Milkovich, In re

• Decision Date: 08 September 1986
• Docket Number: No. 85-KK-2028,85-KK-2028
• Citation: 493 So.2d 1186
• Parties: In re John MILKOVICH.
• Court: Louisiana Supreme Court

Page 1186

493 So.2d 1186

In re John MILKOVICH.

No. 85-KK-2028.

Supreme Court of Louisiana.

Sept. 8, 1986.

Donald Minor, Troy E. Bain, Shreveport, for applicant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Carmouche, Dist. Atty., Powell Layton, Jr., James Cowles, Jr., Asst. Dist. Attys., for respondent.

LEMMON ^*, Justice.

We granted certiorari to review relator's convictions on four citations of direct contempt of court which occurred during his representation of a criminal defendant in a five-day trial that resulted in the client's acquittal on a charge of attempted second degree murder. Relator was sentenced during the trial to a fine of $100 on the first count, and sentencing on the other three counts was deferred until after the trial. The trial judge ultimately sentenced relator to consecutive twenty-four-hour terms of imprisonment on the remaining three counts. We now affirm the conviction and sentence on the fourth citation, but reverse on the first three citations, concluding that the evidence was insufficient to support the convictions.

Relator was convicted of direct contempt of court which is defined in part pertinent to this case by La.C.Cr.P. Art. 20 and 21 as follows:

"A contempt of court is an act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.

"Contempts of court are of two kinds, direct and constructive." Article 20.

"A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge; or, a contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record; or, a contumacious failure to comply with an order sequestering a witness.

"A direct contempt includes, but is not limited to, any of the following acts:

* * *

"(5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority." Article 21(5).

The power to punish contemptuous conduct is essential to the fair and efficient administration of justice and to the preservation of the dignity and authority of the courts. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); In re Masinter, 355 So.2d 1288 (La.1978). This power, however, is subject to abuse and should never be exercised to stifle zealous advocacy. Proper use of the contempt power, particularly when used to punish direct contempt, requires the exercise of sound judicial discretion.

Relator's primary contention is that the record does not establish that he intended to obstruct, disrupt or interfere with the administration of justice and that his conduct merely amounted to a fervent effort to provide effective assistance to his client.

This is a criminal contempt proceeding, since the object was to punish relator for contemptuous behavior in the presence of the court. ¹ State v. Austin 374 So.2d 1252 (La.1979); W. LeFave & A. Scott, Criminal Law § 7 (1972); R. Perkins, Criminal Law 532 (1969). Criminal contempt is a crime in every fundamental respect, and the defendant in a criminal contempt proceeding is entitled to the basic constitutional protections such as the presumption of innocence, the right to proof of guilt beyond a reasonable doubt, and the right not to be compelled to testify against himself. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal proceeding against conviction of a crime "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". In re Winship, 397 U.S. 358 (1970). On appellate review of a criminal conviction, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the crime of which the defendant was convicted was proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984). Thus, an appellate court reviewing this conviction of criminal contempt under Article 21(5) must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant's acts constituted contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority.

At the outset relator argues that a record of the transcript of the entire proceeding is necessary for a proper review of his convictions. ² The absence of a complete record is actually favorable to relator as to the first three convictions, since these convictions are being reversed on the basis of insufficient evidence contained in this record. As to the fourth conviction which involves a citation for contempt during closing argument, the record of the entire closing arguments by all counsel is complete (and is supplemented by an audiotape of the arguments). None of the "instances of unfair restrictions on petitioner", which relator asserts in brief would be revealed by a complete transcript of the entire trial, have any bearing on the fourth citation. ³

We separately discuss the facts of each citation and make appropriate dispositions.

First Contempt Citation

Relator was first cited for contempt on account of a remark during his opening statement that "[p]rior convictions cannot be used in determining guilt or innocence". In order to consider this occurrence in proper perspective, it is necessary to review certain earlier events.

During the voir dire examination of a prospective juror, relator objected to the prosecutor's question about the juror's understanding that evidence of prior convictions, while not appropriate to be considered in the determination of guilt of the charged offense, may be considered in the determination of the accused's credibility. The trial judge noted the difficulty of framing questions which completely stated the applicable law, and the attorneys agreed to limit their questioning on the subject.

At a later point in the voir dire, the court held a bench conference on an objection to relator's prefacing his questioning with lengthy statements of his philosophy and his opinion about this particular case. When relator claimed that this was "his style", the judge instructed relator that argument is not appropriate during voir dire, regardless of style. Relator then stated:

"I am using voir dire techniques which are well-established by trial lawyers such as Jerry Spence who spends a great deal of time on voir dire using and touching upon the very same things which I am addressing. They may not do it in Shreveport, down in the far south where things are conservative, but some places in America they do it this way.... I fully intend to comply with whatever orders you make, Judge, but I don't think he is doing voir dire different from the way we do it or from the way conservative lawyers in Shreveport who have never been out of the south do it. I don't think that is a valid objection. This is perhaps an unconventional voir dire, I don't believe that I am violating any ethical rules or any legal rulings. But, I will comply with whatever you tell me to do...."

Thereupon the court again instructed relator not to argue the case during voir dire.

After the jury was selected, the judge in conference instructed the attorneys not to make arguments or to give statements of philosophy during the opening statement, but merely to outline the evidence to be offered and to explain the nature of the defense.

Relator began his opening statement by outlining the defense version of the facts. When he stated his opinion that there was a reasonable doubt as to his client's guilt, the prosecutor objected, and the judge maintained the objection. Three more arguments were objected to with the same result. Relator then stated that constitutional principles insure that innocent persons not be condemned and that innocence is presumed, even if the accused has a prior conviction. He followed with the statement of the prohibition against using prior convictions to determine guilt. When the prosecutor objected to the remark as argument, the judge called a conference outside the jury's presence. After a discussion with relator, the judge stated that "defense counsel has made a deliberate, knowing, and, intentional violation of the order specifically entered in by this Court with respect to opening statements" and found relator in contempt of court for repeatedly arguing in violation of the court's order not to make arguments during the opening statement.

When an attorney persistently violates the rules laid down by the trial judge for opening statements, the usual sanction is to restrict or terminate the opening statement. Of course, if the attorney's violation of such rules is done with the intention of disrupting the proceedings or impairing the dignity of the court, then a contempt citation may be appropriate. That intention, however, must be established by the record.

In a per curiam filed in the court of appeal, the trial judge described relator's demeanor at the conference, in which he walked away from the conference or turned his back to the court and exhibited an "air of his obstinance to the Court's rulings". However, the judge never made a record of relator's demeanor or hostility, either at the time of occurrence or in a subsequent rule to show cause, and the present record does not contain any indication of...