Russell v. State
Decision Date | 08 December 1981 |
Docket Number | No. 2-481A114,2-481A114 |
Citation | 428 N.E.2d 1271 |
Parties | Charles M. RUSSELL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Court | Indiana Appellate Court |
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.
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:
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:
"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 the same, LaGrange v. State, supra,...
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