Leohner v. Superior Court

• Decision Date: 07 September 2022
• Docket Number: A164631
• Parties: RICHARD M. LEOHNER, JR., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; MAGGIE FLEMING, as District Attorney, etc., Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

RICHARD M. LEOHNER, JR., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent;

MAGGIE FLEMING, as District Attorney, etc., Real Party in Interest.

A164631

California Court of Appeals, First District, First Division

September 7, 2022

NOT TO BE PUBLISHED

Humboldt County Super. Ct. No. CR2102316

MARGULIES, J.

In this writ proceeding, petitioner Richard M. Leohner, Jr., an attorney, challenges an order of contempt issued by the superior court during a criminal trial. After careful review of the record, we will grant a peremptory writ of prohibition and order count 2 of the contempt order annulled.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Court Proceedings

Leohner was trial counsel for defendant Delano Blayze Malang in a criminal proceeding pending in Humboldt County Superior Court. On February 14, 2022, Malang's jury trial began with Leohner representing him.

On February 17, 2022, Leohner was cross-examining Heidi Groszmann, a police officer and prosecution witness, when the court held an Evidence Code^[1] section 402 hearing (section 402 hearing) to consider whether certain audio portions of body-worn camera videos from three different police officers should be redacted. The court noted the section 402 hearing was as to the "audio of the video.... In other words, it's not so much the video itself, it's what's being said on the video that we are talking about."

The prosecution sought to exclude audio portions of the videos that included statements made by bystanders to the officers after Malang was arrested. The prosecutor argued the statements were prejudicial and were irrelevant to whether the officers had probable cause to arrest Malang. Defense Counsel Leohner, on the other hand, sought "to introduce body-worn cameras [sic] full with audio" and argued the jury should be able to hear all of the statements on the videos because it "all goes towards the lawful performance of [the officers'] duties."^[2] The trial court agreed with the prosecution's argument that the challenged statements were irrelevant and should be excluded. After hearing argument and watching portions of the videos, the trial court ruled, "[T]he videos we'll play are the videos that the People have redacted. And they'll be marked and come into evidence."

After the jury was brought back in, Leohner continued his cross-examination of Officer Groszmann. While questioning her about the video from her body-worn camera, Leohner asked: "May I have Defense Exhibit A?"^[3] The court called counsel to the bench. After an unreported sidebar discussion, Leohner said on the record: "I need Defense Exhibit A back. Let's do People's Exhibit-what's the redacted version?" The clerk and prosecutor noted it had not been marked yet, and the prosecutor requested permission to approach the bench. Another discussion was held off the record.

The court then excused the jury and held a discussion on the record with the attorneys about use of the Groszmann video during Leohner's crossexamination. The court ruled the video was outside the scope of the direct because the prosecution had not entered it as an exhibit during direct examination. The court determined the prosecutor could enter the video on redirect and Leohner could question Groszmann about it during recross examination.

After a recess, followed by a brief update regarding a scheduling matter, the prosecutor told the court that "in the presence of the jury Mr. Leohner violated the Court's Order the [section] 402 motions [sic] where the Court had ordered only portions of Sergeant Groszmann's body-worn camera [video] to be introduced into evidence and in direct violation of Court Order he attempted to put in his unredacted version. When the Court admonished him not to[,] he then let the jury know that the People's evidence has been redacted." The court then asked the prosecution, "Are you asking for me to do anything in front of the jury with that?" The prosecutor responded, "Your Honor, any corrective measures that you think is appropriate [sic], I would submit on. If you think that none are appropriate, I would submit on that." The court invited Leohner to comment and he responded, "I submit to the Court's unfettered discretion."

The court then said: "Okay. So . . ., the purpose of a [section] 402 [hearing] is to do these things outside of the presence of the jury. So to try to get in something that it was clear you weren't supposed to get in and then tell the Court at sidebar that you wanted to put it in and then have me shut you down is inappropriate and it's unethical. So I'll warn you not to do that again in this courtroom. Do you understand that?" Leohner said, "Understood." The court continued, "Okay. And then as to mentioning, we are not going to mention it's redacted. I think me doing something with the jury is just going to bring more attention to it. It was brief. They may have heard the word redact, but I think it may do more harm than good to make them think about it even more. But we can think about that. I can do something at closing arguments. The sound is going to go away in the video, so that might be a little weird for them, so we might have to address it there. So let's see how that plays out."

On February 22, on its own motion, the trial court adjudicated a direct contempt proceeding against Leohner for his noncompliance with court orders. Outside the jury's presence, the court told Leohner: "So last week I warned you I think three times. At one point you indicated that you were ready for sanctions. I think you said something that [sic], 'I'm prepared for that.' You also said to the Court that you intentionally put evidence- attempted to put evidence in front of this jury so that I would admonish you in front of the jury. The exact opposite of what the [section] 402 hearing process is about." The court summarized other alleged instances of direct contempt, then stated: "I warned you that continued behavior attempting to get evidence that has already been ruled on as irrelevant . . ., the purpose of a [section] 402 hearing is so we can hear evidence before the jury hears it to determine legal determinations. Those determinations were made and you disagree. And instead of listening to a Court Order you just continued to try to get it in any way you could." The court invited Leohner to respond.

Leohner answered he disagreed with the court's characterization of his conduct but had nothing to say to the court "at this time." He asked for legal counsel to be present before addressing the court. The court explained to Leohner that he had violated its ruling. The court noted Leohner "had the weekend" to consider his behavior, "but today the first opportunity you get you have to talk about the omissions and you make the same objections that you lost in the [section] 402 [hearing]....I mean, you basically came up here and told me that you knowingly violated the [section] 402 [ruling] so I would admonish you on the record in front of the jury." The court asked Leohner if he had "anything to say about that."

When Leohner asserted he would "[m]ake the record for appeal as clear as I can," the court said, "You will make the record as clear? I don't understand. That was at sidebar. I had to make the record after. You didn't make any record on that. You just simply told me that you were purposefully violating a [section] 402 Order." Leohner responded, "I don't recall it that way."

Leohner again requested counsel, but the court informed him there is no right to counsel in cases of direct contempt. The court said it would adjudicate the matter immediately, and noted Leohner had offered neither an apology nor mitigating circumstances. The court then found Leohner guilty of six different incidents of direct contempt, and promised to draft a written order as soon as possible.

On February 24, 2022, the court filed its written findings and order of direct contempt.

The court's order stated that on February 17, 2022, the court conducted a section 402 hearing at which it "ruled that the redacted video of the District Attorney's Office would be allowed, . . . and that the un-redacted video that the defense proffered was rejected; and the parties were told to use only the redacted video." The order went on to explain, "During the trial, when Mr. Leohner was cross-examining [Groszmann], Mr. Leohner proffered the unredacted video when he asked the bailiff to play the video. Mr. Leohner, in front of the jury, also referred to the 'redacted' video. The Court stopped the bailiff and had counsel approach to remind Mr. Leohner about the Ruling of the Court. Mr. Leohner indicated that he knowingly and purposefully proffered the irrelevant video so that the Court would admonish him in front of the jury. The Court opined to Mr. Leohner that the attempt to knowingly publish inadmissible evidence to the jury is inappropriate, unethical and contemptuous, and warned him not to refer to the redacted video again. Mr. Leohner stated he understood." The finding of guilt as to count 2 stated: "Mr. Leohner is guilty of direct contempt (Count 2) for intentionally attempting to publish the video so that the Court would admonish him in front of the jury, which Mr. Leohner knowingly admitted doing for the sole purpose of being admonished on the record." The court imposed a sentence of one day in jail per count, which it stayed, and ordered to Leohner to pay fines for each of the six counts. As to count 2, he was ordered to pay $100.

B. Petition for Writ of Prohibition

Leohner filed a petition for writ of prohibition challenging the direct contempt order. In his points and authorities supporting the petition, Leohner argued the contempt order was invalid because it was unsupported by evidence in the record....