No. 14926
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
I N THE MATTER O THE CONTEMPT OF
F
CHARLES GRAVELEY AND RICHARD HAMMERBACKER.
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a n d F o r t h e County o f L e w i s and C l a r k .
Honorable Joseph B. Gary, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
McCabe and W e i n g a r t n e r , H e l e n a , Montana
J. C . W e i n g a r t n e r a r g u e d , H e l e n a , Montana
For Respondent:.
H u l l and S h e r l o c k , H e l e n a , Montana
J e f f r e y S h e r l o c k a r g u e d , H e l e n a , Montana
Submitted: F e b r u a r y 28, 1980
Decided: J u l y 2 2 , 1980
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Petitioners Charles Graveley and Richard Hammerbacker
filed a petition with this Court seeking a writ of review of
a judgment of contempt found against them in the District
Court, First Judicial District, Lewis and Clark County,
before presiding Judge Joseph B. Gary.
The District Court found the petitioners guilty of
civil contempt of court in the matters hereafter stated and
ordered that each pay the sum of $200 to Lewis and Clark
County to purge the contempt.
At first petitioners attempted to appeal the judgment
of contempt of this Court. Upon discovering that a judgment
of contempt was not appealable, State v. District Court
(1919), 56 Mont. 578, 185 P. 1112, petitioners dismissed the
appeal and filed this petition for review.
The facts, in the light most favorable to the decision
of the District Court, are these:
Ricky Worden and Criss Allen Case were two of four
defendants to be arraigned in Lewis and Clark County ~istrict
Court in December 1978 in connection with a robbery that
had occurred in a bar in Wolf Creek, Montana. The arraignment
was to take place before District Judge Peter G. Meloy.
David Hull, of Helena, had been appointed to represent Ricky
Worden, and Jeffrey Sherlock, also of Helena, had been
appointed to represent Criss Case.
On December 13, 1978, Ricky Worden and Criss Allen Case
were brought to the Lewis and Clark County District Court
courtroom for arraignment. They had previously been jailed in
Malta, Montana.
The arraignment of Ricky Worden commenced sometime
between 9:00 and 9:30 a.m. on December 13, 1978. At the
time of the arraignment, Worden's attorney filed his written
notice of intent to rely on the defense of mental disease or
defect. Upon the filing of that notice, Judge Meloy entered
a verbal order that the sheriff of Lewis and Clark County
transport the defendant to Warm Springs State Hospital for
an evaluation examination.
The next defendant, Criss Allen Case, was also arraigned
on the same charge, and his attorney, Jeffrey Sherlock filed
a like notice of intent to rely on the defense of mental
disease or defect. Again at this arraignment, Judge Meloy
entered a verbal order that the sheriff of Lewis and Clark
County immediately transport this defendant to Warm Springs
State Hospital for an examination.
Charles Graveley was the county attorney acting for the
state in connection with the arraignments, and Deputy
Sheriff Richard Hammerbacker was the officer in charge of
the two defendants at the time.
A written order for the transporting of Worden to Warm
Springs was presented to Judge Meloy at the time of the
Worden arraignment; however, he did not agree with the language
of the proposed order and asked that it be redrafted.
Immediately following the arraignments, at approximately
9:30, Deputy Sheriff Hammerbacker took the defendants Worden
and Case from the District Court Courtroom, across the
street to the sheriff's office, where they were "booked
out". They were then taken by Deputy Sheriff Hammerbacker
to the Helena Airport, where an airplane was already warmed
and gassed for the transportation of Worden and Case back to
Malta. The airplane used was a four passenger craft. The
pilot, Hammerbacker, and the two prisoners constituted the
passenger complement on the flight.
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In the meantime, two other defendants involved in the
same charge were also arraigned, and similar notices of
intent to rely on the defense of mental disease or defect
were filed in those cases. They were represented by other
attorneys. The court also orally ordered their examinations
at Warm Springs. Immediately following their arraignments,
they were taken to the sheriff's office, booked out and
placed in an automobile. Two members of the sheriff's staff
drove these two defendants to Big Sandy, Montana, where they
met the airplane in which Deputy Hammerbacker was a passenger.
There the two remaining defendants were transferred to the
airplane and taken to Glasgow, Montana, where they were
incarcerated. Deputy Hammerbacker then returned in the
airplane to Helena, Montana, arriving there at about 6 : 0 0
p.m.
When attorneys Sherlock and Hull learned that their
clients had been transported out of Helena, in the morning
of December 13, 1978, they immediately met with Judge Peter
G. Meloy, who called in County Attorney Charles Graveley.
There, certain conversations occurred to which we will advert
later.
On December 28, 1978, both Sherlock and Hull filed
affidavits in the criminal cause involving Worden, alleging
that the County Attorney had purposely defied the court's
order and instead of transporting the defendants to Warm
Springs for evaluation, had caused their transportation to
Malta. Both Lewis and Clark District Court judges disqualified
themselves in connection with the criminal contempt proceedings
and Judge Gary was called in to preside.
Judge Gary met with the parties on January 15, 1979.
It was then agreed that the civil contempt proceedings would
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be d i s m i s s e d and t h a t a t t o r n e y s S h e r l o c k and H u l l would f i l e
p e t i t i o n s t o f i n d Graveley and Hammerbacker g u i l t y o f c i v i l
contempt. Such p e t i t i o n s w e r e f i l e d . The m a t t e r came on f o r
h e a r i n g b e f o r e Judge Gary on February 28, 1979. After hearing,
and a f t e r having r e c e i v e d b r i e f s and proposed f i n d i n g s , Judge
Gary on A p r i l 2 4 , 1979 i s s u e d h i s o r d e r f i n d i n g b o t h County
A t t o r n e y Graveley and Deputy S h e r i f f Hammerbacker g u i l t y of
c i v i l contempt o f c o u r t . The D i s t r i c t C o u r t o r d e r e d t h e p a r t i e s
c o u l d p u r g e t h e m s e l v e s of contempt by e a c h p a y i n g a f i n e t o
t h e Clerk of t h e Court. T h i s p e t i t i o n f o r w r i t of r e v i e w ensued.
I n t h e F e b r u a r y 28, 1979 h e a r i n g b e f o r e Judge Gary, County
A t t o r n e y C h a r l e s Graveley was f i r s t c a l l e d a s a w i t n e s s . His
c o u n s e l r e q u e s t e d t h e D i s t r i c t C o u r t t o i n f o r m him t h a t w h i l e
t h i s was a c i v i l contempt, i t had c r i m i n a l i m p l i c a t i o n s and
t h a t Graveley c o u l d r e f u s e t o answer any q u e s t i o n s upon t h e
ground t h a t i t might i n c r i m i n a t e him. The C o u r t s o a d v i s e d
him. S u b s e q u e n t l y , Graveley r e f u s e d t o answer q u e s t i o n s on
t h e grounds t h a t t h e answers might i n c r i m i n a t e him a s t o w h e t h e r
he was i n t h e courtroom a t t h e a r r a i g n m e n t of Ricky Worden and
C r i s s Case and o t h e r s ; a s t o what h e h e a r d Judge Meloy s a y t o
t h e v a r i o u s p e o p l e i n t h e courtroom w i t h r e s p e c t t o t h e d e f e n d a n t s
r e f e r r e d t o ; as t o w h e t h e r h e had c o n v e r s a t i o n s w i t h any o t h e r
p e r s o n a b o u t where t h e d e f e n d a n t s w e r e t o be t r a n s p o r t e d ; a s t o
w h e t h e r h e knew where t h e d e f e n d a n t s w e r e on t h e d a t e o f t h e
h e a r i n g ; as t o whether he knew who t o o k t h e v a r i o u s d e f e n d a n t s
from L e w i s and C l a r k County t o where t h e y w e r e a t t h a t t i m e ; a s
t o whether h e had been i n Judge Meloy's chambers a f t e r t h e
a r r a i g n m e n t was h e l d ; and a s t o whether Judge Meloy a t t h a t
t i m e a s k e d him i f h e had o r d e r e d t h e d e f e n d a n t s t o be t a k e n back
t o Glasgow, M a l t a , and Wolf P o i n t .
The n e x t w i t n e s s c a l l e d w a s Deputy S h e r i f f Richard
Hammerbacker. H e t o o k t h e same t a c k , r e f u s i n g t o t e s t i f y as
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t o any q u e s t i o n s w i t h r e s p e c t t o t h e f o u r d e f e n d a n t s , upon
t h e grounds t h a t h i s answers might i n c r i m i n a t e him.
A t t o r n e y H u l l was t h e n c a l l e d t o t h e s t a n d . He testified
t h a t h e had been a p p o i n t e d t o r e p r e s e n t Ricky Worden. A t the
a r r a i g n m e n t p r o c e e d i n g s on December 1 3 , 1978, h e had f i l e d a
n o t i c e o f i n t e n t t o r e l y upon t h e d e f e n s e of m e n t a l d e f e c t ,
o r d i s e a s e , and had p r e p a r e d an o r d e r f o r t h e c o u r t t o have h i s
c l i e n t placed i n Warm Springs S t a t e Hospital. Hull t e s t i f i e d
t h a t t h e judge o r d e r e d t h e d e f e n d a n t s s e n t t o Warm S p r i n g s
S t a t e H o s p i t a l and a s k e d H u l l t o r e w r i t e t h e o r d e r t o i n c l u d e a
specific date. The o r a l o r d e r w a s made i n open c o u r t on t h a t
day. A t t h e t i m e t h e o r a l o r d e r was made, H u l l t e s t i f i e d t h a t
t h e c o u n t y a t t o r n e y and Hammerbacker were b o t h p r e s e n t . Hull
t e s t i f i e d t h a t Graveley t o l d t h e c o u r t t h a t he wanted t o s e n d t h e
p r i s o n e r s back t o Malta and t h e judge r e p l i e d he had made t h e
o r d e r and t h a t t h e s e men w e r e t o be s e n t t o W a r m S p r i n g s . After
t h e a r r a i g n m e n t , H u l l proceeded t o t h e doorway of t h e courtroom
where h e m e t Hammerbacker. Hammerbacker t o l d him, "I'm j u s t
i n f o r m i n g you t h a t y o u r c l i e n t i s r e t u r n i n g t o Malta w i t h i n t h e
hour." H u l l s a i d t o him, "You h e a r d , t h e judge o r d e r e d h e was
going t o W a r m Springs today." Hammerbacker r e p l i e d , "I d o n ' t
c a r e about t h a t . I a m merely i n f o r m i n g you t h a t y o u r c l i e n t i s
r e t u r n i n g t o Malta w i t h i n t h e h o u r . " H u l l was a l s o p r e s e n t i n
t h e courtroom d u r i n g t h e a r r a i g n m e n t s of t h e o t h e r t h r e e d e f e n d a n t s ,
and i n e a c h c a s e , H u l l t e s t i f i e d t h e same v e r b a l o r d e r w a s
e n t e r e d by t h e d i s t r i c t judge t o t h e e f f e c t t h a t t h e men w e r e
t o be s e n t t o Warm S p r i n g s f o r e v a l u a t i o n .
On c r o s s - e x a m i n a t i o n , Hull t e s t i f i e d p o s i t i v e l y t h a t
Hammerbacker was i n t h e courtroom when t h e o r a l o r d e r was made,
and t h a t t h e s t a t e m e n t s a t t r i b u t e d t o Hammerbacker w e r e made
i n t h e doorway o f t h e courtroom on t h e way o u t .
Attorney Sherlock a l s o t e s t i f i e d . H e had been a p p o i n t e d
t o r e p r e s e n t C r i s s A l l e n Case. On December 1 3 , 1978, S h e r l o c k
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t e s t i f i e d t h a t t h e f o u r d e f e n d a n t s w e r e p r e s e n t i n c o u r t and
t h a t Graveley was t h e r e t h r o u g h o u t . Hammerbacker was i n t h e
courtroom o f f and on and o t h e r members of t h e L e w i s and C l a r k
County S h e r i f f ' s O f f i c e w e r e t h e r e , i n c l u d i n g one o f t h e f u l l t i m e
jailers. S h e r l o c k t e s t i f i e d t o t h e o r a l o r d e r of Judge Meloy
i n e a c h c a s e t h a t t h e d e f e n d a n t s b e t r a n s f e r r e d t o Warm S p r i n g s
f o r e v a l u a t i o n , t h e o b j e c t i o n s made by t h e county a t t o r n e y and
t h e o v e r r u l i n g o f t h o s e o b j e c t i o n s by t h e D i s t r i c t C o u r t , con-
t i n u i n g i n e f f e c t h i s o r d e r f o r t h e t r a n s p o r t t o Warm S p r i n g s .
A t t o r n e y S h e r l o c k t e s t i f i e d t h a t l a t e r i n Judge Meloy's
chambers, b e f o r e noon b u t f o l l o w i n g t h e a r r a i g n m e n t s , he was
p r e s e n t when Graveley had a d i s c u s s i o n w i t h Judge Meloy a b o u t
t h e f a c t t h a t t h e p r i s o n e r s had a l r e a d y been t a k e n t o Malta
i n s t e a d o f Warm S p r i n g s . He s t a t e d t h a t Graveley had t o l d t h e
D i s t r i c t C o u r t on t h a t day t h a t i t was a t G r a v e l e y ' s d i r e c t i o n
t h a t t h e p r i s o n e r s were t a k e n t o p l a c e s o u t s i d e L e w i s and C l a r k
County, and n o t t o Warm S p r i n g s .
A t t o r n e y L a r r y Murphy, who r e p r e s e n t e d one of t h e o t h e r
two d e f e n d a n t s i n v o l v e d , t e s t i f i e d t h a t h e was a l s o p r e s e n t i n
t h e c o u r t a t t h e t i m e of t h e a r r a i g n m e n t s and h e a r d t h e o r a l
o r d e r s o f Judge Meloy. H e was a l s o p r e s e n t i n Judge Meloy's
courtroom a t t h e meeting b e f o r e noon. H e t e s t i f i e d t h a t Graveley
s t a t e d e m p h a t i c a l l y t h a t he had a n agreement w i t h t h e c o u n t y
a t t o r n e y i n Malta t h a t t h e p r i s o n e r s would b e t r a n s p o r t e d t h e r e
immediately and t h a t even though Judge Meloy o r d e r e d t h a t t h e
p r i s o n e r s be t r a n s p o r t e d t o Warm S p r i n g s i m m e d i a t e l y , Graveley
w a s g o i n g t o have them t r a n s p o r t e d t o Malta.
S h e r i f f C h a r l e s M. O ' R e i l l y , who t o o k o f f i c e December
1 5 , and w a s n o t i n v o l v e d i n t h e i n c i d e n t s o f December 1 3 ,
t e s t i f i e d from t h e r e c o r d s of t h e s h e r i f f ' s o f f i c e t h a t
d e f e n d a n t Worden was "booked o u t " o f t h e s h e r i f f ' s o f f i c e a t
9:40 a.m. December 1 3 , 1978; t h a t d e f e n d a n t Case w a s "booked o u t "
at 9:55 a.m. on that day; and that the sheriff's office was
served with a written order regarding Worden at 10:15 a.m.
on December 13, 1978. He had no written orders for the other
defendants until later.
After attorneys Hull and Sherlock had rested, the
respondents Graveley and Hammerbacker put on their case.
They called the weatherman, Max Baumgartner, who indicated
that weather was closing in on December 13 and that it would
have been impractical to fly a small airplane on that date;
also that he had informed the pilot of the airplane of the
adverse weather conditions and that if any flights were to
be made they were to be made on December 13, 1978.
Deputy Sheriff Hammerbacker then took the stand. This
time he did not refuse to answer under the Fifth Amendment
of the United States Constitution. He testified that he
understood that the defendants were to be transported back
to Malta; that he had made the arrangements through the
instructions of the county attorney in the week before the
December 13 arraignments; and that he understood the defendants
would have to be back in Malta no later than December 15,
1978. Hammerbacker testified that he was not in the courtroom
when Judge Meloy issued his orders respecting the defendants.
He stated that he had gone over to the sheriff's office at
the request of the county attorney to research the "rap
sheet" on defendant Worden. He said he was first made aware
of the alleged oral order by Hull in the doorway of the
courtroom. At first he testified that they had been in
the sheriff's office and they had not returned to the courtroom
before he met Hull. Later in his cross-examination,
he stated that he had in fact come into the courtroom and talked
to County Attorney Graveley before coming out again to the
doorway where he met Hull. He stated that he does not take
the word of defense counsel because he has been lied to so
often by defense counsel. He further described how the
prisoners were taken from Lewis and Clark County and transported
to their various destinations.
After the pilot of the airplane testified substantially
to what we have stated foregoing, Graveley took the stand.
This time he did not refuse to answer under the Fifth Amendment.
He testified that arrangements had been made before the
defendants had been brought to Lewis and Clark County,
that they would be immediately returned to Malta. That he
had made these arrangements for the four defense counsel in
Malta and with the county attorney there. He stated the
arrangement was that they would all be returned before
December 15, 1978. (It should be stated that all four
defendants were under homicide charges pending in the District
Court of Phillips County.)
He testified that the first two defendants were arraigned
by 9:25 a.m. on the morning of December 13; that he had
asked Hammerbacker to check on the rap sheet of Ricky Worden;
and that he had no other conversation with Hammerbacker. He
knew that the plans had been arranged for flying the defendants
out of Lewis and Clark County. He had been advised that
the sheriff's office would fly the defendants from Helena as soon
as possible. On his direct examination, Graveley testified he never
told the sheriff's officers that under Judge Meloy's order,
they were not supposed to transport the prisoners. He felt
that any notice to the sheriff was the defendant's obligation
or the defendant's attorney's obligation to serve the sheriff's
office.
On cross-examination County Attorney Graveley testified
that he had no court order to return the defendants to
Malta or Glasgow. He further testified that it was not his
obligation to enforce any orders obtained by defense counsel.
He testified that he made no attempt to inform the sheriff's
office of the oral orders of Judge Meloy.
When Graveley was asked whether he had any conversation
with the sheriff's office after the arraignment concerning
the transport of the defendants to Malta, in spite of the
court orders, Graveley answered he could not recall. He was
then faced with a transcript from an earlier hearing in
which he was asked the following questions:
"Q. And then Judge Meloy asked you, 'Did
you direct them to take them despite the order
made by this court'?
"And your answer was, 'We had some conversation
about it. Yes. I fail to see how an oral
order can be directed . .
.'
"Does that refresh your recollection for you as
to the fact that you directed them after the
order was made to transport the prisoners out
of the county. A. Yes.
"Q. Did you make it a formal explanation why
to Judge Meloy? Why did you direct them to
take them despite the order made by that court.
A. I did not direct them to take anybody out
of the county after the order was made by that
court.
"Q. You answered yes. A. I'm answering I
did not direct anybody to take them out of the
county.
"Q. Do you want to change the answer you made?
A. No I don't."
So much for the record. In this cause, Attorneys Hull
and Sherlock have moved this Court to dismiss the petition
for writ of review on the ground that such a writ may not
issue where the District Court h a s not acted in excess of
its jurisdiction. It is true that a writ of review or certiorari
may be granted only when a trial court has exceeded its juris-
diction. State v. District Court of Second Judicial District
(1900), 24 Mont. 494, 62 P. 820. However, we will follow the
procedure of State v. District Court (1929), 85 Mont. 215,
278 P. 122 and treat the petition here as one for an alternative
writ, in this case one for supervisory control. On that
basis, we do not dismiss these proceedings on the ground
that a writ of review is improvidently sought by the petitioners.
On the other hand, petitioners Graveley and Hammer-
backer seek to have the judgment of the District Court
vacated on the ground that their contempt is not proven
beyond a reasonable doubt. However, substantial evidence is
all that is required to support a judgment for contempt. In
Re Burns (1928), 83 Mont. 200, 208, 271 P. 439. It is the
rule that on review of contempt proceedings, the Supreme
Court determines only whether the District Court acted
within jurisdiction, and whether or not the evidence supports
the finding and order. State v. District Court of Twelfth
Judicial Dist. (1968), 151 Mont. 41, 43, 438 P.2d 563; State
v. Second Judicial Dist. Court (1935), 99 Mont. 209, 41 P.2d
1113.
Petitioners also contend that the contempt proceedings
should be dismissed because this is a case of criminal
contempt, and the procedures for instituting a civil contempt
case were not followed.
Section 3-1-501, MCA, defines what acts or omissions
are contempts. Section 45-7-309, MCA, defines what offenses
constitute criminal contempt. In general, the definitions
include the same kinds of acts or omissions which tend to
interrupt the orderly flow of trials or proceedings before
courts or to abuse their authority. The punishment for a
contempt under section 3-1-501, must not exceed five days in
jail, or a fine of $500 or both. The punishment for criminal
contempt is not to exceed a six month sentence or $500 or
both.
Section 3-1-511, MCA, provides for the procedure to be
followed when contempt is committed in the presence of the
court. In that situation, the contempt may be punished
summarily but an order must be made by the court reciting
the facts which occurred. Section 3-1-512, MCA, sets out
the procedures to be followed when a contempt is made outside
the presence of the court. This section calls for the
submission of affidavits of the facts constituting contempt,
after which a warrant is to be issued. In this case, instead
of arresting Graveley and Hammerbacker by warrant of attachment,
the District Court issued an order to show cause.
The United States District Court of Montana in 1957
held that contempts are neither wholly civil nor altogether
criminal. See United States v. Montgomery (D. Mont. 19571,
155 F.Supp. 633.
It appears in this case that the petitioners were
charged with an indirect or constructive contempt. That is,
the contempt occurred outside the presence of the court. In
a constructive contempt, the essence of whether the court's
order has been abused is whether the party accused had
knowledge of the order. Hand v. Hand (1957), 131 Mont. 571,
312 P.2d 990.
We do not find a jurisdictional defect in the contempt
proceedings against the petitioners because an order to show
cause was issued instead of a warrant. The court took
judicial notice of the affidavits that had been filed in the
criminal contempt charges against the petitioners, and the
jurisdiction of the District Court to hear the matter was
affirmed when the petitioners appeared in response to the
order to show cause.
The question of the knowledge of the petitioners of the
District Court's oral order was one for determination in
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the contempt proceedings before the District Court. It is
certain that County Attorney Graveley had knowledge of the
order because he was in court when the order was made, The
testimony of Hull and Sherlock, which the District Court
apparently accepted, also reflected that Hammerbacker was in
fact present when the order was made. Substantial evidence
supports the findings and order of the District Court. State
v. District Court of Twelfth Judicial Dist., supra. The motion
of Graveley and Hammerbacker in the District Court to dismiss
the contempt proceedings is the same as contending that the
evidence is insufficient to sustain the findings of the
court. As we have already stated there is substantial
evidence supporting the judgment.
The petitioners also claim that the court erred in
refusing an offer of proof respecting deceptions by other
attorneys involving Deputy Sheriff Hammerbacker. The District
Court refused to hear such evidence unless it involved
the attorneys in this case, which was not the situation.
The court did not commit error in refusing that offer of
proof.
The court also refused evidence of statements made to
Hammerbacker by pilot Donald Thelan. Thelan testified fully
as to the weather situation and the necessity of making both
flights on December 13, 1978. The proferred evidence had
no probative value as to whether both Graveley and Hammerbacker
were acting in spite of the court's oral order and so was
properly refused by the court as irrelevant.
In the civil contempt proceedings, the type, character and
extent of punishment rests on the trial court's discretion
as measured by the showing made. United States v. Montgomery,
supra. In light of the findings made by the court and the
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evidence supporting them in this case, the District Court
was justified in assessing a sum of $200 against each of the
petitioners in order to purge the contempts.
The petition for writ is denied in any form. These
proceedings are dismissed.
..............................
Justice
We Concur:
Chief Justice
Justices 1