Currie v. Schwalbach
| Citation | 390 N.W.2d 575,132 Wis.2d 29 |
| Decision Date | 14 May 1986 |
| Docket Number | No. 84-1811,84-1811 |
| Parties | In the Matter of the Findings of Contempt in State of Wisconsin v. Thomas M. Dewerth: Bruce CURRIE, Appellant, v. Honorable James B. SCHWALBACH, Circuit Court judge for Washington County, Respondent. |
| Court | Court of Appeals of Wisconsin |
Review Granted.
Robert J. Lerner of Perry, First, Reiher, Lerner & Quindel, S.C. Milwaukee, for appellant.
Bronson C. La Follette, Atty. Gen. and James H. McDermott, Asst. Atty. Gen., argued, for respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Bruce Currie appeals from an order of the trial court finding him in contempt of court and imposing a fine of $500 or, in lieu of payment, a sentence of thirty days in the county jail. 1
Upon appeal, Currie contends that: (1) his act was not a contempt of court; (2) the trial court's findings are insufficient to support the conclusion that a contempt of court occurred; (3) the trial court improperly used the summary procedures of sec. 785.03(2), Stats.; and (4) the trial court erred in failing to accord Currie an opportunity for allocution. We reject all of Currie's arguments with the exception of the latter. We remand for purposes of an allocution proceeding wherein Currie will have an opportunity to make a statement in mitigation of his offense.
Currie was summoned as a petit juror in the case of State of Wisconsin v. Thomas M. Dewerth. 2 The trial court, in the course of its voir dire of the petit jurors, inquired whether any member of the panel had experienced any dealings with the Washington County District Attorney's Office. Currie responded:
My brother was murdered by a drunk driver, and my family had dealings with the Washington County District Attorney's Office.
The trial court then asked Currie as to the extent of any possible prejudice. Currie responded:
I don't like anybody in the Washington County District Attorney's Office.
In light of this response, the trial court excused Currie. 3
As Currie stepped down from the jury box and passed near the defense table, he made a remark which was partially heard by the trial court. The remark, to the extent heard, prompted the trial court to At these proceedings, the trial court indicated it had heard only a portion of the comment. 4 Defense counsel then reported that Currie had said, "I hope they hang you." Counsel also reported that the remark was made with "feeling and expression." The trial court then stated that it had heard the "hang you" portion of the remark and proceeded to summarily find Currie in contempt of court and impose a fine of $1000. 5 The trial court also granted Dewerth's motion for a new jury panel, thus necessitating a continuance of the case.
immediately remove the jury panel from the courtroom and to conduct further proceedings concerning Currie.
Following the imposition of the fine, Currie attempted to speak but was halted by the trial court with the admonition that any further statements might draw a jail sentence. 6
Currie contends that his act was not a contempt of court. Section 785.01, Stats., defines a contempt of court, in part, as "intentional ... misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice...." Sec. 785.01(1)(a). Currie's conduct clearly qualified as contempt on both counts for it not only interfered with the proceeding and the administration of justice, but also aborted the entire trial. A more complete and classic contempt of court can hardly be imagined.
Currie argues that the trial court's finding that the jury panel and remaining petit The question of whether or not a defendant's act is a contempt of court is one which the trial court has far better opportunity to determine than a reviewing court. Schroeder v. Schroeder, 100 Wis.2d 625, 640, 302 N.W.2d 475, 483 (1981). Although the remedy for direct contempt may be harsh, an appellate court will not reverse except in a plain instance of mistake or abuse of discretion. In re Adam's Rib, Inc., 39 Wis.2d 741, 746, 159 N.W.2d 643, 646 (1968). In a setting where the judge is prompted to act summarily to punish for contemptuous conduct, the act has occurred under the eye of the court and the contemnor is present. Groppi v. Leslie, 404 U.S. 496, 504, 92 S.Ct. 582, 587, 30 L.Ed.2d 632 (1972). A hearing in a formal sense is not necessary because the judge has personally seen the offense and is acting on his own observations. Id.
jurors were "infected" [132 Wis.2d 36] by the remark is unsupported by the record. Currie contends that the trial court was required to conduct voir dire of the panel and the petit jurors in order to determine whether such taint actually existed. We disagree.
Adam's Rib holds that the standard of review for the trial court's findings in a contempt proceeding is whether the findings are contrary to the great weight and clear preponderance of the evidence. Adam's Rib 39 Wis.2d at 746-47, 159 N.W.2d at 646-47. Stated in current terms of standard of review, where a trial is to the court, we inquire whether the findings are clearly erroneous. See sec. 805.17(2), Stats. Here, we conclude they are not.
Although the trial court did not hear the entirety of Currie's remark, that portion which was heard ("hang you") prompted the trial court to take the immediate action of removing the jury from the courtroom and ordering Currie to remain. The trial court then informed itself as to the balance of the offending statement before summarily finding Currie in contempt. Neither Currie nor the prosecutor disputed defense counsel's recital and characterization of Currie's full statement. The trial court found that Currie made the remark while facing away from the bench. From this, it follows that the other petit jurors in the back of the courtroom or near the defense counsel table likely heard the remark and thus were "infected" thereby. This is precisely what the trial court found. The finding is not clearly erroneous.
Nor are we persuaded that the trial court was required to conduct further voir dire to specifically determine whether any of the potential jurors had actually heard the remark. As stated above, the trial court's finding that the panel was "infected" is a logical and fair inference from the physical facts. While such voir dire might strengthen the factual basis for the trial court's finding, it was not necessary to sustain it.
Currie next argues that the trial court erred by not expressly finding that Currie's act was intentional.
Contempt of court is defined as an "intentional ... misconduct...." See sec. 785.01(1)(a), Stats. It is undisputed that the trial court did not make an express finding as to the intentional nature of Currie's conduct. We, however, do not find this omission as fatal to the trial court's conclusion that a contempt of court occurred.
The trial court factually described Currie's conduct and its perceived effect upon the jury panel. The trial court then labeled the conduct a contempt of court. We hold these findings and conclusion sufficient to satisfy the statutory elements of contempt. In this regard, we also note that neither did the trial court expressly find that Currie's conduct interfered with a court proceeding or with the administration of justice. See sec. 785.01(1)(a), Stats. That these were the results of Currie's conduct, however, is readily apparent from the record of the proceedings and from the findings and conclusion that the trial court Next, Currie argues that even if it was not necessary for the trial court to expressly find that his conduct was intentional, the record otherwise does not show it to be so. Specifically, Currie contends that his actions must have had the purpose to interrupt or disrupt the proceedings. Here, Currie borrows from the criminal code, sec. 939.23(3), Stats., which defines "intentionally" as requiring that the "actor either has a purpose to do the thing or cause the result specified or believes that his act, if successful, will cause that result."
did make. The trial court's description of the conduct and its effect upon the proceedings, coupled with the conclusion that the conduct constituted a contempt of court, satisfies all the elements of a contempt, including intent.
However, the contempt statute, sec. 785.01(1)(a), Stats., requires only that the misconduct be intentional--not that a disruptive result be intended or even foreseen. Here there is no claim (nor any basis for one) that Currie's utterance of the remark was not intentional. 9
Cases from other jurisdictions, although addressed to the concept of "willfulness" as opposed to "intentional," are supportive of our holding. Willfulness in a civil contempt means a deliberate or intentional violation, as distinguished from an accidental, unintentional or negligent violation of an order. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir.1983); In re Mossie, 589 F.Supp. 1397, 1409 (W.D.Mo.1984), rev'd on other grounds, 768 F.2d 985 (8th Cir.1985). In the context of a contempt proceeding, willfulness is defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful. United States v. Baker, 641 F.2d 1311, 1317 (9th Cir.1981). Such willfulness may be inferred from admitted evidence. Id.
We therefore reject Currie's claim that the record does not support the existence of the element of intent.
We next examine whether the facts of this case permitted the trial court to use the summary procedures of sec. 785.03(2), Stats. We conclude they did.
The first sentence of sec. 785.03(2), Stats., allows a judge to impose a punitive sanction summarily when a contempt is committed in the presence of the court.
The judge presiding in an action or proceeding may impose a...
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