People v. Simac

• Decision Date: 03 November 1992
• Docket Number: No. 2-90-1420,2-90-1420
• Citation: 236 Ill.App.3d 1096,177 Ill.Dec. 316,603 N.E.2d 97
• Parties: , 177 Ill.Dec. 316 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher SIMAC, Defendant (David Sotomayor, Contemnor-Appellant).
• Court: United States Appellate Court of Illinois

Page 97

603 N.E.2d 97

236 Ill.App.3d 1096, 177 Ill.Dec. 316

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher SIMAC, Defendant (David Sotomayor, Contemnor-Appellant).

No. 2-90-1420.

Appellate Court of Illinois Second District.

Nov. 3, 1992.

Rehearing Denied Dec. 4, 1992.

David Sotomayor, Sotomayor & Bird, Wheaton, for David Sotomayor.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Martin P. Moltz, State's Attys. Appellate Prosecutor, Elgin, for Donald J. Hennessy and the People.

Justice DOYLE delivered the opinion of the court:

Defense attorney David Sotomayor (contemnor) appeals the judgment of direct criminal contempt entered against him at the conclusion of the trial of defendant, Christopher Simac. On appeal, the contemnor argues that (1) the evidence is insufficient to support a finding of contempt; and (2) the grounds stated in the order of contempt are conclusory and unsupported by the record.

Defendant was charged with driving while his license was revoked and with failing to yield while making a left turn. At his bench trial on December 11, 1990, the court directed all witnesses who were going to testify to come forward and be sworn. The contemnor indicated that defendant would not be testifying. Initially, the State's only witness was Officer Ronald H. Lamorte of the City of Wood Dale, Illinois. A person later identified as David P. Armanentos, a clerical employee of defense counsel's law firm, sat near the contemnor at counsel table.

Officer Lamorte testified regarding an automobile accident he investigated on March 20, 1990. He sought out the drivers of the vehicles. He identified Armanentos, who was sitting next to the contemnor and dressed in a white shirt with blue stripes, as being the defendant. The court stated, "Identity of the defendant is noted for the record." Lamorte stated that, at the scene of the accident, the person he had identified as defendant told Lamorte he was the driver of the Pontiac involved in the accident. The driver of the Pontiac admitted that he had attempted to make a left-hand turn and proceed westbound on Irving Park Road and he was struck by a Chevrolet Nova. Lamorte later arrested defendant for driving on a revoked license and for failure to yield while making a left-hand turn. Lamorte testified regarding the certified driving abstract of defendant which was admitted into evidence.

On cross-examination, Lamorte admitted that he had never seen defendant driving and did not witness the accident. The State then rested.

The contemnor's motion to exclude witnesses was granted, and the officer was asked to wait outside the courtroom. The contemnor then asked to call a witness. When the court asked if this witness had been sworn, the clerk answered, "No." The witness, who had been sitting next to the contemnor, was David Armanentos. After being sworn, Armanentos stated that he was not the driver of the vehicle in question on March 20, 1990.

Under cross-examination by the prosecutor, Armanentos said that he did not know defendant. He said he worked as a clerical employee in the contemnor's law firm. Contemnor had brought him in and instructed him to sit at counsel table to see whether he would be identified as the defendant.

Armanentos had been told that defendant looked a little like him. Armanentos did not know anything about the accident. He identified a white male (the defendant) sitting in the back row of the courtroom as being a man he had seen the contemnor speaking to before the trial began. The white male had dark blond hair and was wearing glasses and a white shirt with red stripes. Armanentos was also wearing glasses. His hair was parted down the middle, but the other individual's hair was combed straight back. Armanentos admitted that he resembled the other individual, who was tall, white, and thin. The court asked Armanentos where he was when the witnesses were sworn. He replied that he was seated at the table.

The contemnor was permitted to state for the record that Armanentos never approached the bench, that he was seated where he was told and was not sworn when the witnesses were called forward. The contemnor argued that there was no fraud perpetrated on the court and the defendant was in open court as required. The State's witness, Officer Lamorte, identified the person next to the contemnor as the defendant and as the one to whom he spoke on the date of the accident. Because of the misidentification, the contemnor asked for a directed finding in favor of defendant.

When the court asked if the State had any other witnesses, the State requested that defendant, Christopher Simac, be called to the stand. The contemnor objected that the State had no right to call defendant in view of his fifth amendment privilege. Over objection, defendant was called to the stand and was sworn. After stating his name for the record, defendant invoked his right not to answer the State's questions and was excused. The State then requested that the contemnor be called to testify, and the court denied this request. The State asked that defendant take "his position" next to his attorney and that it be permitted to recall the police officer. The court stated: "[Defendant] can sit any place he wants to in the courtroom. He is here." The State was permitted to recall the officer over the contemnor's objection.

When Officer Lamorte retook the stand, he was asked to "take a good look around the courtroom right now" to identify defendant. The officer again identified Armanentos as the one to whom he had spoken at the scene. The court directed a finding of not guilty because of the misidentification.

The court also found that defense counsel should be held in direct criminal contempt of court for placing Armanentos in such a manner as to mislead the State's Attorney and the officer. The court added this was "purposely done" to "mislead the Court." The contemnor urged that he did not misrepresent anything to the court and that Armanentos did not approach the bench. The contemnor pointed out that defendant was in open court and the officer had two opportunities to identify him among four individuals present in the courtroom. The order entered on December 11, 1990, stated that the contemnor was held in direct contempt of court "for having a person bearing the likeness" of the defendant "sit at the counsel table with him in the location usually occupied by the [defendant]." A fine of $500 was imposed, but the payment was stayed until the following day, the cause having been continued.

The following day, the trial court made supplemental findings in a written order. The court found that it was the totality of the conduct of counsel in court in connection with this incident that was the basis for the court's finding of direct criminal contempt for misrepresentation by inference. The following paraphrases the court's findings:

(1) the person (Armanentos) with the likeness of the defendant, a young white male, was the only person with defense counsel at the counsel table when defense counsel came to the bench and said, "Here is a jury waiver";

(2) that person was dressed in jeans and a shirt with no tie; this is not the courtroom attire of an attorney or cocounsel, yet that person sat in the customary location of a defendant throughout the State's case;

(3) that person was asked by the clerk to be sworn with other witnesses at the start of the trial, and defense counsel stated that that person was not going to testify; the obvious inference of this comment to the court and the clerk was that that person was the defendant because witnesses were excluded except for defendant;

(4) that person was identified as the defendant by the State's witness (the police officer), and all of the foregoing resulted in the court's comment that the record would show that defendant had been identified for the record; there was no response by defense counsel to the court's comment as to its impression and finding based on all that had occurred, and the court was misled as to the identity of defendant;

(5) that person's only apparent purpose in the courtroom in defendant's customary location with defense counsel was to raise an inference with the court that he was the defendant and this was done with full knowledge on the part of defense counsel; and

(6) while there was no express verbal misrepresentation, the totality of the conduct by defense counsel amounted to a misrepresentation by inference, and this was the basis of the finding of criminal contempt.

The contemnor's motion to reconsider, which was filed on the same date, averred that, prior to the commencement of the trial, defendant was seated in the courtroom. When the trial began, a clerical employee from the contemnor's law firm sat next to him. At no time did the contemnor make any misrepresentation to the court, the State's Attorney or anyone else that the employee was the defendant, and the employee did not approach the bench, nor did he take any affirmative action to falsely represent his identity. At the time of the trial, seated within the courtroom were two police officers in the jury box; one black individual in the third row bench; one Hispanic individual seated in the second row bench; and two white individuals in the third row bench, one of whom was the defendant. The contemnor argued that his conduct did not embarrass, hinder or obstruct the court in its administration of justice and sought to vacate the court's order. The motion to reconsider was denied, and this timely appeal followed.

On appeal, the contemnor argues that, absent an affirmative showing of an attempt to deceive the court, it was not contemptuous for counsel to place an individual other than defendant next to him for the purpose of challenging the identification by the State's witness. He further argues that the court's findings were not sufficiently specific to support its...