2005 UT 75
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
No. 20020338
Plaintiff and Appellee,
v. F I L E D
Geoffrey L. Clark,
Defendant and Appellant.
November 4, 2005
---
Second District, Ogden Dep't
The Honorable Ernie W. Jones
No. 011900435
Attorneys: Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix,
Asst. Att'y Gen., Salt Lake City, Dean Saunders,
Ogden, for plaintiff
Michael N. Martinez, Murray, for defendant
---
PARRISH, Justice:
¶1
Felipe Ruiz Santana retained attorney Geoffrey Clark to
defend him against a murder charge. At the end of a four-day
trial described by the trial court as an "adventure," the jury
convicted Santana as charged. The State thereafter asked the
trial court to hold Clark in criminal contempt for his actions
during the trial. Following an evidentiary hearing, the trial
court granted the motion, sentencing Clark to thirty days in jail
without work release or time off for good behavior. Clark
appeals both the substance of the criminal contempt order and the
sentence imposed. We affirm.
BACKGROUND
¶2
The State filed a motion in limine before trial to
prevent Santana from offering evidence as to the victim's history
of illegal drug use and propensity for violence. The trial
court's in-court ruling on the State's motion, as well as a
subsequently-issued written order supplementing that in-court
ruling (collectively, the "order"), constituted the predicate for
some of Clark's contemptuous acts. The order addressed two
issues. First, it specified that "[o]nly criminal convictions
for violent offenses can be offered at trial," that "[n]o
convictions that are ten years or older may be offered at trial,"
and that "[n]o arrests are admissible at trial."
¶3
The order also addressed the admissibility of evidence
indicating the victim's history of illegal drug use. During the
preliminary hearing, the medical examiner testified that the
victim had a trace of cocaine metabolite in his blood.1 On the
basis of this evidence, Clark argued that the victim had attacked
Santana while under the influence of illegal drugs and that
Santana's actions should be excused on the theory that Santana
acted in self-defense. The trial court ruled that the medical
examiner's testimony was irrelevant without expert testimony
tying the presence of cocaine metabolite to the victim's behavior
on the night of his death. Accordingly, its order prohibited the
medical examiner from testifying regarding the cocaine
metabolite. The order allowed, however, the testimony of any
eyewitnesses who saw the victim actually using cocaine on the
night of his death.
¶4
The adventure began on the first day of trial, when
Clark cross-examined a witness by inquiring if she had ever
experienced any alcohol-related legal problems. When she denied
having any such problems, Clark asked her to "explain" a piece of
paper he held in his hand, though the paper displayed only the
witness's name and a charge of disorderly conduct and
intoxication. Apart from not being a certified conviction, it
displayed no other identifying information and reflected nothing
about the resolution of the charge. The State objected, and the
trial court sustained the objection. The next morning, before
the trial resumed, the trial court reminded Clark:
I think you know you cannot impeach a witness
who's on the stand by saying that they have
been arrested. I thought I made that fairly
clear in the ruling. Arrests are not
admissible. Convictions are, depending on
what it's for. And so to just show her a rap
sheet or some kind of a printout, I don't
think it was appropriate.
1 Cocaine metabolite is not cocaine. Rather, it is the
compound into which cocaine converts once ingested. Its presence
in a person's system suggests only that actual cocaine had been
present some time earlier.
No. 20020338
2
¶5
Later that day, the State called the medical examiner
as a witness. On cross-examination, Clark asked him what he had
found in the victim's system. The State objected, and the trial
court sustained the objection. Later, when the trial court gave
the jury the opportunity to suggest questions in writing, the
jury suggested that the medical examiner be questioned regarding
the presence of drugs in the victim's system, though it was
unclear whether the suggested question referred to illegal drugs
or prescription drugs administered to the victim at the hospital.
Seizing upon the opportunity presented by the jury's suggestion,
Clark audibly proclaimed it a "great question." When the trial
court then asked the medical examiner to identify the drugs the
victim received in the hospital, Clark announced his belief that
the jury's question addressed illegal--not prescription--drugs.
¶6
Out of the jury's presence, the trial court sternly
admonished Clark, both for seeking to introduce evidence of the
cocaine metabolite in violation of the order and for highlighting
the issue by audibly declaring that the jury had suggested a
"great question." Nevertheless, the cat was out of the bag, and
it appeared to the jury as if the State were withholding
evidence. Accordingly, the trial court allowed Clark to question
the medical examiner about the presence of cocaine metabolite in
the victim's blood.
¶7
Clark's lack of adherence to the court's order was only
the first chapter of the adventure. On the third day of trial,
Clark objected when the State asked a witness for his address,
announcing to the jury that "[t]he [c]ourt is well aware of the
threats of violence in this case." In fact, there was no
evidence of any threat of violence against the witness.2 During
a recess, Clark suggested that the witness really did fear for
his life, but the court was not persuaded, noting that Clark
could have explained the basis for his objection outside of the
jury's presence and concluding that Clark had attempted to
prejudice and frighten the jury.
¶8
Another chapter of the adventure involved Clark walking
away from bench conferences. Clark's co-counsel in the murder
trial, who later represented Clark during the contempt hearing,
admitted during the contempt proceedings that he "grabbed [Clark]
by the collar and pulled him back" to the bench when Clark left
the conferences. Clark attempted to explain his behavior by
2 On October 12, 2001, Clark filed a notice with the trial
court suggesting that the victim's family had sabotaged his car
and had tried to intimidate another attorney defending Santana.
The notice made no mention of any threats against the witness.
3
No. 20020338
suggesting that he had merely been retrieving his notes or
picking up certified copies and that the attorneys attending the
conference were "fairly large guys" who could not all fit around
the bench.
¶9
The final chapter of the adventure unfolded on the
fourth and final day of trial, during Clark's closing argument,
when he stated that the victim had cocaine in his system. The
State objected, claiming the evidence was limited to cocaine
metabolite. The court indicated to the State that it could
refute Clark's statement in its rebuttal. A few minutes later,
Clark described the victim as "hopped up on coke." The State did
not object to that statement.
¶10
The State did object, however, when it appeared that
Clark was tampering with evidence during his closing argument.
In his opening statement, Clark had read from Santana's police
statement, in which Santana had claimed that his sweatshirt had
been torn in the altercation that led to the victim's death. To
rebut that claim, the State introduced the sweatshirt into
evidence and a police officer testified that it was free of tears
when it was collected from the crime scene. During his closing
argument, Clark began pulling on the sweatshirt until some of its
stitches audibly popped. The State objected. The court deferred
comment on the sweatshirt issue until "later" and did not address
it again until Clark's contempt hearing.
¶11
Following the trial, the State asked the court to hold
Clark in contempt. Because the allegedly contemptuous acts
occurred in the court's presence, the court could have summarily
held Clark in criminal contempt at any point during the trial.
See Utah Code Ann. § 78-32-3 (2002). Nevertheless, the court
scheduled a separate hearing nearly three weeks later in order to
"give [Clark] his day in court" and to avoid "disrupt[ing] the
trial or distract[ing] parties from the real issue at trial."
¶12
After the hearing, the court held Clark in criminal
contempt pursuant to Utah Code section 78-32-1.3 Its factual
3 The relevant portions of section 78-32-1 provide:
The following acts or omissions in respect to
a court or proceedings therein are contempts
of the authority of the court:
(1) Disorderly, contemptuous or
insolent behavior toward the judge while
holding the court, tending to interrupt
the due course of a trial or other
(continued...)
No. 20020338
4
findings identified six contemptuous acts: (1) Clark's first
violation of the order on the motion in limine, when he attempted
to impeach a witness while holding and referring to a piece of
paper that was not a certified conviction; (2) Clark's second
violation of the order on the motion in limine, when he attempted
to introduce evidence of cocaine metabolite in the victim's
system; (3) Clark's reference to threats of violence, designed to
frighten the jury; (4) Clark's defiance of and lack of respect
for the court as demonstrated by his abandonment of bench
conferences; (5) Clark's statement during closing argument that
the victim was "hopped up on coke," which had no support in the
evidence; and (6) Clark's attempt to tamper with the evidence by
pulling on the sweatshirt during his closing argument.
¶13
The trial court found that Clark (1) knew of and
understood the order "concerning the use of the toxicology
report"; (2) "knew or should have known the proper method to
impeach witnesses"; (3) "knew what could be said in front of the
jury during trial and in closing argument"; (4) "willfully and
intentionally failed to comply" with the court's orders;
(5) "disobeyed [the] [c]ourt's orders several times during the
four-day trial"; and (6) "had the ability to comply with the
orders, and was warned in chambers and out of the presence of the
jury about his conduct." The court found the contemptuous acts
to have been proven beyond a reasonable doubt, held Clark in
criminal contempt, and sentenced him to thirty days in jail
without work release or time off for good behavior. Clark
appeals from that order, and we have jurisdiction. Id.
§ 78-2-2(3)(i).
3 (...continued)
judicial proceeding.
(2) Breach of the peace, boisterous
conduct or violent disturbance, tending
to interrupt the due course of a trial
or other judicial proceeding.
(3) Misbehavior in office, or other
willful neglect or violation of duty by
an attorney, counsel, clerk, sheriff, or
other person appointed or elected to
perform a judicial or ministerial
service.
. . . .
(5) Disobedience of any lawful
judgment, order or process of the court.
Utah Code Ann. § 78-32-1 (2002).
5
No. 20020338
ANALYSIS
¶14
Clark mounts a four-pronged attack on the trial court's
contempt order. First, he asserts that the findings of fact on
which the order is based are clearly erroneous. Second, he
argues that the facts and findings in the record fail to satisfy
the substantive requirements for an order of contempt. Third,
Clark suggests that the trial court was biased against him and
abused its discretion by allowing its bias to interfere with his
obligation to zealously represent his client. Finally, Clark
contends that the sentence imposed by the trial court constituted
an abuse of its discretion. We address each argument in turn.
I. ARE THE TRIAL COURT'S FINDINGS OF FACT CLEARLY ERRONEOUS?
¶15
The trial court identified six instances of
contemptuous conduct and found, beyond a reasonable doubt, that
each contemptuous act was intentional. We review the trial
court's findings of fact for clear error. Von Hake v. Thomas,
759 P.2d 1162, 1172 (Utah 1988).
¶16
Clark urges us to view his conduct more sympathetically
than did the trial court. Clark argues that (1) the trial
court's order did not prohibit him from questioning the medical
examiner about the toxicology report, and he therefore could not
have knowingly violated that order; (2) the trial court's order
did not prevent him from using evidence of an arrest to impeach a
witness, and he therefore could not have knowingly violated that
order; (3) his mention of threats of violence was in good faith
and not in violation of any order; (4) no rule or order required
him to be present at all times at all bench conferences; (5) he
had wide latitude in making his closing argument and was free to
characterize the evidence in any way he saw fit; and (6) he
pulled on the sweatshirt only to make a point, not to tamper with
it, and at any rate was not successful in tearing it. Relying on
this version of the events at trial, Clark argues that the trial
court's factual findings are clearly erroneous.
¶17
We reject Clark's version of the events at issue
because his mere recharacterization of the trial court's factual
findings does not satisfy our threshold marshaling requirement.
To successfully challenge a finding of fact, "an appellant must
. . . marshal all the evidence in support of the finding and then
demonstrate that the evidence is legally insufficient to support
the finding even when viewing it in a light most favorable to the
court below." Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT
94, ¶ 21, 54 P.3d 1177. Accordingly, Clark was required to
"present, in comprehensive and fastidious order, every scrap of
No. 20020338
6
competent evidence introduced at [the hearing] which supports the
very findings [he] resists." Chen v. Stewart, 2004 UT 82, ¶ 77,
100 P.3d 1177. In short, he should have played the "devil's
advocate" by "remov[ing] [his] own prejudices and fully
embrac[ing] the [State's] position." Id. ¶ 78 (internal
quotations omitted). Clark's tactic of simply rearguing and
recharacterizing the trial court's factual findings does not
constitute marshaling. Id. ¶ 77 ("What appellants cannot do is
merely re-argue the factual case they presented in the trial
court."). We therefore affirm the trial court's findings that
Clark committed each of the alleged acts identified by the trial
court, that he did so knowingly, and that each contemptuous act
was proven beyond a reasonable doubt. See id. ¶ 80 ("If the
marshaling requirement is not met, the appellate court has
grounds to affirm the court's findings on that basis alone.").
Having rejected Clark's challenge to the trial court's factual
findings, we rely on those findings for our remaining analysis.
II. DID THE TRIAL COURT'S FACTUAL FINDINGS JUSTIFY
CLARK'S CONTEMPT CITATION?
¶18
We next consider whether the trial court's factual
findings provide a sufficient basis for the order of contempt.
We review the trial court's application of its findings of fact
to the applicable legal standard for abuse of discretion. See
Clark v. Clark, 2001 UT 44, ¶ 14, 27 P.3d 538. In other words,
having concluded that the trial court's findings of fact are not
clearly erroneous, "[w]e review [the] trial court's exercise of
its contempt power to determine whether it exceeded the scope of
its lawful discretion." Shipman v. Evans, 2004 UT 44, ¶ 39, 100
P.3d 1151.
¶19
Before proceeding with our review, we note two things.
First, Clark's challenge to the contempt order focuses on his
contention that the trial court's version of the events was
clearly erroneous and therefore did not support the order. Clark
did not address, as we do here, whether the facts as found by the
trial court support the contempt order. Second, the trial
court's findings of fact produced a single contempt citation.
Clark was held in contempt for a continuous course of misconduct
throughout the four-day trial, not for six discrete acts of
contempt. Accordingly, rather than determining whether each
discrete act rises to the level of contempt, we consider Clark's
conduct as a whole unless some special analysis of a particular
finding is warranted.
¶20
The trial court's conclusion that Clark violated its
order on the motion in limine merits such particularized
7
No. 20020338
analysis. Under Utah Code section 78-32-1, "[d]isobedience of
any lawful judgment, order or process of the court" constitutes
contempt. Utah Code Ann. § 78-32-1(5). We elaborated on this
particular subsection in Von Hake v. Thomas, 759 P.2d 1162 (Utah
1988), stating that a party seeking to "prove [criminal] contempt
for failure to comply with a court order" is required to
demonstrate, beyond a reasonable doubt, "that the person cited
for contempt knew what was required, had the ability to comply,
and intentionally failed or refused to do so." Id. at 1172.
¶21
Each of these requirements has been satisfied here.
The trial court found that its order prevented Clark from
"ask[ing] the medical examiner about the toxicology report" and
mandated that "only certified convictions for felonies or any
crime involving an act of dishonesty could be used to impeach a
witness." The court also found that Clark knew and understood
the content of its order and "had the ability to comply" with it,
but nevertheless "willfully and intentionally" violated it. Most
importantly, the court found each of these elements to have been
established beyond a reasonable doubt.
¶22
Having concluded that Clark's violation of the trial
court's order on the motion in limine satisfied the requirements
for a finding of contempt under Von Hake, we now examine Clark's
conduct as a whole in order to determine whether the trial court
abused its discretion in finding that conduct contemptuous.4 We
conclude that it did not.
¶23
Not only did Clark twice contemptuously flaunt a valid
court order in violation of section 78-32-1(5) of the Utah Code,
he also attempted to frighten the jury by alluding to threats of
violence, disrespectfully and defiantly abandoned bench
conferences, and attempted to tamper with a crucial piece of
4 Clark insinuates that each instance of contemptuous
behavior, not just those constituting a violation of a court
order under section 78-32-1(5), must comply with Von Hake's
three-part test. We disagree. The Von Hake test comes into play
only when "prov[ing] contempt for failure to comply with a court
order." 759 P.2d at 1172. Our statement in Thomas v. Thomas,
569 P.2d 1119 (Utah 1977), that a party must prove what would
become the three Von Hake elements "in order to justify a finding
of contempt and the imposition of a jail sentence," id. at 1121,
is not to the contrary inasmuch as Thomas involved only contempt
for violation of a court order, id. at 112021.
No. 20020338
8
evidence.5 This conduct independently qualifies as contempt
under other subsections of section 78-32-1. Specifically, it
constitutes (1) "[d]isorderly, contemptuous or insolent behavior
toward the judge . . . , tending to interrupt the due course of a
trial," Utah Code Ann. § 78-32-1(1); (2) "[m]isbehavior in
office, or other willful neglect or violation of duty by an
attorney," id. § 78-32-1(3); and (3) "unlawful interference with
the process or proceedings of a court," id. § 78-32-1(9). We
therefore hold that the trial court did not abuse its discretion
in relying on those acts to hold Clark in contempt.
III. DID THE TRIAL COURT'S ALLEGED BIAS INTERFERE WITH
CLARK'S OBLIGATION TO DILIGENTLY REPRESENT HIS CLIENT?
¶24
Clark argues that the trial court demonstrated bias by
issuing rulings that were erroneous and damaging to his case and
by preventing him from employing trial strategies and techniques
that he would have otherwise employed. Clark argues that this
bias adversely influenced the court's management of the trial and
curtailed his ability to zealously represent his client. We
first explore Clark's claim that the trial court was biased
against him. We then explore the relationship between the
5 The State concedes that the trial court's finding that
Clark based his closing argument on facts not in evidence, taken
alone, does not rise to the level of contempt. But it
nevertheless argues that we should rely on that finding because
Clark's argument was merely an extension of his earlier attempt
to induce the medical examiner to testify as to the results of
the toxicology report. We are mindful of Clark's failure to
properly challenge the trial court's finding of fact on this
issue, we doubt that evidence of cocaine metabolite in the
victim's system supports the inference that the victim was
"hopped up on coke," and we agree that the events of the trial
should be viewed as a whole, but we nevertheless reject the
State's argument. The fact is that Clark succeeded, however
underhandedly, in getting the information in the toxicology
report admitted into evidence and that attorneys making closing
arguments "have a right to discuss fully from their standpoints
the evidence and the inferences and deductions arising
therefrom." State v. Lafferty, 2001 UT 19, ¶ 92, 20 P.3d 342
(internal quotations omitted). The fact that we side with Clark
on this issue, however, does not require reversal of Clark's
contempt citation. Even if we ignore the trial court's finding
that Clark inappropriately based his closing argument on facts
not in evidence, the remaining findings paint a vivid picture of
Clark's disrespect for the authority of the court and the
processes of justice.
9
No. 20020338
contempt order and Clark's duty to zealously represent his
client.
A. Was the Trial Court Biased?
¶25
To establish bias, Clark points to a letter the trial
court sent to the Utah State Bar following the hearing on the
State's motion in limine. Evidently, the trial court was
unimpressed with both Clark's comportment at the hearing and
disparaging comments that Clark had made thereafter to a local
newspaper. It accordingly sent the letter requesting an
investigation into Clark's conduct. Clark included the letter as
an addendum to his brief, claiming that it is part of the record.
¶26
The State contends that we cannot consider the letter
because it is not part of the record. Relying on Yost v. State,
640 P.2d 1044 (Utah 1981), Clark disagrees, arguing that the
letter is part of the record because the trial court, as the
letter's author, was aware of it. We find the circumstances
presented by Yost to be distinguishable from those presented in
this case and accordingly agree with the State.
¶27
As a general rule, we "will not consider evidence not
made part of the record on appeal." Lovendahl v. Jordan Sch.
Dist., 2002 UT 130, ¶ 51, 63 P.3d 705. But in Yost, we concluded
that an affidavit attached to a motion for summary judgment and
"presented to the same judge that subsequently tried the case,
sitting without a jury," was part of the record. 640 P.2d at
1047. That conclusion, however, arose from "facts peculiar to
[that] case." Id. In Yost, we used the word "record" to mean
"the record upon which the decision was based." Id. (emphasis
added).
¶28
In this case, there is no indication that the trial
court relied on the letter in issuing the contempt order. The
letter raised concerns about Clark's behavior during the pretrial
hearing on the State's motion in limine and his comments to the
media regarding the court's resolution of that motion, neither of
which provided a basis for the subsequent contempt order.
¶29
In addition, Clark merely contends that the trial
court, as the letter's author, was aware of the letter. The fact
that the trial court was aware of the letter does not mean that
the letter was presented to it or that the letter provided a
basis for its decision. We are cognizant of Clark's claim that
he could not have presented the letter to the trial court because
he was unaware of it. Nevertheless, Yost--the only case on which
Clark relies--simply does not contemplate classifying an item as
part of the record on appeal unless that item was presented to or
No. 20020338
10
considered by the trial court. Clark's reliance on Yost is
therefore misplaced, and Clark has provided us with no other
justification for departing from our general practice of
declining to consider evidence not presented to the trial court.
¶30
In any event, however, the letter is not evidence of
bias. In writing the letter and reporting Clark's conduct to the
Utah State Bar, the trial court was merely discharging its duty
to report ethical violations. See Utah Code of Judicial Conduct,
Canon 3D ("A judge should take or initiate appropriate
disciplinary measures against a . . . lawyer for unprofessional
conduct of which the judge may become aware."). We cannot
conclude that a judge becomes biased simply by complying with
ethical rules, and we encourage judges to report unethical
conduct whenever it occurs.
¶31
Moreover, all of Clark's allegations of bias center on
the trial court's various responses to his in-court behavior.
Specifically, Clark asserts that (1) the trial court demonstrated
its bias by erroneously reprimanding him for his antics; and
(2) because the trial court's findings were clearly erroneous,
they were the product of bias. "[B]ias and prejudice are only
improper," however, "when they are personal," In re Inquiry
Concerning a Judge, 2003 UT 35, ¶ 6, 81 P.3d 758 (internal
quotations omitted), and such bias "must usually stem from an
extrajudicial source, not from occurrences in proceedings before
the judge," id. ¶ 7 (internal quotations omitted). Clark's first
argument is without merit because the contempt order was based
only on Clark's in-court conduct, which was indeed reprehensible.
Clark's second argument similarly fails because, as previously
discussed, the trial court's findings of fact were not clearly
erroneous and more than adequately support the contempt order.
¶32
We find that the trial court demonstrated admirable
restraint, not bias, in its management of the trial and in its
dealings with Clark. Because Clark's contemptuous acts occurred
"in the immediate view and presence of the court," the court
would have been justified in summarily punishing Clark. See Utah
Code Ann. § 78-32-3. Instead, the trial court made every effort
to keep the trial running smoothly, admonishing Clark only out of
the jury's presence and waiting until after the conclusion of the
trial to give Clark a full hearing on the State's motion to hold
him in contempt. Because that degree of patience is not
indicative of bias, and because Clark has failed to establish any
extrajudicial source of the alleged bias, we reject Clark's claim
of bias.
11
No. 20020338
B. The Relationship Between Contempt and
Counsel's Duty of Zealous Representation
¶33
We now turn to Clark's claim that the trial court's
bias infringed on his ability to zealously represent his client
as required by rule 1.3 of the Utah Rules of Professional
Conduct. Clark also contends that his violation of the court's
order was not contemptuous because it did not demonstrate a level
of obstinacy sufficient to remove his actions from the realm of
zealous advocacy.
¶34
Our conclusion that the trial court was not biased
obviates the need for us to address Clark's claim that the
court's bias kept him from zealously advocating his client's
interests. We nevertheless believe it appropriate to address
Clark's general argument that the duty of zealous advocacy
imposed by rule 1.3 somehow insulated his actions from contempt
proceedings.
¶35
Rule 1.3 means exactly what it says: attorneys must
"act with reasonable diligence and promptness in representing a
client." Utah R. Prof'l Conduct 1.3. Clark suggests that rule
1.3 constitutes a license to advocate his clients' interests
"despite opposition, obstruction or personal inconvenience." Id.
cmt. In essence, Clark's argument is that "zealous advocacy"
includes any behavior except that which demonstrates an extremely
high degree of obstinacy. We disagree. Zealous advocacy is
advocacy within the bounds set by court orders and the rules of
ethics. See id. (noting that attorneys "may take whatever lawful
and ethical measures are required to vindicate a client's cause
or endeavor" (emphasis added)). It is not a license to seek a
particular result without regard to such orders and rules, even
unfavorable and inconvenient ones. By definition, then, an
attorney who violates court orders and breaks ethical rules is
not zealously advocating his client's cause and cannot claim
immunity from contempt proceedings.
¶36
Court orders and ethical rules are not the kind of
"obstruction" to which rule 1.3 refers, nor are they an
"inconvenience" to be surmounted or a form of "opposition" to be
overcome. The rules of ethics dictate that attorneys may not
protest adverse rulings by violating them in the name of zealous
advocacy. The proper method for contesting an adverse ruling is
to appeal it, not to violate it.
No. 20020338
12
IV. DID THE TRIAL COURT ABUSE ITS
DISCRETION IN SENTENCING CLARK?
¶37
Having disposed of Clark's challenges to the substance
of the contempt order, we now address Clark's claim that his
sentence of thirty days in jail, with no work release or
possibility of time off for good behavior, was excessive and
constituted an abuse of discretion. A trial court's sentence for
contempt, like the exercise of its contempt power, is reviewable
for abuse of discretion. Thurgood v. Uzelac (In re S.T.T.), 2003
UT App 439, ¶ 7, 83 P.3d 398.
¶38
Utah Code section 78-32-10 empowers courts other than
justice courts to impose "a fine not exceeding $1,000,"
imprisonment "not exceeding 30 days, or both." Utah Code Ann.
§ 78-32-10. We have held, however, that a court should not
imprison a contemnor "unless [the contemnor] has manifested such
obstinacy in disobedience of the court order that it is necessary
to accomplish that which equity and justice demand." Thomas v.
Thomas, 569 P.2d 1119, 1121 (Utah 1977).
¶39
Clark's behavior in this case satisfies this
requirement. Clark knowingly violated a lawful court order on
two separate occasions, sought to frighten and prejudice the
jury, demonstrated a lack of respect for the court, and tried to
alter an important piece of evidence. During Clark's contempt
hearing, the trial judge admonished Clark:
I've never, never witnessed anybody like you
in a courtroom. I just think you showed
total lack of respect for the legal system.
You showed a lack of respect for the court,
the prosecutors, the witnesses, the victim's
family. My impression is that this was
simply an attempt to create chaos in the
courtroom. You wanted to disrupt the
proceedings, you wanted to shock the jury,
and you wanted to sensationalize this case.
We agree that Clark's conduct demonstrated the requisite
obstinacy to justify a jail sentence. We therefore hold that the
sentence imposed by the trial court, which was within the limits
specified by section 78-32-10, fell within the scope of its
discretion.6
6 Section 78-32-10 places no limits on a court's power to
withhold work release or time off for good behavior. See Utah
Code Ann. § 78-32-10.
13
No. 20020338
CONCLUSION
¶40
Because Clark did not properly marshal evidence in
support of the trial court's findings of fact, he cannot
challenge them on appeal. Those findings, which bespeak an
attorney who, in a course of continuous conduct, defied the court
and the rules of ethics almost at every turn, adequately support
the contempt order. Contrary to Clark's argument, the trial
court was not biased, but appropriately sought to correct Clark's
behavior in a restrained manner. Finally, the sentence the trial
court imposed was suitably tailored to punish Clark's
contemptuous behavior. Affirmed.
---
¶41
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish's
opinion.
No. 20020338
14