# Bethard v. District of Columbia > District of Columbia Court of Appeals · November 10, 1994 · 650 A.2d 651 URL: https://www.frixlaw.com/law-library/cases/9728925 ## Case - **Full name:** Richard Allen BETHARD, Appellant, v. DISTRICT OF COLUMBIA, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** November 10, 1994 - **Citations:** 650 A.2d 651; 1994 D.C. App. LEXIS 216; 1994 WL 659464 - **Precedential status:** Published - **Opinion:** Concurrence by King - **Judges:** King, Sullivan, Mack - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728925 ## How later opinions describe it (automated extraction) - noting that this court declined in In re Scott to reach the question whether order for drug test was proper based on the trial court’s observations of witness demeanor ## Opinion text KING, Associate Judge, concurring in the result: I agree that the order of contempt must be reversed, but not for the reasons stated by the majority. A brief recitation of the facts is in order. Bethard, having been charged with driving under the influence, appeared in the traffic court on the morning of April 17, 1992, for trial. The judge observed Bethard nodding off, and stumbling and falling over other people seated in the courtroom which the judge found disruptive. On two occasions the judge dispatched the deputy United States Marshal to “check on [Bethard’s] condition.” Efforts to locate Bethard’s counsel were unsuccessful and, “after defendant’s conduct became so disruptive that the court could not carry out its normal functions,” the judge ordered the deputy to place Bethard in custody. See Order of Contempt at 2. When counsel was eventually located, the judge informed counsel of Bethard’s behavior and that the court was “seriously considering holding the defendant in summary contempt.” Id. The judge also observed that Bethard did not appear to be in any condition to be of assistance to his counsel nor did he appear to be in any condition to even know what was going on in the courtroom. The court was forced to release the government’s witnesses in the case since defendant’s condition made it imprudent to proceed with the trial. Id. at 2-3. The judge then released Bethard, ordering him to submit to drug testing by the Pre-trial Service Agency, and to return in the afternoon after he had been tested. 1 Bethard and his counsel again appeared before the court in the afternoon session, and the judge began by reviewing the morning *658 events. Thereafter, a colloquy ensued, involving the court and counsel, concerning Bethard’s drug problems, culminating in the judge’s announcement that she found Be-thard to be in summary contempt. During this colloquy, on two occasions, while his attorney was speaking, Bethard asked to be heard, but was shushed by his counsel. On another occasion, after the prosecutor stated Bethard had been unable to go to trial on a previous court date, Bethard remarked, “That’s not true.” As noted, at the conclusion of the hearing, the judge found Bethard to be in summary contempt and, after giving Bethard an opportunity to allocute, imposed a thirty-day sentence. In her Order of Contempt, the judge based her finding on three separate grounds: (1) Bethard’s disruptive behavior in the morning session, (2) his inability to go to trial, and (3) his state of stupor after lunch, and his attempts “to verbally interrupt the court through the afternoon proceeding.” See Order of Contempt at 4. The judge concluded: “given the nature of the defendant’s condition, his conduct and his demeanor in the courtroom throughout the day, it is clear that defendant’s conduct was contemptuous.” The circumstances presented here are an all too common example of the difficulties encountered by trial judges faced with heavy case loads and disruptive, uncooperative participants in our busy trial courts. The case also demonstrates the many pitfalls facing a trial judge who attempts to use the summary contempt power to maintain order in the courtroom. This court, concerned that the summary contempt power not be misused, has imposed strict requirements on its exercise, which are intended to ensure that the contempt sanction is used sparingly. The majority has cited most of our cases dealing with summary contempt, and I will not repeat them here. Suffice to say that a trial judge imposing summary contempt must carefully dot every “i” and cross every “t” to ensure that his or her actions will be sustained by this court. Here, the judge repeated the error made by two of her colleagues in recent summary contempt cases we have decided. See, In re L.G., 639 A.2d 603 (D.C.1994); In re Kraut, 580 A.2d 1305 (D.C.1990). In both L.G. and Kraut , the trial court imposed summary contempt based on three separate incidents or grounds. In both cases we concluded that at least one of the grounds relied upon was unsupported by the record and, because the trial judge had not ruled that each incident standing alone was sufficient to constitute contempt, the summary contempt finding based on all three incidents could not stand. In short, the trial judges in those two cases considered the three incidents together as a single count of contempt, i.e., a “critical mass” of contemptuous behavior. L.G., supra, 639 A.2d at 607 . Since all three incidents were not supportable, the entire mass fell. The same is true here. I have no doubt that Bethard’s conduct in the morning session, i.e., the first incident, was sufficient to support a finding of summary contempt. Bethard left his seat on a number of occasions, stumbling over himself and others, and the deputy United States Marshal was twice dispatched to restore order. Eventually Bethard’s movements about the courtroom became such an intrusion that, in order to restore order, the judge had him placed in custody. Summary contempt is sometimes the only tool available to the trial judge “to preserve order in the courtroom for the proper conduct of business.... On such occasions the court must act instantly to suppress disturbance.” McCormick v. United States, 635 A.2d 347, 348 (D.C.1993) (citation omitted). On these facts the judge could have found Bethard’s conduct willful, and it would have been well within the proper exercise of judicial power for the judge to have then found Bethard in summary contempt on that basis. See Swisher v. United States, 572 A.2d 85, 87-88 (D.C.1990); see, Matter of Thompson, 454 A.2d 1324, 1327 (D.C.1982) (persistent conduct rises to level of “willful obstruction of the orderly administration of justice”); Matter of Schaeffer, 370 A.2d 1362, 1364 (D.C.1977) (willfulness may be inferred from conduct). Commendably, the judge chose to await the arrival of counsel before taking any formal action. After counsel finally appeared, the judge elected to proceed cautiously and determine *659 more about Bethard’s condition. She did conclude, however, that Bethard was in no condition to proceed to trial; that determination was not disputed by trial counsel and has not been challenged in this court. Be-thard’s inability to proceed to trial served as the second ground for the contempt citation. Outright failure to appear for trial can constitute contempt, Campbell v. United States, 295 A.2d 498 , 500 n. 8 (D.C.1972); Swisher, supra, 572 A.2d at 89 (“defendant’s unexcused failure to appear for trial on the scheduled date caused an obstruction of the orderly administration of justice”), however, we have never been asked to consider whether a litigant, who appears in court unable to proceed because he is under the influence of alcohol 2 or some drug, is subject to summary contempt. 3 This question does not need to be answered at this time because, in my view, there is a failure of proof on the third ground, i.e., Bethard’s claimed interruption in the afternoon session that assertedly disrupted the proceeding. As noted, the third incident of contempt was Bethard’s state of stupor and his attempts “to verbally interrupt the court through the afternoon proceeding.” There is no record support for a finding of contempt on those grounds. The judge did not describe the “stupor” or how it might have constituted “disruptive conduct” that would permit a finding of summary contempt. The same is true of the three remarks made by Bethard. The judge found that the comments “interrupt[ed] the court 4 through the afternoon proceeding,” but that is not borne out by the record. Twice Bethard spoke while his own attorney, not the judge, was speaking; on the third occasion Bethard’s remark was in response to a comment by the prosecutor. There is simply no indication that these remarks rose to the level of “disruptive conduct” supporting a contempt finding. Significantly, after the third, and last, comment, Bethard was admonished by the judge (“Sir, your lawyer is speaking”); Be-thard apologized and did not speak again until the judge invited him to do so in the way of allocution. On this record, there could be no finding of contempt due to Be-thard’s conduct during the afternoon session. Therefore, since the judge relied on three separate and dependent grounds, and proof was lacking as to one of those grounds, I must conclude that the contempt citation cannot stand. See L.G., supra, 689 A.2d at 607; Kraut, supra, 580 A.2d at 1818-14 . For that reason I concur with the court’s decision to reverse the conviction. . Bethard's counsel explained that his client’s conduct was likely a reaction to a new dosage of methadone he was taking. That may be so, but the drag test revealed the presence of cocaine and opiates in addition to methadone. . At least one court has observed that if a defendant is under the influence of alcohol to the extent that state interferes with or disrupts the orderly process of the court, that would be contemptuous. Com. Ex Rel. Falwell v. Di Giacinto, 324 Pa.Super. 200 , 471 A.2d 533, 537 (1984). . Whether or not summary contempt would lie under those circumstances is an open question. If, however, the defendant's release order directed that he return to court in a condition to participate - in his defense, a failure to do so might be contempt as a violation of a court order. Swisher, supra, 572 A.2d at 89 . .It is absolutely clear from the record that when the trial judge referred to "the court," she was referring to herself in her individual judicial capacity, rather than the court as a body. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728925. Public record. Not legal advice.