GERALD WOOLEY CHERYL PETERSON WOOLEY v. SHERI BYNUM

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Court of Appeals of Washington, Division 3.

GERALD L. WOOLEY and CHERYL L. PETERSON WOOLEY, Respondents, v. SHERI A. BYNUM, Appellant.

No. 28597-9-III

Decided: March 15, 2011

- This appeal is from a finding of contempt and related sanction and follows conduct committed in the judge's presence.   We conclude that both the finding of contempt and the sanction were within the discretionary authority of the superior court judge and was an appropriate exercise of that authority.   We therefore affirm the finding of contempt.   We also affirm the court's imposition of a permanent protection order.

THE COURT:  Ms. Bynum, have a seat, please.

Ms. Bynum:  She's (inaudible) to call my daughter-

THE COURT:  Excuse me-

Ms. Bynum:-(inaudible)-

THE COURT:  Ms. Bynum, I think you know what happens when you have an outburst in court [1]-

Ms. Bynum:  Yes, your Honor-

THE COURT:  Let me just refresh your memory.

Ms. Bynum:  Okay.

THE COURT:  If there's any more outbursts, such as slapping your hands on the-on the bench in front of you, or having any kind of verbal outburst, trying to interrupt, then-In fact, Madam Clerk, I think it might be a good idea to go ahead and call for a sheriff-just because it's a very volatile situation for everyone and I want to have the ability to immediately react if anybody decides to get out of hand.

And I'm talking to you right now, Ms.-Ms. Bynum.   And I want to make sure you keep yourself completely under control-

Ms. Bynum:  I'm very tired,-

THE COURT:  Make sure you-

Ms. Bynum:-your Honor.   I'm so sorry.

THE COURT:  It's not a matter of trying.   You know how to do it, and it's going to need to occur.   It's going to need-you're going to need to actually do the behavior of controlling yourself.

Report of Proceedings (RP) at 126-27.

The hearing resumed several weeks later.   Ms. Bynum again disrupted the proceedings and Judge Baker again intervened to control the courtroom:

Ms. Bynum:  (Inaudible)-

THE COURT:  Okay. Ms. Bynum, please.   Ms. Bynum, I'm not going to tolerate you making commentary-

Ms. Bynum:  (Inaudible), your Honor.

THE COURT:-until you have an opportunity to get on the witness stand yourself and have a question directed to you.

Ms. Bynum:  (Inaudible)-

THE COURT:  Ms. Bynum, you're really skating on thin ice.

And I think, Madam Clerk, we should probably go ahead and call to ask for a deputy sheriff to come.

RP at 238-39.

Ms. Bynum again disrupted the proceedings and Judge Baker again intervened:

THE COURT:  And Ms.-One more time, Ms. Bynum.   One more time and I'm going to have the officer that's in the courtroom-

Ms. Bynum:  I'm sorry.

THE COURT:-arrest you for contempt of court.   You understand?

Ms. Bynum:  Yes, I do-

THE COURT:  All right.

Ms. Bynum:-I'm sorry.

THE COURT:  That's the last time.

You know, literally, that's the last time.

RP at 283.

The hearing continued after a lunch break with the testimony of Mr. Wooley.   Ms. Bynum laughed out loud in the courtroom and so Judge Baker again took her to task:

[Mr. Wooley]:  ․ I don't know what Ms. Bynum finds so funny about this.   She keeps busting up laughing.   These are my children.

THE COURT:  Okay. Just a second, Mr. Wooley.

We'll get ourselves under control, here, Ms. Bynum, if you would, please.

Ms. Bynum:  Yes, your Honor.

THE COURT:  All right.

RP at 306.

But Ms. Bynum again disrupted proceedings during Mr. Wooley's testimony.   Judge Baker then held her in contempt and had her removed from the courtroom:

[Mr. Wooley]:-first of all, I couldn't read the doctor's handwriting-.

Ms. Bynum:-asking (inaudible)?

THE COURT:  Okay. That's it.   Ms. Bynum is going to be held in contempt for her outbursts, and I'm-I'm going to have these officers take her in custody.   I am going to have her removed from the courtroom ‘cause she's going to be disruptive even further than she has been, repeatedly told not to disrupt the proceedings.

And so, we'll have-Ms.   Coufal [Ms. Bynum's attorney] can proceed without her presence.   She's created this herself.

So,-

Ms. Coufal:  Your Honor, is she going to be permitted to come back to testify?

THE COURT:  Well,-

Ms. Coufal:  Because-

THE COURT:-I'll take that up at some point-

Ms. Coufal:  I think she has every right to testify.

THE COURT:  I'll take that up.   She certainly may have forfeited that right, Ms. Coufal.

RP at 313.

The court ordered Ms. Bynum to serve 10 days in jail for contempt.   The order followed Judge Baker's written “Findings and Order on Summary Contempt” where she found

Sheri Bynum was repeatedly warned not to have outbursts or interrupt the proceedings.   Finally, she was told that, if she had another outburst, she would be held in contempt of court and arrested and removed from the courtroom.   After the warning, she again had an outburst during the testimony of Mr. Wooley.   This act occurred in the presence of the undersigned, in open court, on the date shown below.

Clerk's Papers (CP) at 40.

The court found her in “summary contempt of court,” committed her to a jail term, and ordered that she not be allowed to “participate further in these proceedings.”   CP at 41.

The court then addressed Mr. and Ms. Wooley's petition to renew the protection order against Ms. Bynum.   The court found that Ms. Bynum had repeatedly violated the original protection order by contacting Mr. and Ms. Wooley, that Ms. Bynum suffered from untreated chemical dependency, and that Ms. Bynum's attempts to contact KW and WW were detrimental to their mental well being.   The court imposed a lifetime protection order against Ms. Bynum as to Mr. and Ms. Wooley.   The court also imposed a protection order against Ms. Bynum as to KW and WW until they reach the age of 18.   The court also conditioned revocation of that protection order on a showing that she was drug and alcohol free and had otherwise addressed her addictions.

DISCUSSION

Ms. Bynum assigns error to the judge's finding of contempt and the judge's refusal to allow her to speak in mitigation of the contempt citation.   Specifically, she argues that her conduct should not have been characterized by the court as contemptuous because it did not meet the definition of contemptuous-she was not loud, abusive, aggressive, angry, and so forth.   She also argues that she should not have been denied the opportunity to speak or testify against the protection order the court ultimately renewed.

Standard of Review

Punishment for contempt of court lies within the discretion of the trial judge.  State v. Dugan, 96 Wn.App. 346, 351, 979 P.2d 885 (1999).   We review the judge's ruling for abuse of that discretion.  State v. Jordan, 146 Wn.App. 395, 401, 190 P.3d 516 (2008).

Standards of review, here abuse of discretion, implement judicial policies.   One of those policies requires or, at least, encourages that the judicial actor in the best position to make a given decision make that decision.  Amy v. Kmart of Wash. LLC, 153 Wn.App. 846, 855, 223 P.3d 1247 (2009).   And the best positioned judicial actor to make this decision was Judge Baker.   We did not preside over the proceedings in her courtroom.   So we have no sense of the atmosphere in the courtroom during those proceedings.   And the record we read does not, and cannot, convey the full import of the atmosphere in that Stevens County courtroom.   In a different context, the court in Coppo v. Van Wieringen 2 described the problem for a reviewing court:  “The reason may be outside the record-'the lights and shadows' of the trial, the very atmosphere of the courtroom, those things which are manifest to the trial judge but which cannot be captured for the record.”

Domestic cases and family-related disputes, in particular, can be extremely volatile to the point of dangerous for the parties, the witnesses, and the judge and so the kind of behavior shown here cannot be tolerated.   The Supreme Court in Illinois v. Allen addressed these concerns in the context of a criminal case:

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.   The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.   We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.   No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.

397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

Contempt

A trial court has inherent power to sanction for contempt.  State v. Hobble, 126 Wn.2d 283, 300, 892 P.2d 85 (1995) (constitutional court has inherent authority to summarily punish contempt committed in the court's presence and a hearing is not required).

“ ‘Contempt of court’ ” is the “intentional ․ [d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings.”  RCW 7.21.010(1)(a).

Here the court repeatedly warned Ms. Bynum not to disrupt the orderly proceeding of a hearing.   Ms. Bynum ignored those warnings and on six separate occasions chose to disrupt the proceedings.   We recognize that the transcript will not reveal the full extent of those disruptions, where the court reporter's attention is understandably focused on the testifying witness, counsel, and the court.   The court reporter could not hear some of her comments or reactions but obviously Judge Baker could and Judge Baker could see Ms. Bynum's conduct:

If there's any more outbursts, such as slapping your hands on the-on the bench in front of you, or having any kind of verbal outburst, trying to interrupt, then-In fact, Madam Clerk, I think it might be a good idea to go ahead and call for a sheriff-just because it's a very volatile situation for everyone and I want to have the ability to immediately react if anybody decides to get out of hand.

RP at 126 (emphasis added).

The judge showed great patience but then finally warned Ms. Bynum that another outburst would result in a finding of contempt and her removal from the courtroom.   Ms. Bynum disregarded the warning and had another outburst during the testimony of her ex-husband, Mr. Wooley, and Judge Baker ordered that she be seized.   The court then listened to and considered requests from Ms. Bynum's attorney to allow Ms. Bynum to testify as she was being removed from the courtroom.   The judge denied those requests and entered findings and conclusions of contempt.   RP at 313, 379-80, 401-04;  CP at 40.

Ms. Bynum's acts were intentional interruptions of a judicial proceeding.   RCW 7.21.010(1)(a).   They occurred in the presence of Judge Baker.   She imposed the sanction immediately after the acts.   Judge Baker gave Ms. Bynum an opportunity to mitigate (repeated warnings and argument from counsel).   The relevant order recites the necessary factual basis for the sanction.   CP at 40-41.   The contempt order here was handed down by an experienced and well regarded local trial judge.   This court was not subject to Ms. Bynum's disruptive behavior.   It was rather Judge Baker and those in her courtroom who were subject to that behavior.

Likewise, the actual “manner of maintaining order in the courtroom is within the trial judge's discretion”;  that is the actual sanction.  State v. DeWeese, 117 Wn.2d 369, 380, 816 P.2d 1 (1991).   We therefore also review that decision for abuse of discretion.  State v. Chapple, 145 Wn.2d 310, 324, 36 P.3d 1025 (2001).

The right to testify in one's own behalf is certainly a personal right of “fundamental” proportions.  State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996).   But it is not absolute.  Chapple, 145 Wn.2d at 318, 326.   Repeated, disruptive conduct by a defendant can result in a voluntary waiver of this right.  Id.

Ms. Bynum argues that the trial court's determination that she forfeited her right to testify was not justified.   She argues that even if her behavior was disruptive, the judge should have permitted her to testify.   Ms. Bynum relies on United States v. Ives, 504 F.2d 935 (9th Cir.1974), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), opinion reinstated in relevant part, 547 F.2d 1100 (9th Cir.1976).

In Ives, the Ninth Circuit Court of Appeals considered whether the trial court properly refused to allow a defendant to testify after the defendant was removed from trial for contumacious conduct.  Id. at 937.   On the question of waiver the court said:

It is evident that the conduct of a defendant in the courtroom can become so inconsistent with the necessary decorum for effective administration of justice that reasonable restraints are necessary.   It is even more evident that such conduct cannot be allowed when the defendant takes center stage on the witness stand.

Id. at 941.   The Ives court also noted, as we have, the discretion that should be given to the trial judge's conclusion that a defendant has waived his right to testify by way of his conduct:

Since we must judge the evidence from a cold record, the appellate court is not in as good a position as the trial judge to determine the effect a defendant's disruptive conduct may have had on the proceedings.   Even though facial expressions, gestures and other nonverbal conduct are often tremendously significant, they cannot be transcribed by the court reporter.   Therefore, great deference must be given to the decision of the trial judge.

Id. at 942.   The Ives court further pointed out that a trial judge should be able to consider the gravity of past disruptions, probability of continued disruption, and the possibility of violence if the defendant takes the stand.  Id.

Here, Ms. Bynum repeatedly disrupted the proceedings, she refused to heed repeated warnings to control her behavior, and the trial judge believed that she posed a risk to the rest of the courtroom-perhaps due to her history of destructive outbursts in court.   See Br. of Appellant at 6. Again, we give great deference to a trial judge's decision that a defendant waived her right to testify through her conduct.  Ives, 504 F.2d at 941.

Ms. Bynum argues that the court should have taken measures to protect her right to testify despite her behavior.   The Supreme Court has stated, “[W]hile the defendant should be afforded great protections to ensure his constitutional rights to be present at trial, this right is not absolute and certain circumstances may warrant the defendant's complete removal.”  Chapple, 145 Wn.2d at 324.   The trial court, then, had discretionary authority to prohibit Ms. Bynum from testifying and did not have to take extraordinary measures to protect her right.   The judge's repeated warnings were sufficient.

We conclude, as the trial judge did, that Ms. Bynum knowingly, intelligently, and voluntarily waived her right to testify by conducting herself inappropriately and by refusing to comply with warnings from the court.   The judge's refusal to return Ms. Bynum to the courtroom to explain her behavior was within Judge Baker's discretionary authority.

Protection Order

We also review a protection order for an abuse of discretion.  Hecker v. Cortinas, 110 Wn.App. 865, 869, 43 P.3d 50 (2002).   We review whether the judge's findings are supported by the evidence and whether those findings support the judge's conclusions.  Scott v. Trans-System, Inc., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003).   Conclusions of law are reviewed de novo.   State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).

Ms. Bynum argues that renewal of a protection order is a two-step process and she was denied her opportunity to meet the second step when the court prohibited her from testifying.   Ms. Bynum is correct that the process set forth in RCW 10.14.080(5) is a two-step process but she was not denied the opportunity to meet the second step.

The process of renewal first requires a petitioner to file a petition, and that petition must state the reasons why the petitioner seeks to renew the order.  RCW 10.14.080(5).   Then, the court must renew the order “unless the respondent proves by a preponderance of the evidence that the respondent will not resume harassment of the petitioner when the order expires.”  Id.

Here, Mr. and Ms. Wooley make a sufficient showing to support renewal of the order including, but not limited to, evidence of Ms. Bynum's repeated violations of the existing order and that she had a history of substance abuse.   RP at 24-25, 91-92, 402-04.   The burden then shifted to Ms. Bynum to show, by a preponderance of the evidence, that she would not resume the harassment.   Again, as we have concluded, Ms. Bynum waived her right to testify by her conduct in the courtroom.   She, nonetheless, could have presented other evidence to meet this burden.   The court asked if she had any other witnesses.   She did not.   The court's decision to make the protection order permanent is well supported by both fact and law.

We affirm the order of contempt, the sanction, and the protection order.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

_

Sweeney, J.

WE CONCUR:

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Korsmo, A.C.J.

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Siddoway, J.

FOOTNOTES

FN1. This reference is to a December 2007 child dependency case in which the court found Ms. Bynum in contempt of court and she stormed out of the courtroom damaging the door.   Br. of Appellant at 6 n.2..  FN1. This reference is to a December 2007 child dependency case in which the court found Ms. Bynum in contempt of court and she stormed out of the courtroom damaging the door.   Br. of Appellant at 6 n.2.

FN2. Coppo v. Van Wieringen, 36 Wn.2d 120, 140, 217 P.2d 294 (1950)..  FN2. Coppo v. Van Wieringen, 36 Wn.2d 120, 140, 217 P.2d 294 (1950).

Sweeney, J. FACTS Sheri A. Bynum and Gerald L. Wooley are divorced.   They are the parents of two minor children, KW and WW. Mr. Wooley has remarried.   Mr. and Ms. Wooley obtained a protection order restraining Sheri Bynum from any contact with them.   They moved to renew and extend that order in July 2009.   Apparently, Ms. Bynum continues to threaten and harass the family.   The case was transferred from Stevens County District Court to Stevens County Superior Court.   Mr. Wooley also petitioned to have KW declared an at risk youth (RCW 13.32A.191).   KW petitioned to be declared a child in need of services (RCW 13.32A.150).   Both petitions were set for a single hearing in August 2009.   Ms. Bynum appeared in court.   Ms. Bynum was not a party in either case.   She told Judge Rebecca Baker that she was there out of concern for her children.   The judge told Ms. Bynum that the Wooleys' protection order proceedings against Ms. Bynum had been transferred from district court to superior court and the judge then asked her if she was prepared to go ahead with that matter.   Ms. Bynum said she was and that her attorney would arrive shortly.   The court consolidated the three matters for the hearing, along with another petition for a protection order against Mr. Wooley sought by Lynda Turner.   KW was apparently living with Ms. Turner at the time.   The hearing on all of these matters proceeded uneventfully on the first day of the hearing.   Ms. Bynum sat in the jury box and watched the proceedings.   Things did not proceed as smoothly when the hearing resumed a few days later.   Ms. Bynum apparently stood up and tried to contact KW. Judge Baker instructed her to take her seat.   Later that same day, the court again admonished Ms. Bynum for disrupting the hearing: