concurring in part and dissenting in part. I agree with the majority that respect and order in the courtroom are paramount concerns and that the circuit judge was correct in holding Mr. McCullough in contempt for arguing with him. We have said that an act is contemptuous if it interferes with a court’s business or proceeding, or reflects upon the court’s integrity. See Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). Contempt proceedings are employed to preserve the power and dignity of the court. See id.
The majority quotes two colloquies between Mr. McCullough and the trial judge: one that took place on April 5, 2002, and a second that occurred on June 3, 2002. The circuit judge, however, made it clear in his order, that he was holding Mr. McCullough in contempt only for what transpired on June 3, 2002. The judge said in his order:
On this 3rd day of June, 2002, this matter is considered and called for jury trial whereupon the State announced ready for trial, but the Defense announced not ready, and Defense Counsel R.S. McCullough was called to the Bench.
The Defense Counsel Mr. McCullough then made a motion for the trial court to recuse, during which he advised the trial court that he had filed a complaint with the Judicial Conduct Committee and for that reason this Court was required to recuse. The Court advised Mr. McCullough that that was not the law, whereupon, he proceeded to argue with the Court’s ruling. He stated that he was entitled to make a record. The Court advised him that he had already made his record on that point, whereupon, he persisted to argue with the Court’s ruling. The Court then held him in direct contempt for arguing with the Court and sentenced him to ten days in the Ashley County Jail. Bond set at $1200.00 cash only.
The relevant colloquy leading to the contempt holding was this:
(Whereupon, the following was had at the Bench out of the hearing of the prospective jurors:)
Mr. McCullough: . . . [T]he Court is to appear to be unbiased, not to be prejudicial to a person that is going to stand trial and be a fair forum. After Mr. Walker’s last appearance in this court, especially with the disinformation that was given out, Mr. Walker feels like, and counsel does too, to some extent, that this Court cannot be fair with him. This is based upon how the Court dealt with the motion and because of the selective prosecution, not only on the particulars, but prejudging that motion and deciding that it was untimely filed and not knowing the underlying facts.
Also, Mr. Walker explained to me, I didn’t recall at the time, but that this court had previously prosecuted him in an earlier case or cases. And he thinks that’s why the Court did not want to give him a fair shot because the Court thinks that while it prosecuted him in the past means he obviously has to be guilty.
Also, Judge, Mr. Walker and counsel, also as I indicated on Friday, intended to file a complaint with the Judicial Ethics Committee and that has been done and is being transmitted. I think the Court has no choice other than to recuse from a matter of this type.
The Court: I disagree with you on that regard. I know that the Court, the Supreme Court has ruled that just because a complaint is filed doesn’t mean that you have to recuse. If that was the case, any defendant could file a complaint at any time and get that, force a trial judge out, and he can’t do that.
Mr. McCullough: Everybody — I imagine everybody would get one bite of that apple if that was the case unless they could show it was —
The Court: That’s the ruling. Don’t argue with me.
Mr. McCullough: I’m not arguing with you.
The Court: Yes, you are.
Mr. McCullough: I have a right to make a record.
The Court: I’ve ruled.
Mr. McCullough: I have a right to make a record.
The Court: No, you’ve made your record.
Mr. McCullough: ' Just like that. You can’t —
(Whereupon, the following was had in open court in the presence of the prospective jurors:)
The Court: Take him to jail. That’ll be ten days. We’re going to be in recess. The jury is dismissed.
Two things strike me about this exchange. This court has, time and again, noted that lawyers must make a record when objecting and moving for some form of relief. See, e.g., Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001) (holding that objection on basis of Ark. R. Evid. 803 was argued for the first time on appeal where the record revealed no objection on that particular basis; “Parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial.”). Secondly, the statements by Mr. McCullough, although contemptuous, were not that egregious. Certainly, they did not rise to the level of refusing to go to trial when the trial date has been scheduled, see Johnson v. Johnson, 343 Ark. 186,33 S.W.3d 492 (2000), or failure to abide by a court order, see Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002).
Other jurisdictions have recognized that zealous advocacy must be permitted and that “it is only when [that advocacy] is boisterous or disrespectful to the degree that it constitutes an imminent threat to the administration of justice that summary punishment for contempt will be authorized.” State v. Boyd, 166 W. Va. 690, 696, 276 S.E.2d 829, 833 (1981). For example, in a Massachusetts trial court, this colloquy ensued between counsel and the trial judge:
The Judge: “All right, your objection is overruled. I’m not hearing from you any further.”
Defense Counsel: “Your Honor, I have — ”
The Judge: “No. Mr. Segal, I’m not hearing from you any further.”
Defense Counsel: “I object to — ”
The Judge: “Mr. Segal, do you want to be locked up? Do you want to be? Mr. Ryan [court officer] — • do you want to be locked up, or are you going to take the Court’s ruling?”
Defense Counsel: “Your Honor, I accept the Court’s ruling — ”
The Judge: “Mr. Ryan, take him into custody.”
Commonwealth v. Segal, 401 Mass. 95, 96, 514 N.E.2d 1082, 1083-84 (1987). The Massachusetts appellate court reversed the contempt holding and said: “Contempt or the threat of contempt should not be used to chill an attorney’s vigorous but respectful advocacy on behalf of a criminal defendant.” Id. at 98, 514 N.E.2d at 1085. Again, I agree that Mr. McCullough crossed the line, but there was also no warning that contempt was imminent, as there was in the Segal case.
As noted by the majority, this court, under its inherent authority, has often modified punishment for contempt. See, e.g., Johnson v. Johnson, supra (reducing an unlimited sentence of jail time to time already served on day of contempt); Arkansas Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998) (remitting the amount of time to be served from fifty-three days to two); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993) (reducing the sentence of time from ninety days in jail to five days); Page v. State, 266 Ark. 398, 583 S.W.2d 70 (1979) (reducing sentence often days’ imprisonment to time served); Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974) (reducing sentence from “until . . . child is returned . . . and ... an additional three days” to time served which was “at least overnight”).
This court has also modified contempt sentences even when the appellant did not allege any error in the sentence nor requested a modification. See, e.g., Johnson v. Johnson, supra. In the instant case, the circuit judge levied the maximum statutory sentence of ten days against Mr. McCullough. See Ark. Code Ann. § 16-10-108(b) (Repl. 1999). Mr. McCullough already had a cash bond of $1,200 paid on his behalf and served some jail time for contempt, according to statements made in his brief.
Because Mr. McCullough was attempting to make his record in this case, albeit in an argumentative fashion and because $1200 had been paid on his behalf and he had served some time for contempt, I would also modify his contempt sentence. However, rather than requiring Mr. McCullough to serve three more days in jail, I would modify his sentence to time served. See Johnson v. Johnson, supra. In my judgment, the power and dignity of the court are preserved by such a sentence.
For that reason, I dissent in part.