FSM SUPREME COURT
APPELLATE DIVISION
Cite as In re Michael K. Powell,
5 FSM Intrm. 114 (App. 1991)

[5 FSM Intrm. 114]

In re Michael K. Powell.

 APPEAL CASE NO. P3-1990
(From Crim. Case No. 1990-504)

OPINION

Argued :  March 7, 1991
Decided:  July 26, 1991
 
Before:
      Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
      Hon. Edwel H. Santos, Temporary Justice, FSM Supreme Court*;
      Hon. Alberto C. Lamorena III, Temporary Justice, FSM Supreme Court**;

      * Chief Justice, Pohnpei State Supreme Court
      **Presiding Judge, Superior Court of Guam

APPEARANCES:
      For the Appellant:     Mr. Robert Coate
                                          Public Defender, Yap
                                          P.O. Box 425
                                          Colonia, Yap, FM  96943

      For the Appellee :     Mr. Douglas J. Juergens
                                           Assistant Attorney General
                                           Office of the Attorney General
                                          P.O. Box PS-105
                                          Palikir, Pohnpei, FM  96941

*    *    *    *

HEADNOTE
Contempt
      Where the record lacked any identifiable order directing a particular counsel to appear before the court, insofar as the court's expectation was that "somebody" from the Office of the Public Defender appear, no affirmative duty to appear existed, nor did any intentional obstruction of the administration of justice occur to support the lower court's finding of contempt against counsel.  In re Michael K. Powell, 5 FSM Intrm. 114, 117 (App. 1991).

*    *    *    *
[5 FSM Intrm. 115]

COURT'S OPINION
PER CURIAM:
      This is an appeal by former Chief Public Defender Michael K. Powell from the lower court's finding him guilty of contempt of court in violation of 4 F.S.M.C. 119(1)(a) and 119(1)(b) June 15, 1990.  For the reasons set forth below the decision of the trial court is reversed.

I. Facts
      On June 13, 1990, Joseph Phillip of the FSM Office of the Public Defender appeared before the lower court on behalf of a criminal defendant after having filed a notice of conflict of counsel.  Mr. Phillip sought to withdraw himself and the Office of the Public Defender on the bases of his family ties to the deceased victim's family and a conflict of interest imputed to the Office of the Public Defender.  He advised the court he was willing to proceed on the initial appearance and bail hearing until the court ordered the appointment of outside counsel.

      In expressing its reluctance to disqualify the entire Office of the Public Defender, the court stated in part, "I would urge you to contact other people within the Public Defender's office and have that office step forward and produce somebody...in the Office of the Public Defender who will represent this defendant."  The court further stated, "I expect that the Public Defender's Office will continue to represent this client," and concluded, "[I]f...everybody that works in the program takes a position that he is ethically prohibited from such representation, a carefully developed motion will have to be put before the court and approved before the court would appoint somebody on a pro bono basis."  The hearing on the initial appearance continued. Subsequently the court adjourned until the following day, June 14, at which time the defendant's bail hearing would be held.

      On June 14, Mr. Phillip appeared on behalf of the defendant.  The court advised him that it did "not believe that other members of the Public Defender's Office would have a conflict" and expressed that it was "concerned" about Mr. Phillip's representation of the defendant.

      Once again Mr. Phillip requested the appointment of outside counsel or, in the alternative, another staff in the Public Defender's Office.  The court responded, "[W]hy can't the Public Defender produce an attorney here?  Why am I supposed to involve myself administratively in the Public Defender's Office?"  The court further stated, "I want somebody from the Public Defender's Office here, and the Court is not going to go in and try to select who it should be."  The court then expressed its displeasure over Mr. Phillip's position, requested Mr. Powell's presence and also stated, "If it can't be Mr. Powell, then it must be somebody else.  I want somebody here so that we can proceed."

[5 FSM Intrm. 116]

      After a brief recess Mr. Powell appeared and reasserted Mr. Phillip's imputation of a conflict of interest to the entire Public Defenders Office.  The court then stated that "it is an administrative matter with the Public Defender's Office.  I don't care who you put up there, but you put somebody up there and let's go forward...it's either you tell Mr. Phillip to proceed, or you yourself proceed, or you get somebody else here immediately."

      The court ordered the prosecutor to proceed with its direct examination of the witness.  At the conclusion of direct examination, Mr. Powell advised the court the Public Defender's Office would proceed with cross examination under protest.  Mr. Phillip then commenced his examination.

      The next morning, June 15, the hearing continued.  Mr. Phillip appeared on behalf of the defendant.  Mr. Powell was not present.  The court inquired of Mr. Phillip as to Mr. Powell's whereabouts and stated, "I just cannot imagine how either you or he thought that he was not expected to appear this morning...It seems as though you and particularly Mr. Powell are being directly contemptuous of this Court...Nobody ever said he didn't need to come today...I want Mr. Powell here."1

      After a brief adjournment, Mr. Powell appeared and explained to the Court that he did not appear based on the court's determination that Mr. Phillip had no conflict. He further pointed out that the court was advised the day before that Mr. Phillip was willing to proceed with the bail hearing under protest, particularly since the defendant was still in custody.

      The court then expressed its dissatisfaction with Mr. Powell's explanation for his failure to appear and held Mr. Powell in contempt of court stating, "When you were brought yesterday before the Court, you were never dismissed, you knew you're in this proceeding today."

      Five and one half weeks later the court issued its Memorandum of Decision. There the court interpreted the primary goal of Mr. Powell's "failure to relieve Mr. Phillip from the obligation to go forward" as a demonstration of displeasure with the Court's ruling on a conflict issue asserted by the Office of the Public Defender in an unrelated criminal matter. The court stated that Mr. Powell was under a duty either to appear at the beginning of the June 15 hearing or to obtain advance agreement by the court that his presence would not be required.  The court noted that Mr. Powell was aware of this duty and intentionally failed to fulfill it "as a form of resistance to [the] June 14 order...intending that his absence would obstruct the administration of justice."

[5 FSM Intrm. 117]

II. Legal Analysis
      In this appeal we must initially determine whether Mr. Powell's failure to appear was in violation of a June 14 court order to appear.  We have carefully reviewed the record and recited above those portions of the record which most accurately reflect what occurred below.  Although we are fully cognizant of and appreciate the lower court's strong desire to proceed without undue delay or obstruction, we are unable to glean from the record of June 14 any identifiable order directing Mr. Powell to appear on June 15.  In fact, on both June 13 and 14 the court specifically declined to involve itself administratively in the Office of the Public Defender and expressed its expectation that "somebody" from that office appear.

      Further, we are not persuaded by the evidence before us that Mr. Powell was under the impression that he was subject to a court order to appear.  The posture of the discussion between counsel and the court supports the conclusion that until the court issued a ruling on the conflict issue, Mr. Phillip would proceed, albeit under protest, with the bail hearing.  We note that Mr. Phillip remained the attorney of record and was at all times present and ready to proceed.

      Finally, since Mr. Powell was under no affirmative duty to appear on June 15, we are also unable to sustain the court's finding that Mr. Powell intentionally obstructed the administration of justice.  There are no facts before us which may support the court's conclusion regarding Mr. Powell's motivation.  Although the record reflects a discussion between Mr. Phillip and the court regarding the court's conflict ruling in the unrelated criminal matter, we note that this colloquy occurred when Mr. Powell was not present in the courtroom.  Beyond this, motivation is not an element of criminal contempt.  Because of the absence of a June 14 order to appear,we are unable to find that Mr. Powell engaged in any culpable conduct creating a risk of court delay which constituted an intentional obstruction.

Conclusion
      There is insufficient evidence to support the trial court's findings that Mr. Powell was under a duty to appear pursuant to a June 14 court order.  There is also insufficient evidence to support the trial court's finding that Mr. Powell intentionally obstructed the administration of justice.  Accordingly we reverse the lower court's contempt finding and remand the case to the trial court for the entry of a dismissal of the contempt.

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Footnote:
 
1.  We note that by this time, Mr. Phillip had filed a Motion to Withdraw as Counsel, supported by an affidavit and legal memorandum.  It appears that the court's comments in this instance reflected its desire to address this motion with Mr. Powell being present.
                                                                                                                                                                                                                                                                                                           
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