dissenting. The majority opinion concludes that deputy prosecutors, John Johnson and Jay Shue, were guilty of criminal contempt. Nowhere in the record is it revealed that they impugned the trial court’s dignity or that court’s dignity needed vindicating. What the record does show is that the learned trial judge lost his judicial temperament, and should have voluntarily recused, so another judge could impartially decide the criminal contempt issue. The record is punctuated with the judge’s impatience and short fuse in the proceeding below.
The judge’s obvious frustration grew from the State’s filing a motion of continuance five days before the trial date, November 15, 2000. At a pretrial hearing on November 15, the judge asked the deputy prosecutors why they were not ready for trial. The prosecutors respectfully tried to explain. Mr. Shue reminded the judge that, at a September 19, 2000, bond hearing, they had learned one of the State’s essential witnesses, Shontae Jackson, had given a sworn statement which conflicted with two statements he had previously given the police. The prior statements implicated defendants Christopher Lee McBride and Nicolus N. Smith in a murder, but his bond-hearing testimony apparently recanted his earlier statements.
On the same day of the bond hearing, Mr. Shue asked the judge’s court reporter for a certified transcription of the four-hour hearing and was told she could not have the transcript ready until January of 2001 — after the date set for McBride’s and Smith’s murder trial. Shue and one of the defense attorneys, Willard Proctor, presented this transcript delay problem to the judge, who stated, “We’d take [it] up at the appropriate time.” Thus, at this stage of the criminal proceeding, the trial court’s court reporter was on record as not being able to transcribe the four-hour bond hearing in time for a trial which was to take place in about two months, and the trial court had refused to discuss or resolve the State’s problem until the “appropriate time.” Defense counsel readily knew that the State was trying to obtain Jackson’s transcribed testimony, and he stated he understood the problem and would not object to the State’s request for continuance. The foregoing facts reveal the trial court, its personnel, and defense counsel knew of the prosecutors’ plight, and the judge could have resolved this problem well in advance of trial.
In addition, the prosecutors had some real legal issues lurking if they had not attempted to obtain Jackson’s transcribed, certified statement. One, while the majority suggests the prosecutors could have listened to the tape of the bond-hearing proceeding, the State would need the certified statement for impeachment purposes; if it discovered Jackson had lied, they would also need the statements before filing perjury charges against Jackson. Second, once the State was forced to call its first witness without knowing whether Jackson’s testimony would hurt or help its case-in-chief, double jeopardy would attach and the defendants could not be retried even if the State later discovered Jackson agreed to offer false testimony favoring the defendants. In short, it would have been foolish for the State to proceed in the murder case against the defendants without having Jackson’s sworn statement transcribed and certified by the proper court official.
After deputy prosecutors Shue and Johnson offered explanations why they could not proceed to trial and call their first witness, the judge became incensed, disallowing the prosecutors to make a record. The judge’s remarks are as follows:
The Court: The Court’s not going to do that. You get the witnesses over here or be held in contempt of court on your part.
Mr. JOHNSON: May I make a record?
The Court: No.
4= * *
The COURT: Now, for the purposes of the record, you’re saying that you’re not going to call any witnesses?
Mr. JOHNSON: Your Honor, for the record, what I’m saying is that we cannot announce ready for trial today.
The Court: You’re not going to call any witnesses?
Mr. Shue: We can’t.
The COURT: Both of you are in contempt of court. Go with the bailiff.
Mr. Johnson: May I make a record on that your Honor1
The Court: No.
Mr. JOHNSON: You are denying me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: You’re arresting me and not giving me the opportunity to make a record?
The Court: Yes.
Mr. JOHNSON: May the record reflect that I asked to make a record on this particular point and I was denied by the Court. (Emphasis added.)
The present case is not the first one where a trial judge has shown personal frustration over whether a pretrial motion was either vexatious or filed for purposes of delay. In Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986), the court, quoting Johnson v. State, 87 Ark. 45, 112 S.W. 143 (1908), stated the following:
The mere filing and presentation of a motion or repeated motions which are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vexation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court’s order, so as to amount to an obstruction of the administration of justice. (Emphasis added.)
The record fails to show Shue or Johnson filed the State’s continuance motion for the purpose of obstructing the administration of justice. In the present case, the deputy prosecutors filed only one motion for continuance, and as can be seen from the record, they were respectful at all times in making their remarks and responses in support of their motion to the judge. Here, the trial judge tried to compel the prosecutors to go to trial or to nolle pros the case against the defendants. As the majority opinion recognizes, a judge cannot order a prosecutor to nolle pros a case. Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). Nor, it can be said, can a prosecutor “run” a court’s docket as the judge expressed and believed was happening in this case. The prosecuting attorney and the trial court each have respective roles and authority to exercise to see that the administration of justice is achieved and a fair trial is obtained by the state and the defendants. The facts and record before this court reflect that, in this particular case, the prosecutors had very good reasons for requesting a continuance, they did it respectfully and timely, giving the judge sufficient time to avoid the cost of summoning a jury. The judge knew two months ahead of trial that his court reporter had problems getting Jackson’s testimony so the State could utilize it in preparation for and at trial, but he chose to delay resolving the matter until the day of trial. As pointed out, one of the defense counsel understood the State’s dilemma and, with the slightest bit of cooperation between the prosecutors and the judge, this entire contempt proceeding could have been avoided. While the majority opinion reads that the deputy prosecutors failed to pursue resolving Jackson’s possible pegured testimony problem, that simply is not true. As discussed above, they tried to obtain the necessary transcript of Jackson’s testimony from the court reporter as soon as they learned that Jackson made such a statement, they unsuccessfully approached the judge for assistance and a ruling on the issue, and they finally requested a timely continuance to permit them the opportunity to resolve the matter. In this latter instance, it was the trial judge’s case coordinator, not the judge, who conveyed the prosecutor’s motion would be denied without a hearing. In any event, the judge’s decision to hold the deputy prosecutors in criminal contempt is erroneous and unsupported by the record.
The foregoing provides reasons alone for granting the deputy prosecutors’ petition for writ of certiorari, but it is also important to at least mention how the judge’s decision to impose criminal contempt sanctions violates the prosecutors’ due process rights. The contempt power “does not provide the trial court with carte blanche authority to issue orders of body attachment, detention, and custody, while ignoring portions of statutory provisions relating to contempt proceedings, and without affording procedural protections of due process of law to the parties being placed in arrest and custody.” Bates v. McNeil, 318 Ark. 764, 768-69, 888 S.W.3d 642, 645 (1994). The United States Supreme Court has also spoken on this subject, holding in Taylor v. Hayes, 418 U.S. 488 (1974), that “[e]ven where summary punishment for contempt is imposed during trial, the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocation.” Taylor, 418 U.S. at 498 (citing Groppi v. Leslie, 404 U.S. 496 (1972)) (internal quotations omitted). Judge Humphrey flatly denied Johnson and Shue the right to make a record and refused to afford them a hearing. The judge also denied the request of deputy prosecutor Tonia Goolsby to stand in for Johnson and Shue, telling her that the two would “have to stand before the court themselves.”
In conclusion, then, I believe not only that the actions of Johnson and Shue did not constitute contempt, but also that their due process rights were neglected in the process. For these reasons, I dissent.
ARNOLD, C.J., joins this dissent.