215
Argued and submitted December 10, 2019, affirmed September 1, 2021, petition
for review denied January 20, 2022 (369 Or 209)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA FITZGERALD,
Defendant-Appellant.
Harney County Circuit Court
18CN03750; A168732
498 P3d 328
Defendant appeals a judgment of summary contempt, arguing that the trial
court erred in holding him in contempt for exercising a constitutional right. At
an arraignment hearing, the court was setting security amounts on defendant’s
current charge and also on two pending felony charges where conditional release
had been revoked. The court was discussing an early trial date up with counsel when defendant interrupted and said that he wanted to fire his lawyer. The
court asked defendant to calm down, but defendant explicitly refused to follow
the court’s request and again said that he wanted to fire his lawyer. The court
held defendant in contempt for an “uncalled outburst” that disturbed the orderly
conduct of the proceedings and imposed a 15-day sentence for the contempt.
Held: Defendant’s assignment of error regarding the summary contempt judgment was not preserved. Even assuming the issue was preserved, the record supports the trial court’s finding that it was holding defendant in contempt because
of his outburst at the hearing, not because of the subject matter of his request.
Affirmed.
Lung S. Hung, Judge.
Kyle Krohn, 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.
Daniel Norris, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Mooney, Presiding Judge, and Egan, Chief Judge,
and Kistler, Senior Judge.*
______________
* Kistler, S. J., vice DeHoog, J.
216 State v. Fitzgerald
KISTLER, S. J.
Affirmed.
Cite as 314 Or App 215 (2021) 217
KISTLER, S. J.
Defendant appeals a judgment of summary contempt, arguing that the trial court erred in holding him in
contempt for exercising a constitutional right. Defendant
misperceives the basis for the trial court’s contempt ruling.
The court found defendant in contempt for the disruptive
way in which he expressed his request; it did not find him in
contempt for exercising a constitutional right. We affirm the
trial court’s judgment.
Defendant appeared for arraignment in Harney
County on a third-degree theft charge. The trial court
appointed a lawyer to represent defendant and asked the
state for its position on release pending trial.1 The state
responded that it did not oppose a standard conditional
release. It noted, however, that it had filed motions to revoke
defendant’s conditional release on two pending felony
charges. Defendant’s counsel observed that the new third-degree theft charge appeared to be the only basis for revoking defendant’s release on the pending felony charges, and
he asked the court to “keep [defendant’s] existing releases
[in effect] on the two older matters.”
The trial court focused initially on the third-degree
theft charge. When asked for his position on release, defendant “promise[d]” that, if he was released on all three
charges, he would not do “anything wrong from now until
the 20th when I have a court date.” The trial court followed
the state’s recommendation on the third-degree theft charge
and ordered defendant conditionally released on that charge.
It noted, however, that it had already signed orders revoking
defendant’s release on the two pending felony charges. The
court accordingly held hearings in those two cases to set a
security amount on both charges. At that point, defendant’s
lawyer suggested that, if the court was going to revoke defendant’s release on the two felony charges and set a security
amount, it should set a security amount on the third-degree
theft charge as well so that defendant could get credit for
time served on all three charges. Defense counsel, however,
1
At the hearing, the trial court appeared by video, and defense counsel
appeared by telephone. Defendant and the deputy district attorney apparently
appeared in person in the court room.
218 State v. Fitzgerald
reiterated his view that defendant should be conditionally
released on all the charges.
In response to a question from the court, defendant
asked, “Am I staying in custody or am I being released?”
The court responded, “Well, I’m going to make that decision right now. So is there anything else you wish to say?”
Defendant explained that he had dogs at home that “aren’t
being taken care of right now because I’m not out.” He again
promised to comply with the judge’s orders and said that, if
he were released on all three charges, “You will not see my
face again, I promise, Your Honor, until these court dates.”
Having considered defendant’s request for conditional release on all three charges, the court declined to
set aside its earlier orders revoking defendant’s release on
the felony charges; instead, it set a security amount on the
third-degree theft charge at $5,000 and on the two pending felonies at $25,000. The court explained that “[t]he total
security will be 30,000 - 3,000 cash on all three cases combined.” The court added that, if defendant posted security,
he needed to avoid any contact with the alleged victims
pending trial.
The following colloquy then occurred:
“[DEFENDANT]: Your Honor, I’m not on probation or
anything for any of these cases. I mean, I’m not on probation at all.
“THE COURT: Okay.
“[DEFENDANT]: I haven’t been in trouble at all.
These are all allegations against me.
“THE COURT: I understand that, Mr. Fitzgerald.
“[DEFENDANT]: So, I mean, do you understand that
I was really pleased that I would be released.
“THE COURT: Well, I’ve made my decision Mr. Fitzgerald.
You’ve had an opportunity to speak.”
The court then asked defense counsel whether he
wanted to keep the trial date currently set for the two felony charges, and defense counsel explained that, because
defendant had been reduced to custody, he would try to
Cite as 314 Or App 215 (2021) 219
“coordinate an earlier [trial] date” but that he needed to
check his schedule to see which dates would be available.
As defense counsel and the court were talking, defendant
interjected:
“[DEFENDANT]: I want to fire my attorney too.
“THE COURT: Mr. Fitzgerald, you need to calm down,
okay?
“[DEFENDANT]: No, I don’t need to calm down. I
want to fire my attorney, please.
“THE COURT: Okay, Mr. Fitzgerald, I’m going to find
you in contempt of court. I’m going to order that you serve
an executed sentence. You need to stop this, Mr. Fitzgerald.”
The court asked the court staff to prepare an order
reflecting its contempt ruling and then returned to its earlier discussion with defense counsel regarding setting an
earlier trial date. Defense counsel reiterated that he would
“contact the Court to see if we can coordinate for an earlier
[trial] date.”
At no point did defense counsel object to the trial
court’s contempt ruling or suggest that his client’s in-court
behavior did not warrant it. Later that day, the trial court
signed a summary contempt judgment that stated as follows:
“Description of event that occurred in the immediate view
and presence of the court: Uncalled outburst that disturbed
the orderly conduct of the proceedings.” The amended judgment ordered that defendant serve a 15-day sentence for the
contempt.
On appeal, defendant argues that the trial court
found him in contempt for exercising his constitutional right
“to fire his court-appointed counsel.” That is, he argues that
the court found him in contempt for the substance of his
request, not the manner in which he made it. At no point,
however, did defense counsel object that the trial court was
finding defendant in contempt for asking to fire his counsel,
nor did defense counsel object on the ground that his client’s
behavior did not warrant finding him in contempt. The state
notes that neither defendant nor defense counsel raised any
objection to the trial court’s contempt finding, and it argues
that the issue is not preserved.
220 State v. Fitzgerald
Defendant does not dispute that he may challenge
the trial court’s contempt finding on appeal only if he preserved his objection below. See Peeples v. Lampert, 345 Or
209, 219-21,
191 P3d 637 (2008) (discussing preservation
requirement). He argues, however, that raising an objection to the court’s contempt finding would have been futile
because the court would not listen to anything he said. We
question the premise of defendant’s argument. The record
shows that the trial court, while firm, was courteous to
defendant throughout the hearing, and it does not suggest
that the court would have refused to consider an appropriately voiced objection from defendant.
More importantly, even if defendant could not be
expected to raise an objection, defense counsel could have
objected if counsel believed that defendant’s manner of
expressing himself did not warrant a contempt sanction or
if, as defendant now argues on appeal, counsel believed that
the court was holding defendant in contempt for asserting
a constitutional right. See State v. Phillips, 234 Or App 676,
681-82,
229 P3d 631, adh’d to as modified on recons,
236 Or
App 461, rev den,
349 Or 370 (2010) (stating that proposition).2 Defense counsel, however, did not raise any objection
to the court’s ruling, and nothing in the record suggests
that the court would not have considered defense counsel’s objection if he had raised one. Indeed, after the court
held defendant in contempt for his outburst, the court and
defense counsel resumed what appears from the record to
be a respectful discussion about expediting defendant’s trial
2
Defendant argues on appeal that, once he said that he wanted to fire his
attorney, his request automatically disabled his attorney’s obligation and ability to represent him. The effect, however, of a request to “fire” counsel can vary
depending on whether defendant was seeking to represent himself or whether he
was asking the court to appoint a different counsel. Moreover, even if defendant
were seeking to represent himself, defendant never explains why his counsel’s
obligation to him did not continue until the trial court confirmed that defendant
was knowingly waiving his right to be represented by counsel and choosing to be
self-represented after being advised of the potential pitfalls of doing so. Finally,
we note that, as a practical matter, defense counsel continued to represent defendant after defendant asked to fire him and after the court held defendant in
contempt. After those events occurred, defense counsel continued his discussion
with the court about finding an earlier trial date that would fit the court and
counsel’s schedule. Counsel apparently did not perceive that defendant’s request
to fire him automatically ended his responsibilities to represent defendant. We
accordingly conclude that defense counsel’s failure to object matters.
Cite as 314 Or App 215 (2021) 221
date. The issue that defendant now seeks to raise on appeal
was not preserved at trial.
However, even if we assume that defendant preserved the issue, his argument fails on the merits. Defendant’s argument on appeal rests on the premise that the
trial court held him in contempt simply because he asked
to discharge his attorney, and he devotes almost all of his
appellate brief to explaining why he had a constitutional
right to make that request. The difficulty with defendant’s
argument is its premise. The trial court’s judgment states
that the court held defendant in contempt for an “[u]ncalled
outburst that disturbed the orderly conduct of the proceedings.” That is, the court did not hold defendant in contempt
based on the substance of his request; it held him in contempt based on the manner in which he said it.
Defendant’s appellate brief never addresses the
trial court’s finding. The closest his brief comes to doing so
is a footnote, which states:
“If the trial court had intended to hold defendant in contempt for something other than his request to fire his attorney, the record does not reveal what that something might
be. Consequently, the record cannot justify the contempt
sanction on any other basis.”
Contrary to defendant’s argument, the record reveals why
the trial court held defendant in contempt; the court stated
that it held defendant in contempt for an “[u]ncalled outburst that disturbed the orderly conduct of the proceedings.”
We cannot say that the record does not support that
finding. Rather, the record shows that, after the trial court
had adhered to its decision to revoke defendant’s release
on the two pending felony charges and was discussing setting an earlier trial date with defense counsel, defendant
interjected, “I want to fire my attorney, too.” The trial court
responded, “Mr. Fitzgerald, you need to calm down, okay?” As
the trial court’s contemporaneous description of defendant’s
behavior evidences, defendant was not speaking in a calm
or appropriate manner. Significantly, defendant responded,
“No, I don’t need to calm down, I want to fire my attorney,
please.” (Emphasis added.) The trial court reasonably could
222 State v. Fitzgerald
find that the emphasized statement not only confirmed that
defendant was not acting appropriately but that defendant
did not intend to comply with the rules that govern everyone’s behavior in court.
To be sure, the transcript does not capture the tone,
volume, or pace of defendant’s words, nor does it reflect the
tone, volume, or pace of the court’s statements. And we
appreciate that the phrase “you need to calm down” can be
used in a dismissive way without regard to the content of
what the speaker says.3 However, defendant’s lawyer never
raised any objection at trial to the court’s actions; specifically, he did not argue that the court’s characterization of
defendant’s actions was inaccurate or its imposition of a contempt sanction unwarranted. We conclude from the defense
lawyer’s failure to raise any objection and the court’s
respectful behavior towards defendant throughout the rest
of the hearing that defendant’s behavior towards the court
was inappropriate.
We recognize that the record in this case is thin.
However, that stems in large part from the absence of any
objection. Had defense counsel objected that contempt was
unwarranted because his client was behaving appropriately,
the court could have reconsidered its ruling, or it could have
explained with greater specificity what defendant was doing
that disrupted the proceedings. However, in the absence of
an objection, putting those details on the record would have
served little purpose other than to demean defendant, and
the court appropriately focused its attention on the orderly
completion of the hearing. Put differently, defendant can
hardly argue that the transcript fails to reveal the full
extent of his misconduct when a timely objection would
have put the trial court on notice that it needed to specify
the details that defendant now claims are missing. With no
objection from defense counsel, we cannot say that the trial
court erred.
Affirmed.
3
An analysis of the entire conversation including the words and the unspoken features of those words, the context in which the conversation occurs and
the relational dynamics of those speaking is necessary to understand what has
actually been said and what has transpired. Without an objection, the transcript
provides a poor means for untangling those issues.
