Neff, In re

• Decision Date: 19 November 1969
• Citation: 254 N.E.2d 25,20 Ohio App.2d 213
• Parties: , 52 A.L.R.3d 970, 49 O.O.2d 312 In re NEFF.
• Court: Ohio Court of Appeals

Page 213

20 Ohio App.2d 213

254 N.E.2d 25, 52 A.L.R.3d 970, 49 O.O.2d 312

In re NEFF.

Court of Appeals of Ohio, Fifth District, Stark County.

Nov. 19, 1969.

Syllabus by the Court

1. Criminal contempt proceedings are those designed to vindicate the authority of the court and prevent obstruction of the administration of justice, which, being punitive in nature, may result in the accused being sentenced to pay a fine or to imprisonment or both.

2. If the act of a person charged with being in contempt is committed in open court in view and/or hearing of the judge or in any place set apart for use as a constituent part of the court, even though the conduct was not personally seen or heard by the judge, or such act constitutes a fraud upon the court and is such as to influence or persuade the court to make orders in its own courtroom concerning which it probably would have done otherwise had the act not occurred or is a wrongful act calculated to impede, embarrass or obstruct the court in the administration of justice, it constitutes a direct contempt of court.

3. A court has inherent power to act summarily to punish for acts of direct contempt; however, direct contempts which may be punished by summary proceedings must be segregated between those in which the judge may act upon his personal knowledge of the facts and those which require taking the testimony of others to establish the necessary elements of proof.

4. Where the circumstances are such that a judge has personal knowledge of the acts of direct contempt already committed, the person charged with contempt by commission of acts has waived his rights which he might otherwise have had prior to or upon hearing and presentation of evidence. No hearing is necessary, since he has already by his own voluntary acts placed the evidence directly before the court under circumstances which preclude the court from having any opportunity to advise him of any constitutional rights which might otherwise have been available to him. In such cases, a person may summarily be found guilty of contempt of court, unless the punishment imposed is of such severity as to classify the offense as a serious rather than a petty offense.

5. In Ohio, a misdemeanor or a minor offense is a crime for which a person may not be, or in case of contempt proceedings is not, imprisoned in the penitentiary or for more than one year.

6. Contempt proceedings in state courts cannot be controlled by Act of Congress, and there is no pronouncement by the United States Supreme Court that contempt proceedings, in state courts, resulting in sentence of imprisonment other than to the penitentiary and not for more than one year cannot be considered petty or minor offenses if determined to be such by state legislative enactment and decision of the Supreme Court of the applicable state.

7. In direct criminal contempt proceedings, which do not result in imprisonment in the penitentiary or for more than one year, Ohio state courts may proceed absent a jury trial or waiver thereof, without violating any constitutional right of the accused to a jury trial, even though the circumstances are not within the personal knowledge of the court and require the taking of evidence.

8. The inherent power of the court to punish for contempt may not be limited by legislative authority. Power which the Legislature does not give it cannot take away.

9. Courts exist within the framework of the Constitution, and, while the court's inherent power to punish for direct contempt is not dependent upon either statutory authorization or express constitutional grant, such power is not entirely free from constitutional limitations of procedural due process.

10. An accused's constitutional right to reasonable notice of the charge against him is applicable to misdemeanors as well as felonies and to criminal proceedings both serious and petty, including direct contempt proceedings which require that the charges be established by evidence. In summary proceedings for direct contempt, which require the taking of testimony, such notice may be informally given, provided the court advises the accused of the object of the hearing in accord with due process of law. It is not sufficient that he learns from the terms of the resulting judgment-such knowledge comes too late.

11. The provisions of the Fifth Amendment to the Constitution of the United States and of Section 10, Article I of the Constitution of Ohio, which preclude any person from being compelled, in any criminal case, to be a witness against himself, are applicable to both felonies and misdemeanors and to criminal contempt proceedings.

12. In direct criminal contempt proceedings in which the court may proceed summarily but which require the taking of testimony, the defendant's constitutional right of due process affords him the right to cross-examine witnesses who testify against him and the right to present witnesses in his behalf. This right extends to 'petty' as well as 'serious' offenses.

13. Under the provision of Section 10, Article I, of the Constitution of Ohio, a defendant has a right to be present with counsel of his choosing in misdemeanor hearings, including direct contempt proceedings which require the taking of evidence and result in deprivation of liberty. Such right in direct contempt proceedings may be made dependent upon a request, but failure to make a request does not amount to a waiver except under such circumstances that failure to make the request would constitute an intentional relinquishment or abandonment of a known right or privilege.

14. A court is without jurisdiction to convict a defendant of contempt on the ground that he testified falsely or his reluctance or evasiveness in giving testimony obtained in violation of his constitutional right that he not be compelled to be a witness against himself.

David D. Dowd, jr., Pros. Atty., and Ira G. Turpin, Canton, for appellee.

John W. Ergazos and Ralph W. Ross, Canton, for appellant, Roger Neff.

RUTHERFORD, Judge.

During the trial of the State of Ohio against George DiGiantonio, on April 15, 1968, on a charge of breaking an entering and grand larceny, the trial judge received information from the prosecuting attorney that one George Jackson, a witness in the case, had been offered money and threatened by a person in the hallway outside the courtroom.

At that point the trial judge excused the jury and proceeded as follows, as shown by the bill of exceptions:

'The Court: Sir, will you come up here and take the stand here.

'Roger Neff, called to testify, after being first duly sworn by the court, testified as follows: (Upon examination by Mr. Mestel, assistant prosecuting attorney)'

Direct examination by Mr. Mestel

'Q. What is your name? A. Roger Neff.

'Mr. Ross: (Attorney for the defendant, George DiGiantonio in the case of State of Ohio v. George DiGiantonio.) Pardon me, what is this all about?

'The Court: The prosecuting attorney asked to inquire of this particular man here with respect to an incident that was reported to the court.

'Mr. Ross: Who's the incident with?

'The Court: In connection with the trial of this case. Let the record show that this takes place in the absence of the jury.

'You may proceed.

'Q. What is you name? A. Roger Neff.'

Mr. Mestel, the assistant prosecuting attorney, then inquired of Mr. Neff as to his, Mr. Neff's, conduct outside the courtroom in the hallway, with the court also asking one or two questions, each of which questions was answered by Mr. Neff. When Mr. Mestel stated that he had no further questions but wished to call another witness, the following occurred:

'Mr. Ross: I would like the record to show that this comes as a complete surprise to me. Was that before this fellow testified or after Jackson testified? Was this before or after, Mr. Mestel?

'Mr. Mestel: Before.

'The Court: Let the record show that the prosecuting attorney asked for an opportunity to put on evidence now with respect to the conduct of this particular witness and the court under the circumstances feels the court ought to hear this matter immediately.

'* * *

'Mr. Mestel: I would like to excuse the witness with the understanding that he might be recalled later.

'* * *

'The Court: Roger Neff is ordered to be temporarily in the custody of the Stark County Sheriff for a few minutes that it takes to hear this matter. Does anyone know where there is a sheriff's deputy in the courthouse?'

'* * *

'Mr. Ross: If the court please, I would like the record to show that the Neff boy was put on the stand, examined without advising him as to any rights and let the record show now they are asking the court to order this witness, ordered to testify without advice and the right to a lawyer and the defendant objects to this proceeding in this trial and for the reason moves the Court to declare a mistrial.' (Emphasis added.)

The prosecutor and the court then proceeded to call and inquire of four other witnesses, including George Jackson, whom the prosecutor had advised the court was the informant.

At the conclusion of the testimony of the last witness, the court stated:

'The Court: Is there any officer of the court who cares to inquire of this witness, keeping the inquiry relevant to whether or not Roger Neff did in the presence of the court conduct himself in contempt of the court or so near to the court that tended to obstruct justice. Does anyone else care to inquire? All right, sir, you may stand down. Anything further, Mr. Ross?

'Mr. Ross: I have nothing further.

'The Court: Any other officers of the court have anything further?'

This was the first statement by the court to indicate to Roger Neff that he was being charged with contempt in the presence of the court or so near the court that he tended to obstruct justice. It was also the closest opportunity afforded Roger Neff to cross-examine the witnesses testifying against him; and at no time was he offered any...