People ex rel. Woodward v. Oliver

• Citation: 322 N.E.2d 240,25 Ill.App.3d 66
• Decision Date: 20 January 1975
• Docket Number: No. 73--88,73--88
• Parties: PEOPLE of the State of Illinois ex rel. Honorable Alfred E. WOODWARD, Plaintiff-Appellee, v. Frank W. OLIVER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 240

322 N.E.2d 240

25 Ill.App.3d 66

PEOPLE of the State of Illinois ex rel. Honorable Alfred E.

WOODWARD, Plaintiff-Appellee, v. Frank W. OLIVER, Defendant-Appellant.

No. 73--88.

Appellate Court of Illinois, Second District, First Division.

Jan. 20, 1975.

Melvin B. Lewis, Chicago, for defendant-appellant.

John J. Bowman, State's Atty., Wheaton, James W. Jerz, Ill. State's Atty. Assoc., Elgin, for plaintiff-appellee.

HALLETT, Justice:

This is an appeal from a judgment finding defense attorney Frank Oliver guilty of contempt during a criminal trial and fining him $350. Briefly stated, the specifications of contempt are: (1) that, in the presence of the jury, he refused to enter chambers when requested to do so by the court; and (2) that, during closing argument, he repeatedly referred to the trial judge's rulings after the court had warned him that such comments would be regarded as contemptuous. The issues presented for review are: (1) whether the right of the defendant in the case-in-chief to a public trial justifies his counsel's refusal to enter into an In camera discussion; (2) whether the contempt order is void for lack of specificity; (3) whether the statements made by Oliver during the course of his closing argument violated the court's admonition to refrain from comment on the court's rulings; and (4), assuming that Oliver did violate the court's admonition in respect to his closing argument, whether such comments constitute contempt if there was no material disruption of the court proceedings.

After reviewing the record, we affirm the trial court.

The conduct, upon which the citation for contempt is based, occurred during the criminal trial of one Michael Seymour for unlawful possession and delivery of cannabis sativa, in which Oliver represented the defendant. On December 13, 1972, after the State had rested its case, Oliver delivered his opening statement, which had been deferred until that time. In the course of this statement, Oliver told the jury that his client would testify to his intention or state of mind at the time of the alleged transaction and would testify that he was then cognizant of the agent's identity and was merely aiding them in the apprehension of the primary marijuana dealer. The State objected to the admissibility of the defendant's testimony concerning his intention or state of mind. The court ruled that the defendant could not directly testify as to his intention and that the intention of the defendant was a conclusion to be drawn by the jury from the facts. (Transcript 7) Thus, the court held that statements concerning the defendant's intent made during the opening statement were improper since such direct testimony would not be admissible. At that point, Mr. Oliver stated that since the defendant was precluded from testifying to his intent in the transaction, the defense elected to rest its case. An In camera discussion, which was not transcribed, was held, and the jury was excused for the day.

It appears from the record that the next acts sequentially were the closing arguments of State and defense. The main thrust of Oliver's argument to the jury was that intent was a crucial element in this offense, and he urged the jury to infer from the facts that the defendant did not possess the requisite criminal intent necessary to a finding of guilty, but rather that the defendant, cognizant of the agents' identity, had merely attempted to aid them in the arrest of the dealer in marijuana. It should be noted that the trial court had Not ruled that intent was not an element of the crime. Rather, the trial court's ruling only precluded direct testimony of the defendant as to his intent, or state of mind, and indeed, permitted the jury to infer the defendant's intent from any facts in evidence. Thus, in arguing defendant's lack of criminal intent from the facts in evidence, Oliver was merely urging the jury to draw an inference of innocent intent. This argument was well within the bounds of advocacy during closing argumentation. After Mr. Oliver had argued what he believed was the reasonable inference of intent from the facts in evidence, the following occurred during his closing argument to the jury:

MR. OLIVER: Now, in that connection, you may recall that a couple of days ago I started to make an opening statement preparatory to putting on proof of the defendant's case, and when I got to the point of telling you that Mike Seymour would get on the stand and tell you how he interpreted what was going on and what his intent was,--

THE COURT: Counsel, I think we had better go into chambers.

MR. OLIVER: I don't want to go into chambers, Judge.

THE COURT: Let's go into chambers right now.

MR. OLIVER: No, I am not going to go into chambers. This is a public trial and I am going to have a public trial.

THE COURT: Bring the attorney in. Mr. Bailiff.

MR. OLIVER: I will not go into chambers unless I am--are you going to do it by force? You will have to do it by force, sir. Make your arrest. I am not going to do it. I am not going to do it. I am not going to go into chambers, under no circumstances.

THE COURT: All right, the jury will go into the jury room right at this time.

(The jury retired to the jury room, after which the following proceedings were had in open court, outside the hearing and presence of the jury:)

THE COURT: Mr. Oliver, you are aware of the fact that the Court has made certain rulings in this case and you are now taking up with the jury rulings that the Court has made, which is none of their business. The instructions so state it, and I am warning you at this time, if you comment in respect to any rulings the Court has made in this matter which is not appropriate for the jury to hear, and they are to hear the evidence, in that event, you are going to be found in contempt by this Court. Now, you may proceed with your argument.

MR. OLIVER: I have stated, your Honor, what took place in the presence of the jury.

THE COURT: I am just warning you--

MR. OLIVER: And they observed me rest and I propose to remind them that they saw me rest.

THE COURT: I am just warning you at this time that you are not to comment to the jury in respect to any of the rulings that this Court made.

(Transcript 17, 18)

After this episode, Mr. Oliver continued to argue the defendant's lack of criminal intent. Without republication of the remainder of Mr. Oliver's closing argument, the following excerpts are pertinent to the second specification of contempt.

MR. OLIVER: Now, this is a fair evaluation of what took place, rather than this inference that they are trying to create that the arrangement all the time was with Mike Seymour.

And you see, that is why he objected when I wanted to go into the Lisle Bowl thing. Wanted to keep the evidence out. Didn't want you to hear it.

MR. KILANDER: Your Honor, I have got to object to comments of why objections are made.

THE COURT: Sustained. Counsel has a right to make objections and this is not proper argument before the jury, and I instruct you to cease that type of argument, Mr. Oliver.

(Transcript 23)

MR. OLIVER: As I say, we don't have any direct evidence of intent here, which might sound something like 'I understood they were policemen; I observed they were policemen; I wanted to help them. I couldn't talk to them easily, but I felt they understood. I couldn't talk to them because there were people around that they were trying to catch'.

And you know, it is funny, because these kinds of explanations are the kind that we sort of accept in everyday life.

(Transcript 34)

At this point, Mr. Oliver related to the jury two allegorical situations. One concerned a child who had taken a piece of forbidden candy. He concluded this story by stating:

In everyday life we let them tell us what their intentions are, and then we weigh those intentions or their account of their intentions against inferences that we may draw from facts. That is the way we operate in everyday life.

(Transcript 35)

The second allegory concerned a man with a gun who observed his worst enemy being pursued by a lion. The man with the gun fired it, killing the one who had been his worst enemy. The conclusion of this allegory was followed by the following statement:

Now, you see, in everyday life we would expect a fellow who is asked about that or charged with it to be able to stand up in front of 12 people or 50 people or a thousand persons or one person or his God and to say, 'I really didn't intend to hit the man. I don't care if he was my enemy. I intended to hit the lion'.

I wish I might have provided you with that direct evidence of intention, and believe me, when I suggested that I would do so, I did not intentionally suggest something that I thought to be improper, because in my mistaken way, for 20 years now, I thought, always thought, that that was the very best evidence of intention in a courtroom, what a man said was in his head.

(Transcript 36)

Later, Mr. Oliver stated to the jury:

I don't think in any event we would be chargeable with absence of evidence.

Number one, the law doesn't require us to put in evidence. Number two, the State objected to the evidence I did want to put in which might have--

THE COURT: Counsel, that is improper comment and you are to cease and desist. I have warned you before.

(Transcript 39)

Subsequently, the jury returned a verdict of guilty. After the conclusion of the trial, the court proceeded as follows:

THE COURT: Now, that completes this.

Mr. Oliver, I would like to cite you for contempt for your refusal to accompany the bailiff to chambers as I requested.

You made it necessary for me to excuse the jury and send them into the jury room in order that we could discuss something that the Court felt was necessary.

Further, in your final argument you repeatedly made reference to matters that the Court sustained objections to.

Now, defendants are entitled to every right that they have in the book.

But also if the State makes a...