In Re: Contempt of Terry Gilbert (no. 64299) [appeal by Terry Gilbert] and in Re: Contempt of Michael Maloney (no. 64300) [appeal by Michael Maloney]

• Decision Date: 16 December 1993
• Docket Number: 64299,64300,93-LW-5312
• Parties: IN RE: CONTEMPT OF TERRY GILBERT (NO. 64299) [Appeal by Terry Gilbert] and IN RE: CONTEMPT OF MICHAEL MALONEY (NO. 64300) [Appeal by Michael Maloney]
• Court: Ohio Court of Appeals

IN RE: CONTEMPT OF TERRY GILBERT (NO. 64299)

[Appeal by Terry Gilbert]

and

IN RE: CONTEMPT OF MICHAEL MALONEY (NO. 64300)

[Appeal by Michael Maloney]

NOS. 64299, 64300

93-LW-5312 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

December 16, 1993

Criminal appeal from Common Pleas Court Case No. CR-281346

For Defendant-Appellant, Michael Maloney (64300): STEPHANIE TUBBS JONES, ESQ., Cuyahoga County Prosecutor, L. CHRISTOPHER FREY ESQ., Assistant Prosecuting Attorney, The Justice Center 1200 Ontario Street, Cleveland, Ohio 44113.

For Appellee, The Honorable Daniel O. Corrigan: STANLEY STEIN ESQ., 75 Public Square, Cleveland, Ohio 44113.

For Defendant-Appellant, Terry Gilbert (64299): JEROME EMOFF, ESQ., 620 Terininal Tower, Cleveland, Ohio 44113; JAY MILANO, ESQ., 600 Standard Building, Cleveland, Ohio 44113; GORDON S. FRIEDMAN, ESQ., 1700 Standard Bldg., Cleveland, Ohio 44113.

OPINION

HARPER J.

Appellants, Michael Maloney and Terry Gilbert, appeal from the contempt judgment imposed on them by the Cuyahoga County Court of Common Pleas. For the reasons set forth below, we reverse as to Mr. Maloney and affirm as modified as to Mr. Gilbert.

I.

The facts are as follows. Michael Maloney is an assistant prosecutor of Cuyahoga County responsible for the prosecution of a drug trafficking indictment against one defendant, Arthur McCoy. Terry Gilbert is Mr. McCoy's defense counsel. During the course of the trial of Mr. McCoy on July 23, 1992, defense counsel Gilbert called a character witness on behalf of his client to the stand. On cross-examination by the state, the prosecutor asked the witness whether he was aware that defendant in 1977 was convicted for drug trafficking (the offense for which he was presently under indictment). Mr. Gilbert objected to the questions and then proceeded to Mr. Maloney and covered Mr. Maloney's mouth with his hand. The court then excused the jury and both counsel were summoned to the court's chambers.

After the chambers discussion, the court stated on the record that the prosecutor ignored the instructions of the court during his cross-examination of defense witness. The court said it would deal later with the contempt issue. The jury was called back into the court and due to the conduct of both counsel, the court declared a mistrial.

On July 27, 1992 the court announced that it would address the issue of summary contempt. The court found the prosecutor, Mr. Maloney, in contempt of court for ignoring the parameters set by the court for his cross-examination of character witnesses. He was fined five hundred dollars ($500). Defense counsel, Mr. Gilbert, was also found in contempt for placing his hand over Mr. Maloney's mouth during trial. He was fined one thousand dollars ($1,000) and sentenced to five days in jail.

Both contempt appeals are consolidated for disposition, and the following errors are assigned by Maloney and Gilbert respectfully:

"ASSIGNMENT OF ERROR NO. I: THE TRIAL COURT ERRED IN FINDING APPELLANT IN CONTEMPT OF COURT WHERE SUCH FINDING WAS MADE IN AN ABSENCE OF INTENT TO VIOLATE A COURT ORDER.

"ASSIGNMENT OF ERROR NO. II: THE TRIAL COURT ERRED IN FINDING APPELLANT IN CONTEMPT OF COURT WITHOUT GIVING NOTICE OF THE CHARGES AND CONDUCTING A HEARING AS REQUIRED BY R.C. 2705.02.

"I. THE TRIAL COURT ERRED IN FAILING TO PROVIDE APPELLANT WITH NOTICE OF THE CHARGES AND A HEARING THEREBY DENYING APPELLANT DUE PROCESS OF LAW.

"II. THE TRIAL COURT ABUSED ITS DISCRETION IN DISPROPORTIONATELY PENALIZING APPELLANT BY IMPOSING A SENTENCE NOT REASONABLY COMMENSURATE WITH THE GRAVITY OF THE OFFENSE AND NOT CONSISTENT WITH THE PENALTY IMPOSED UPON THE PROSECUTING ATTORNEY.

"III. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT COMMITTED A CONTEMPTUOUS ACT IN THAT APPELLANT'S CONDUCT WAS NEITHER WILLFUL NOR INTENTIONAL."

Mr. Maloney in his first assignment argues that his contempt conviction should not lie because he did not intend to defy the court's ruling. He averred that the court's instruction that led to the contempt order was ambiguous which caused him to misunderstand the instructions.

R.C. 2705.01 provides as follows:

"A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice."

The record in the instant case shows that appellants were summarily found in contempt without a written charge or a hearing and were both fined. Mr. Gilbert in addition to the fine was sentenced to five days in jail. Since the fines and jail sentence were punitive in nature and not an attempt to coerce them to comply with any order of the court, the court's action constitutes a direct criminal contempt. State v. Kilbane (1980), 61 Ohio St.2d 201. The law is settled in Ohio that the power of the court to determine contempt is inherent, Zakany v. Zakany (1984), 9 Ohio St.3d 192, and within its sound discretion, State v. Christon (1990), 68 Ohio App.3d 471; Internat'l Merchandising Corp. v. Mearns (1989), 63 Ohio App.3d 32; Hughes v. Hughes (1991), 72 Ohio App.3d 286; however, the record must affirmatively show that the conduct constituted an imminent threat to the administration of justice to uphold a guilt by contempt. State v. Conliff (1978), 61 Ohio App.2d 185; State v. Saltzman (Oct. 9, 1980), Cuyahoga App. Nos. 41863 and 41864, unreported; see also In re Williams (Aug. 23, 1990), Cuyahoga App. No. 56908, unreported. If the contempt charge is premised on a party'S failure to obey an order of the court, then the order must be clear and definite, unambiguous and not subject to dual interpretations, and the contemnor must have knowledge of the order, Ahmed v. Reiss S.S. Co. (1984), 580 F.Supp. 737, affirmed In re Jacques (1984), 761 F.2d 302, cert. denied Jacques v. Aldrich (1984), 475 U.S. 1044, 106 S.Ct. 1259, 89 L.Ed.2d 570. See also Longshoreman's Assoc. v. Maine Trade Assoc. (1967), 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236.

Where the meaning of a court's order is plain in its face, a party's misunderstanding of that order and its mandate does not make the order ambiguous nor a defense to a contempt proceeding. See Longshoreman's Assoc., supra. In the instant case, the record reveals the following colloquy between the trial court and counsels. The first day of trial:

"CROSS-EXAMINATION OF JAMES JOHNSON

"BY MR. MALONEY:

"Q. Good afternoon, Reverend.

"A. Good afternoon.

"Q. I am Michael Maloney. I am an assistant county prosecutor. I have a couple of questions far you, sir.

"A. Fine.

"Q. The barber shop that you go to that the defendant runs, that is the Superfly Barber Shop; right?

"A. That's correct.

"Q. On Euclid?

"A. Right.

"Q. You have known the defendant for about how long, Reverend?

"A. Approxiinately 15 years.

"Q. 15 or even longer; right?

"A. Possibly so.

"Q. Correct me if I am wrong, you are here today to tell these folks that this man, you know him to be a leader of a group called Black On Black Crime, number one; is that correct?

"A. Correct.

"Q. Furthermore, you have described him as a man that you have seen in different situations taking responsibility in the community and helping those people who are victims of violent crimes, for example?

"A. That's correct.

"Q. And furthermore, you described him as a man of high moral character; isn't that correct? Is that so? And you have known him for 15 or more years; is that correct?

"A. Yes.

"Q. You feel you know this man pretty well, Reverend?

"A. Yes.

"Q. I mean, 15 years is a long time.

"A. That's a long time.

"Q. In fact, people talk to their barbers, women talk to their hairdressers, guys talk to their barbers. Is that a fair statement?

"A. That's correct.

"Q. You tell them things, you chat.

"A. Right.

"Q. Then you know that in 1977 --

"MR. GILBERT: Objection. Can we --

"Q. -- he was convicted of trafficking --

"MR. GILBERT: Objection.

"THE COURT: Mr. Gilbert.

"MALONEY: Your Honor, may the record reflect that I have been assaulted by defense counsel?

"THE COURT: Ladies and gentlemen, would you rise and file out, please.

"MR. GILBERT: I am sorry. I can't believe I did that.

"(The following discussion was had out of the hearing of the jury.)

"MALONEY: Your Honor, we are in a courtroom.

"THE COURT: Mr. Maloney, I will take the initiative here, sir. I would like to see counsel in chambers.

"(Recess taken.)

"(The following discussion was had in chambers between the Court and counsel.)

"THE COURT: I just want to put on the record what's happening here. The Court has simply ruled here that the prosecutor may ask the character witness, Reverend Johnson whether or not he is aware of any arrests or convictions of the defendant.

"Depending upon the man's answer, if the answer is yes, I mean, he may inquire as to what he is aware of.

"If the man says no, then the prosecutor may inquire, again, as to whether or not the witness is aware of any specific arrests or convictions.

"If the man says no, then the prosecutor is stuck with the answer.

"Now, the prosecutor is entitled to bring in evidence through some other means without volunteering that himself, without the prosecutor testifying as to an arrest or convictions.

"MR. GILBERT: What was that last thing again?

"THE COURT: The prosecutor may get the evidence into the record impeaching -

"MR. GILBERT: From what means?

"THE COURT: Not through the means of the prosecutor testifying. There is other ways of doing it.

"I am going to instruct the jury to do the very best to disregard what occurred out there and concentrate on what the testimony has been, the evidence in the case.

"I encourage you gentlemen, I have been most liberal, don't at any time presume to be so sure of your position that you feel you can

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