Opinion
No. 12–P–57.
2013-01-16
COMMONWEALTH v. Brian HAYES.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
There is no merit to the defendant's contention that his conduct did not warrant the finding of criminal contempt entered against him. The defendant barged into a crowded courtroom while slamming the courtroom doors behind him, then charged the podium where a young woman was being addressed by the judge and thereafter defied in a disruptive manner various orders from the judge to step away from the podium and take a seat in the gallery. The judge was in a position far superior to ours (limited, as we necessarily are, solely to review of the cold record) to assess the defendant's tone and the effect his conduct had on the other persons in the courtroom and the progress of the court's business. As found by the judge, the defendant's conduct was “assaultive and totally disrupted the courtroom in [the judge's] presence.... The proceedings were disturbed and halted until custody was achieved.” The defendant's conduct fit within the bounds of criminally contumacious conduct, as explained in Commonwealth v. Brunnell, 65 Mass.App.Ct. 423, 424 (2006). There is likewise no merit to the defendant's suggestion that the judge was unwarranted in proceeding pursuant to Mass.R.Crim.P. 43, 378 Mass. 919 (1979), rather than Mass.R.Crim.P. 44, 378 Mass. 920 (1979), because removal of the defendant from the courtroom restored order and eliminated the need to proceed summarily. The use of summary proceedings was justified by the nature of the defendant's conduct. It was not essential for the judge to conduct the hearing immediately upon the occasion of the contumacious conduct: “ ‘[s]ummary’ contempt ‘does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial.’ “ Commonwealth v. Nicholas, 74 Mass.App.Ct. 164, 168 (2009), quoting from Sacher v. United States, 343 U.S. 1, 9 (1952). In our view, the delay was entirely consistent with the provisions of rule 43(b); if anything, the delay between his detention and the contempt hearing afforded the defendant more process than he was due, by furnishing the defendant an opportunity to retain counsel and prepare for the contempt hearing. See generally Vizcaino v. Commonwealth, 462 Mass. 266, 270–273 (2012) (discussing difference between rules 43 and 44).
Judgment affirmed.