Russell v. State, No. 2-481A114

Docket NºNo. 2-481A114
Citation428 N.E.2d 1271
Case DateDecember 08, 1981
CourtCourt of Appeals of Indiana

Page 1271

428 N.E.2d 1271
Charles M. RUSSELL, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2-481A114.
Court of Appeals of Indiana, Fourth District.
Dec. 8, 1981.

Page 1272

Linda Zook, Choate, Visher, Haith & Zook, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

MILLER, Presiding Judge.

Charles M. Russell, an attorney, brings this appeal from his conviction for direct (criminal) contempt which occurred during his representation at trial of an accused criminal. Russell's summary conviction was based on an improper remark directed to the deputy prosecuting attorney in the presence of the trial judge and jury. He contends the court erred 1) in finding his conduct contemptuous; 2) in making a nunc pro tunc entry subsequent to his conviction which materially altered the grounds therefor (from merely uttering rude language to shouting it), thus denying him notice of the charges and an opportunity to respond, and 3) in failing to warn Russell his actions would be considered contemptuous. Because the record does not reveal his remarks constituted a gross violation of decency and decorum within the meaning of relevant case law or that they "disturbed" the business and proceedings of the trial court as prohibited by Ind.Code 34-4-7-1, we reverse.

The record of the proceedings on October 21, 1980 discloses the following colloquy during the course of trial and in the presence of the jury after Russell obtained a copy of a deposition from the deputy prosecutor's table:

"MR. COMMONS (Deputy Prosecutor): Excuse me Mr. Russell, I believe that's my deposition. Why don't you use your own copy?

MR. RUSSELL: I would if you had supplied me with one.

MR. COMMONS: I don't have the obligation to supply you with one. May I have my deposition back?

MR. RUSSELL: Sure. Your Honor, we were never supplied with one and we asked for one and we never received one. I would like to use a deposition to support our case.

THE COURT: Who's the Court Reporter who took the deposition? Did you request that and tender funds?

MR. RUSSELL: We made the request in court and there was never any response after that Your Honor.

THE COURT: Well, normally, depositions are paid for by the attorney who requests them.

MR. RUSSELL: That's fine Your Honor, but we never heard anything more from the Court Reporter with regard to the same. We would have been happy to.

THE COURT: You filed a Praecipe and tendered funds?

RUSSELL: Your Honor, we did not file a Praecipe. We made the request in court and I don't see what the harm is. There is a deposition right here. It's not hurting the State-there's no prejudice to the State. We did ask for it. We don't have it. They are testifying from it. They should have nothing to hide from me.

THE COURT: Is that a certified copy?

MR. COMMONS: No Your Honor, it's not. This document, in my opinion, would not be admissible as evidence because it is not in the proper form.

THE COURT: It has not been certified by the Court Reporter?

MR. COMMONS: That's correct Your Honor. That's why the State referred to Mr. Sells for his testimony rather than offering it.

MR. RUSSELL: Then if that's so Your Honor, it is perfectly admissible discovery material that we were entitled to a copy of.

Page 1273

THE COURT: Weren't you present during the deposition?

MR. RUSSELL: Yes Judge.

THE COURT: Then you would receive the copy of the deposition by paying for it, not by the State paying for it.

MR. RUSSELL: We asked for it Judge. We never got any further information in regards to it.

THE COURT: Well, now, your financial obligation to the Court Reporter is beyond the Court's discretion to make any determination as to whether you did or did not pay.

MR. RUSSELL: Judge, we would have paid for it had we received any information that it was going to be prepared for us. I believe at that time that the statement was made that it would be available for our use in court, if necessary, and there it is and we need it right now. This is a criminal trial. This man is faced with armed robbery.

MR. COMMONS: Judge, I think at this time it would be appropriate to-

MR. RUSSELL: I would like to finish my statement, Your Honor.

MR. COMMONS: Excuse me Mr. Russell.

MR. RUSSELL: I will excuse you if you sit down and shut up.

THE COURT: Both of you, please sit down. Mr. Russell!! (To bailiff) Would you please excuse the jury? I would admonish you not to discuss any testimony that you have heard or to form a conclusion until it is submitted to you for final deliberation.

(The jury is removed from the courtroom)

THE COURT: Mr. Russell, this Court finds that your behavior is contemptuous. For you to utter the words 'to shut up' to an officer of this court in the presence of the jury and in the presence of the Judge is a contemptuous act and I am finding you in contempt of this court. Do you wish to respond to that?

MR. RUSSELL: Your Honor, I was making a statement and for the umpteenth time this gentleman stood up yelling and screaming at me. If you will recall, yesterday he screamed at me at the top of his voice when I was making a statement to a witness or to yourself Your Honor. I did not say a word to him. There was no response from this court. There was no response to the jury from this court to disregard this man's statement or his conduct. Today he stood up and he did the same thing. I was talking to you. I was interrupted, which you know is not and was not proper. I have to defend my client and that is the best that I was doing. If the Court took that my actions, as being disrespectful to the Court, they were certainly not intended to be so nor were they intended to be disrespectful to the jury but I have to protect this man and I'm doing the best that I can and when I am interrupted and yelled at and screamed at, I think that there comes a limit to what you can take on that. Thank you Judge.

THE COURT: Nevertheless, this Court does find that you are in contempt of this court and I am going to fine you in the amount of $250.00 for your contemptuous acts. We will take a fifteen minute recess and we will proceed with the trial." (Emphasis added.)

Some two months later, on January 5, 1981, the trial judge overruled Russell's motion to reconsider the contempt conviction and entered the following change in her finding, which she denominated as a nunc pro tunc order:

"Jury minutes amended in first paragraph to insert after the words 'Court now finds Attorney Charles Russell in contempt of this Court for Attorney Russell's action .... of shouting "shut up" at an officer of the Court during the jury trial 'and Before the words 'and fines Attorny (sic) Charles Russell $250.00." (Emphasis added.)

On appeal, Russell persuasively maintains his statement to the deputy prosecutor was not sufficiently disruptive to sustain a conviction for criminal contempt as charged by the trial judge. The relevant statute, IC 34-4-7-1, defines criminal contempt as follows:

Page 1274

"Every person who shall, by the commission of any felony, misdemeanor, or other unlawful act; or by talking, moving about, or by signs, gestures, or in any other manner, in any court of record, while the same is open for the transaction of business, or engaged therein, create any noise therein, whereby the business and proceedings of said court shall be disturbed shall be deemed to be guilty of a direct contempt of said court." (Emphasis added.)

In addition, our Courts have held "(t)hese statutory definitions are not all-inclusive of what constitutes direct criminal contempt; they are merely legislative recognition of the court's inherent power to cite and punish for contempt." Skolnick v. State, (1979) Ind.App., 388 N.E.2d 1156, cert. denied, (1980) 445 U.S. 906, 100 S.Ct. 1085, 63 L.Ed.2d 323. Accord, McIntire v. State, (1967) 248 Ind. 142, 223 N.E.2d 347; LaGrange v. State, (1958) 238 Ind. 689, 153 N.E.2d 593. "To protect itself against gross violations of decency and decorum, it is a necessary incidental power of a Court." (Emphasis added.) McQueen v. State, (1979) Ind., 396 N.E.2d 903, 904, quoting Brown v. Brown, (1853) 4 Ind. 627, 628. Direct contempt means "conduct directly interfering with court proceedings while court is in session, including creation of noise or confusion, disrespectful conduct and refusing to take the witness stand in a trial." (Emphasis added.) LaGrange v. State, supra 238 Ind. at 694, 153 N.E.2d at 596.

In cases of direct contempt, a court on appeal will accept as true the statement entered of record by the lower court of the matter constituting the contempt, and cannot interfere "unless it clearly appears the judgment is wrong." Blankenbaker v. State, (1929) 201 Ind. 142, 153, 166 N.E. 265, 268. However, an appellate court "will examine the record, if necessary, to determine whether the acts alleged to be contemptuous do, in fact, constitute contempt." State ex rel. Stanton v. Murray, (1952) 231 Ind. 223, 235, 108 N.E.2d 251, 257. Accord, Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454.

In the instant case the trial judge alleged that for Russell "to utter the words 'to shut up' to an officer of this court (opposing counsel) in the presence of the jury and in the presence of the Judge is a contemptuous act...." The trial transcript, as quoted above and certified as correct by the trial judge, reveals Russell's specific remarks were "I will excuse you if you sit down and shut up."

We do not by any means condone the character of these remarks by Russell, made in response to the deputy prosecutor's assertion, "(e)xcuse me." We further do not believe, however, based on the transcript of the trial above quoted including the record of the contempt proceedings, that the alleged offensive language, if merely uttered, manifested either a disturbance in the "business and proceedings" of the trial court as defined by IC 34-4-7-1, supra, a direct interference with...

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6 practice notes
  • Taylor v. State, No. 382S106
    • United States
    • Indiana Supreme Court of Indiana
    • August 9, 1982
    ...were sufficient written memorabilia to support the nunc pro tunc amendment of the order book. Russell v. State, (1981) Ind.App., 428 N.E.2d 1271; Huffman v. Huffman, (1981) Ind.App., 424 N.E.2d 456. He argues, however, that the nunc pro tunc entry was improper in that the court failed to gi......
  • Caito, In re, No. 883S291
    • United States
    • Indiana Supreme Court of Indiana
    • February 29, 1984
    ...acts do not constitute contemptuous acts. Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454; Russell v. State, (1979) Ind.App., 428 N.E.2d 1271. Under the statutes, if a grand jury witness refuses to testify invoking his privilege against self-incrimination, the trial judge may grant use ......
  • Hopping v. State, No. 15A04-9307-CR-264
    • United States
    • Indiana Court of Appeals of Indiana
    • January 31, 1994
    ...the statement entered of record Page 878 by the trial court of the conduct constituting the contempt. Russell v. State (1981), Ind.App., 428 N.E.2d 1271, 1274 However, we will examine the record, if necessary, to determine whether the conduct alleged to be contemptuous does, in fact, consti......
  • C.F. v. State, No. 82A04-8709-CR-276
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1988
    ...acts do not constitute contemptuous acts. Grimm v. State (1959), 240 Ind. 125, 162 N.E.2d 454; Russell v. State (1981), Ind.App., 428 N.E.2d 1271. In re: Caito (1984), Ind., 459 N.E.2d 1179, Regarding witnesses who testify under a grant of immunity, IC 35-34-2-8(c) provides (c) If a witness......
  • Request a trial to view additional results
6 cases
  • Taylor v. State, No. 382S106
    • United States
    • Indiana Supreme Court of Indiana
    • August 9, 1982
    ...were sufficient written memorabilia to support the nunc pro tunc amendment of the order book. Russell v. State, (1981) Ind.App., 428 N.E.2d 1271; Huffman v. Huffman, (1981) Ind.App., 424 N.E.2d 456. He argues, however, that the nunc pro tunc entry was improper in that the court failed to gi......
  • Caito, In re, No. 883S291
    • United States
    • Indiana Supreme Court of Indiana
    • February 29, 1984
    ...acts do not constitute contemptuous acts. Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454; Russell v. State, (1979) Ind.App., 428 N.E.2d 1271. Under the statutes, if a grand jury witness refuses to testify invoking his privilege against self-incrimination, the trial judge may grant use ......
  • Hopping v. State, No. 15A04-9307-CR-264
    • United States
    • Indiana Court of Appeals of Indiana
    • January 31, 1994
    ...the statement entered of record Page 878 by the trial court of the conduct constituting the contempt. Russell v. State (1981), Ind.App., 428 N.E.2d 1271, 1274 However, we will examine the record, if necessary, to determine whether the conduct alleged to be contemptuous does, in fact, consti......
  • C.F. v. State, No. 82A04-8709-CR-276
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1988
    ...acts do not constitute contemptuous acts. Grimm v. State (1959), 240 Ind. 125, 162 N.E.2d 454; Russell v. State (1981), Ind.App., 428 N.E.2d 1271. In re: Caito (1984), Ind., 459 N.E.2d 1179, Regarding witnesses who testify under a grant of immunity, IC 35-34-2-8(c) provides (c) If a witness......
  • Request a trial to view additional results

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