People v. Ziporyn, 82-2770

• Decision Date: 09 February 1984
• Docket Number: No. 82-2770,82-2770
• Citation: 121 Ill.App.3d 1051,77 Ill.Dec. 329,460 N.E.2d 385
• Parties: , 77 Ill.Dec. 329 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dr. Marvin ZIPORYN, M.D., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 385

460 N.E.2d 385

121 Ill.App.3d 1051, 77 Ill.Dec. 329

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dr. Marvin ZIPORYN, M.D., Defendant-Appellant.

No. 82-2770.

Appellate Court of Illinois First District, Fourth Division.

Feb. 9, 1984.

Mary A. Anast, Chicago, Lawrence Jay Weiner, Fredric Bryan Lesser, Weiner, Neuman & Spak, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Chicago, Michael E. Shabat, Lawrence R. Stasica, Timothy J. Joyce, Chicago, of counsel, for plaintiff-appellee.

LINN, Presiding Justice:

Following a bench trial in the circuit court of Cook County, defendant, Marvin Ziporyn, was convicted of indirect criminal contempt. The behavior deemed contemptuous occurred during a pre-sentencing hearing when Ziporyn, a defense witness, after leaving the witness stand, walked over to prosecuting counsel and whispered a vile, obscene remark.

On appeal, defendant contends that (1) the trial court erred in finding his conduct contemptuous, (2) the trial court's imposition of a sentence of periodic imprisonment and probation was an abuse of discretion, and (3) he was denied a fair trial.

We reverse the decision of the trial court.

FACTS

Following a jury trial for murder in the circuit court of Cook County, a pre-sentencing hearing was held in the courtroom of Judge Richard L. Samuels to determine if Eunice Lyles, the convicted felon, would be sentenced to death. Defendant, Dr. Marvin Ziporyn, a psychiatrist, testified as an expert witness for the defense as to the mental condition of Eunice Lyles.

Defendant was cross-examined by Assistant State's Attorney Raymond Garza. Questioning by Garza was vigorous and aimed at impeaching defendant's credibility and character. Following this extensive and rather demeaning cross-examination defendant stepped down from the witness stand. As he did so, the court called two of the trial attorneys before the bench. The attorneys proceeded to engage in an off-the-record discussion with the court.

During this time, defendant walked over to Garza, who was seated at the prosecution counsel's table, and attempted to gain his attention. When Garza declined to respond, defendant said in a whisper loud enough to be heard only by Garza and two spectators, "Garza, your mother sucks cock." This vile epithet was brought to the court's attention only when Garza jumped up, repeated the remark in a louder than conversational tone in front of the jury and all those present, and demanded that defendant be held in contempt of court.

In response to the aforementioned incident, the State filed a verified petition for contempt, alleging that defendant's conduct was an affront to the court and to the administration of justice. At the initial hearing on the petition and the State's motion for a rule to show cause, Judge Samuels, who had presided at the presentencing hearing, ordered the contempt cause transferred to the presiding judge instanter for reassignment in the interest of fairness to defendant. The contempt proceeding came on for hearing on August 13, 1982, before Judge Cornelius J. Houtsma, Jr.

The first witness for the State, Vadless Reese, a spectator and a relative of Lyle's victim, testified that she heard defendant make the remark to Garza although he made it in a tone of voice she characterized as a whisper. The State's second witness, Assistant State's Attorney Edward Cozzi, testified that he "plainly" heard defendant make the offending remark in a tone of voice he described as neither loud nor a whisper.

Garza then testified that defendant made the remark "loud enough so that only I, not the jurors who were near, could hear it." He stated that he did not know if any of the jurors heard the remark and that he did not ask any members of the jury if they had heard the remark. The State did not call any jurors present at the incident to testify as to whether or not they heard the remark.

The first witness for the defense was Judge Samuels, who testified that he neither heard the remark nor observed the incident. Judge Samuels stated that it was Garza who called the statement to the court's attention when he repeated it in a louder than conversational tone in the presence of both the court and the jury. Judge Samuels testified that he did not notice any loud or boisterous conduct by defendant after defendant stepped down from the witness stand.

Defendant then testified on his own behalf. On cross examination, he admitted making the offending remark but stated that he made it only after being provoked by an ethnic slur made to him by Garza after he had approached the counsel table and attempted to gain Garza's attention. Defendant testified that when Garza " * * * insulted my people with [obscenity], I replied with the most venomous insult back to him" and that the insult was directed to Garza personally.

Judge Houtsma found that the testimony of the two witnesses who had actually heard the offensive remark was very credible. Conversely, he found defendant's testimony regarding the provocative slur by Garza incredible. Considering both the serious nature of the proceeding at which the conduct took place and the conduct itself, Judge Houtsma concluded that defendant's conduct

"hindered or obstructed the court in its administration of justice, was in degradation of the authority and dignity of the court, and intended to bring the administration of justice into disrepute all beyond a reasonable doubt."

On this basis, defendant was found guilty of indirect criminal contempt and sentenced to one year misdemeanor probation, five weekends of which were to be spent in the Cook County Department of Corrections. Defendant now appeals.

OPINION

Defendant was convicted of indirect criminal contempt. Contempt is generally defined as conduct calculated to embarrass, hinder or obstruct a court in its administration of justice, to derogate from its authority or dignity or bring the administration of law into disrepute. (People v. Siegel (1983), 94 Ill.2d 167, 171, 68 Ill.Dec. 118, 120, 445 N.E.2d 762, 764.) Civil or criminal contempt, categorized as either direct or indirect, is essentially sui generis and is largely dependent for its classification upon the nature of the punishment imposed. (People ex rel. Fahner v. Colorado City Lot Owners and Taxpayers Assn. (1982), 108 Ill.App.3d 266, 277, 63 Ill.Dec. 910, 917, 438 N.E.2d 1273, 1280.) When the punishment for the contemptuous conduct is imposed for a punitive rather than for a coercive purpose, the contempt is characterized as criminal rather than civil. Kay v. Kay (1974), 22 Ill.App.3d 530, 318 N.E.2d 9, 14.

Direct contempt has been defined as,

" * * * one which takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice. * * *."

(People v. Howarth (1953), 415 Ill. 499, 508, 114 N.E.2d 785, 790). Acts committed outside the physical presence of the judge but admitted in open court by the contemnor himself have also been held to constitute direct contempt. People ex rel. Chicago Bar Association v. Barasch (1950), 406 Ill. 253, 255, 94 N.E. 148, 149; People v. Patrick (1980), 83 Ill.App.3d 951, 954, 39 Ill.Dec. 451, 454, 404 N.E.2d 1042, 1045 citing People v. Berof (1937), 367 Ill. 454, 11 N.E.2d 936.

Indirect contempt occurs outside the presence of the court and is therefore dependent for its proof upon extrinsic evidence. (People v. Jashunsky (1972), 51 Ill.2d 220, 223-224, 282 N.E.2d 1, 4.) If some of the essential elements of the contempt are not personally observed by the judge, so that he must depend on statements made by others for his knowledge about those essential elements, the accused must be afforded notice, a fair hearing and an opportunity to defend. (Johnson v. Mississippi (1971), 403 U.S. 212, 215, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423.) Conversely, direct contempt, because it is not dependent upon extrinsic proof, may be adjudicated and punished summarily without the filing of charges, pleadings or trial. People v. Thor (1972), 6 Ill.App.3d 1045, 1049, 286 N.E.2d 769, 772.

Where, as here, defendant has been accused of indirect criminal contempt and where a punative sanction is sought, the State has the burden of proving the accused guilty beyond a reasonable doubt. (People v. Edwards (1979), 69 Ill.App.3d 626, 629, 26 Ill.Dec. 139, 141, 387 N.E.2d 969, 971.) Whether defendant has been proven guilty of indirect criminal contempt beyond a reasonable doubt is a question of fact to be determined by the trial court, and its decision will not be disturbed unless it is against the manifest weight of the evidence or the record discloses an abuse of discretion. In re Estate of St. George v. Lescher (1981), 99 Ill.App.3d 388, 390, 55 Ill.Dec. 222, 223, 426 N.E.2d 6, 7.

Here, the allegedly contemptuous conduct occurred outside the presence of the court, i.e., defendant's conduct was neither heard nor seen by the trial judge. Therefore, extrinsic evidence was necessary to substantiate the charged contempt. While it is true that the defendant subsequently admitted, in open court, making the offending remark, and while under some circumstances this could justify the court's summarily punishing it as direct contempt, such is not the case here. Because Judge Samuels ordered the cause transferred for reassignment prior to trial, the judge presiding at the contempt trial had no personal knowledge of the allegedly contemptuous conduct. Thus, the addition of defendant's admission did not bring all the essential elements of the contempt within the judge's personal knowledge so as to obviate the need for extrinsic proof. The State was, therefore, not relieved of its burden of proving defendant guilty beyond a reasonable doubt.

The State's burden, in the instant case, was not to prove that defendant made the offending remark, for...