based on the court’s personal knowledge of the conduct. See,
e.g., Johnson v. Mississippi, 

, 

,

 (1971) (court was not “personally aware” of
contemptuous conduct when bailiffs and deputies immediately brought the defendant before the judge and related to
the judge that the defendant had disobeyed the court’s order
to keep the space reserved for jurors and county officers and
776                                           State v. Arnold

the judge clear while jurors were being called). Here, the
court’s knowledge of the facts was based on the representation of the prosecutor and defendant’s admission, not the
court’s personal knowledge. Accordingly, the court erred in
finding defendant summarily in contempt.
         This conclusion is not to suggest that trial courts
lack authority over their courtrooms in these circumstances
to hold a party in punitive contempt. See ORS 33.065(4)
(stating that a prosecutor, on his or her own initiative or
at the request of a party or the court, may initiate punitive
contempt proceedings). Such proceedings, however, must
commence through an accusatory instrument and continue
with the procedural protections provided to a defendant
under ORS 33.065. See, e.g., ORS 33.065(6) (stating that,
“[e]xcept for the right to a jury trial, the defendant is entitled to the constitutional and statutory protections … that
a defendant would be entitled to in a criminal proceeding”
that could result in an equivalent fine or imprisonment).
         The state contends that any error that the trial
court made in its summary imposition of sanction was
harmless because defendant was afforded the due process
of law. The state argues that the only procedural protection
not afforded to defendant was the filing of a formal accusatory instrument required by ORS 33.065(2) to (5), but that a
failure to file a formal accusatory instrument does not render the process inadequate. See State v. Murga, 

, 

 (2018) (holding that the lack of an accusatory instrument did not deprive the court of subject matter
jurisdiction).
         We first disagree with the state that the only procedural safeguard lacking here was a formal accusatory
instrument. After defendant was brought back before the
video feed, he was informed by his attorney that the court
was considering imposing summary contempt. Defendant
was not afforded an opportunity to confer with his counsel
outside of the presence of the court and prosecutor. Although
defendant and his attorney were both given an opportunity
to speak, defendant did not have an opportunity to call witnesses or an opportunity to cross-examine the prosecutor,
who had been sworn in as the court’s witness. The court
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asked the prosecutor one question—whether he observed
defendant “flipping off the camera”—and then proceeded
immediately to find defendant in contempt. Oregon’s harmless error test “consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?” State
v. Davis, 

, 

 (2003). We cannot say,
under the circumstances of this case, that the trial court’s
error in refusing defendant the usual procedural safeguards
afforded a contemnor under ORS 33.055 and ORS 33.065
had little likelihood of affecting the verdict.
         Reversed and remanded.