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STATE v. JENKINS12/12/1997
ls to do so and does not offer an excuse, all matters relevant to the determination of contempt happen in court"; contempt finding affirmed for attorney's tardiness and failure to explain.); Zeigler v. State, 806 P.2d 1131 (Okla. Crim. 1991) (attorney's failure to appear at first day of criminal trial due to alleged conflict with another case, coupled with his unsatisfactory explanation for his failure to proceed with trial after being ordered to, treated as a direct contempt).
Hybrid Contempt: See, e.g., Matter of Williams, 120 Idaho 473, 478, 817 P.2d 139 (1991) ("We find the hybrid form of direct contempt argument persuasive."); Curtis v. State, 625 N.E.2d 496, 498 (Ind. App. 1993) ("We find the hybrid approach to be fair and sensible, and to comport with the requirements of due process."); In Re Yengo, 84 N.J. 111, 417 A.2d 533 (1980), cert. denied 449 U.S. 1124 (1981); and Roselle v. State, 509 P.2d 486, 488 (Okla. Crim . 1973), overruled on other grounds Gilbert v. State, 648 P.2d 1226, 1231 (Okla. Crim. 1982). See also cases cited at 13 A.L.R.4th 122, §§ 9-11.
Recent cases continue to show this split of authority. See, e.g., In re Marriage of Johnson, 939 P.2d 479 (Colo. App. 1997) (reversal of summary punishment for direct contempt against attorney who telephoned judge long distance from Florida at time of scheduled court appearance after request for continuance was denied; attorney's conduct showed, at best, indirect contempt); In re Billy L. Spruell, 227 Ga. App. 324, 489 S.E.2d 48 (1997) (attorney who accepted DUI case 4 days before trial, but left on vacation to remote area before knowing whether request for continuance had been granted or denied, found guilty of indirect criminal contempt); Curtis, 625 N.E.2d at 498 (hybrid contempt case in which finding of direct contempt against prosecutor who failed to appear for scheduled trial date reversed; prosecutor's explanation that the trial did not appear on his calendar was not inadequate on its face, thus entitling him to indirect contempt proceeding procedural safeguards).
We have reviewed the rationale for each of the three contempt concepts against the background of our own case law. We favor the hybrid contempt approach, which we adopt and apply here. Yengo, 84 N.J. 111, discusses the three approaches and sets out the reasoning favoring the hybrid label.
In Yengo, defense counsel Yengo failed to appear during a complex criminal conspiracy jury trial. Burns, an associate from Yengo's office who was unfamiliar with the case, appeared. The judge asked Burns about Yengo's absence. Burns said that Yengo was out of the country and had asked Burns to take his place while he was gone. The judge spoke with Yengo's daughter, who said that her father
had taken a 4-day vacation in Bermuda. The judge sent Yengo a telegram directing him to appear on the next trial date after his expected return. Yengo appeared, explaining that he had been in Bermuda on business and had not told the court because he did not know he would be going until late on the day before departure. The judge cited Yengo for contempt in the presence of the court and later imposed a fine of $500. On appeal, Yengo argued that his offense should have been treated as an indirect contempt and he had the right to a jury trial before another judge. The New Jersey Supreme Court affirmed the trial court, reasoning:
"We conclude that the mere unexplained absence of an attorney is a hybrid. [Citations omitted.] . . . The characterization of the contempt as direct or indirect should be deferred until after the attorney has an opportunity to explain his absence.
"If there is an adequate explanation,
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