Rowell v. State

George Rose Smith, Justice. In the course of a criminal trial in the Conway Circuit Court the present petitioner, Felver A. Rowell, Jr., a lawyer in the case, was fined $25 for contempt of court because he asked a witness a particular question after the circuit judge had instructed him not to ask the question. Mr. Rowell, evidently regarding the issue as a matter of principle, seeks a writ of certiorari to quash the court’s order, on the ground that the trial court “could not find petitioner guilty beyond a reasonable doubt of knowingly and intentionally violating an order of the court.” The Court of Appeals transferred the case to us. We uphold the trial court. At the outset we observe that although the trial judge must be convinced beyond a reasonable doubt that a criminal contempt was committed, that is not the standard of review in this court. We view the record in the light most favorable to the trial court’s decision and formerly sustained that decision if supported by substantial evidence. Dennison v. Mobley, 257 Ark. 216, 221, 515 S.W.2d 215 (1974); Songerv. State, 236 Ark. 20, 364 S.W.2d 155 (1963). Now we sustain the decision unless it is clearly erroneous. ARCP Rule 52. We must also bear in mind the considerations mentioned in Dennison v. Mobley, supra: Perhaps there is no case in which the [trial] court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part. We have only a partial record of the two-day criminal trial, near the close of which the asserted contempt of court occurred. Apparently the Morrilton chief of police, Robyn Masingill, was being tried for having removed and converted to his own use certain cans of beer that had been seized and stored in the police department’s evidence room. Debbie Reynolds, a witness for the State, apparently testified that Charles Hesselbein, a former alderman, had also been involved in the removal of the beer. When the State rested its case the trial judge refused to allow Mr. Rowell, as defense counsel, to call Hesselbein as a witness, because his name had not been furnished to the prosecutor. The correctness of that ruling is not before us. After the defense rested, the State recalled Debbie Reynolds as a rebuttal witness. On her direct examination her pertinent testimony was confined to a diagram which she had prepared, showing the evidence room and the location of the beer in that room. She did not mention Hesselbein’s name or the removal of the beer. On cross examination she was asked if she had testified (during the State’s case in chief) that she held the door of the evidence room open while Masingill and Hesselbein went in and got the beer. She answered that she had merely stood by the door and talked to someone else: “I never said that I held the door back while they got the beer.” After the State had completed its rebuttal testimony Mr. Rowell said he wanted to call Hesselbein “as a witness on surrebuttal to rebut the location of Debbie’s drawing and also as to . . . which way the door opens and if he had ever been there or not.” The record then continues: Mr. Tatum [the prosecutor]: Your Honor, I have no objection to him calling him for rebuttal purposes to rebut what was covered on direct. By the Court: Surrebuttal, that’s right. Mr. Tatum: But I think counsel should be cautioned to stay within those frameworks and those lines. By the Court: All right. Mr. Tatum: I would hate to see a mistrial at this late date. By the Court: I think we all know the rules of rebuttal and surrebuttal and all that since our law school days, probably the second year of law school, so let’s stay within those boundaries. Mr. Rowell: I want to, your Honor, but I want the Court to advise and to rule on with me as to how far I can go with reference to whether or not Chester Hesselbein had ever been in that evidence room since he and Robyn were there, I want to go that far. By the Court: You can do that. Hesselbein was then put on the stand as a surrebuttal witness. Mr. Rowell showed him Debbie’s drawing of the evidence room and continued: Q.... [W]ere you ever outside this evidence room, right here? A. No. Q. Did Debbie Reynolds ever let you and Chief Masingill in this evidence room? A. No, sir. Q. All right, now did you ever enter this door into the evidence room with Robyn Masingill and while Debbie Reynolds was standing outside and carry anything out of that evidence room? [Our italics.] A. No, sir. Q. While you were in this evidence room — Mr. Tatum: Your Honor, may I approach the bench? By the Court: Yes. During the ensuing colloquy the prosecutor asked that Mr. Rowell be held in contempt. The court took the motion under advisement. Ata hearing two weeks later the circuit judge stated that “on two occasions I advised Mr. Rowell not to ask certain questions. Those questions were asked despite my telling Mr. Rowell not to ask them. I consider that to be an act giving rise to contempt, and I’m holding Mr. Rowell in contempt of court for deliberately asking questions I said would not be asked.” In response Mr. Rowell made a detailed statement: “My question went only to the location of the room and its contents, and not with anything else.” Actually the question was, did you carry anything out of that evidence room, which of course would include the beer. Mr. Rowell went on to say: “The question I asked Mr. Hesselbein did not make any direct reference to the beer. I asked him ... if he had ever been in the room and I asked him if he had ever taken anything from the room. . . . The response that I wanted to elicit from the witness, your Honor, was not that he took any beer or whiskey out of there, but whether or not there was a room for him to take anything out of. ... I thought that I could go that far as long as I did not make any direct reference to the beer or the whiskey, which I did not do.” The court evidently did not accept the suggestion that counsel meant to ask whether there was a room for anything to be taken out of — a fact never in dispute. We have quoted the essential parts of the record and will let it speak for itself. We cannot say that the trial court was clearly in error in finding in its written order that “an act of contempt was committed in its presence by Mr. Felver Rowell by deliberately asking questions which he was instructed not to ask.” The trial judge was warranted in concluding that Mr. Rowell attempted to put before the jury Hesselbein’s statement that he had not carried out the beer, a statement not within the scope of the permitted surrebuttal. We are not persuaded by the petitioner’s argument that the prosecutor should have objected to the pivotal question and that the judge should have warned Mr. Rowell more specifically than he did. The prosecution almost at once asked for permission to approach the bench to make his objection; the trial judge knew, as we do not, just how promptly that request was made. As for the warning, the court stated that on two occasions Mr. Rowell had been told not to ask certain questions. A third warning was not necessary. Finally, the finding of contempt did not take place in the heat of the trial. That finding was made two weeks after the trial, without any indication either then or earlier that the trial judge acted in anger or even with impatience. His disposition of the matter was not clearly erroneous. Writ denied. Purtle, J., dissents.