Sanborn, In re, s. 45703

• Decision Date: 06 November 1971
• Docket Number: 45708,Nos. 45703,45712 and 45713,45704,s. 45703
• Citation: 208 Kan. 4,490 P.2d 598
• Parties: In re Keith SANBORN. STATE of Kansas, Appellee, v. Vernon S. PIERCE et al., Defendants, Keith Sanborn, Respondent in Contempt Proceedings, Appellants.
• Court: Kansas Supreme Court

Page 598

490 P.2d 598

208 Kan. 4

In re Keith SANBORN STATE of Kansas, Appellee, v. Vernon S. PIERCE et al., Defendants Keith Sanborn, Respondent in Contempt Proceedings, Appellants.

Nos. 45703, 45704, 45708, 45712 and 45713.

Supreme Court of Kansas.

Nov. 6, 1971.

Syllabus by the Court

1. Upon review of a contempt conviction this court has authority to examine the language or acts found to be contemptuous and determine whether they are sufficient to constitute contempt.

2. Generally criminal contempt is conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice.

3. To consitute a direct contempt of court there must be some disobedience to its order, judgment or process, or some open and intended disrespect to the court or its officers in the presence of the court, or such conduct in or near the court as to interrupt or interfere with its proceedings, or with the administration of justice.

4. A judge must have power to protect himself from actual obstruction in the courtroom but at the same time it is essential to a fair administration of justice that a lawyer be able to make honest good-faith efforts to present his client's case.

5. In a proceeding wherein a county attorney was found guilty of seven acts of direct criminal contempt the record on appeal is examined and held not to sustain the judgments of conviction.

R. K. Hollingsworth, Deputy County Atty., argued the cause, Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for the appellants.

Everett C. Fettis, Wichita, argued the cause and was on the brief for the appellee.

HARMAN, Commissioner:

Appellant Keith Sanborn, county attorney of Sedgwick county, seeks annulment of seven convictions of direct contempt of court entered against him by the Sedgwick county district court upon each of which he was sentenced to pay a fine of $25.00. The conduct found contemptuous occurred while appellant was acting as attorney for the prosecution in the jury trial of nine defendants charged with varying felonies whose convictions comprise the appeal in State v. Pierce et al., 208 Kan. 19, 490 P.2d 584, this day decided.

The principal trial in district court commenced March 24, 1969. The defendants were represented by Mr. Chester I. Lewis and Mr. Charles Scott. On the morning of April 8, 1969, the following proceedings occurred in the absence of the jury:

'THE COURT: Gentlemen, I have given much thought to the problems of-that have come up from time to time in regard to statements of counsel which were not warranted, objections which contained more than the legal points involved, and the fact that since this trial commenced we have been unable to start on time at any session. Henceforth, if there is to be a legal objection I will expect counsel, and counsel are ordered, to merely advise the Court that they object. If I need any legal reason for the objection I will ask counsel for the legal basis. In the event that there is a request to strike the testimony in addition to the objection, counsel may also request that the testimony be stricken. But there is to be nothing further said in regard to any objections leveled against testimony or evidence-physical evidence. In the event counsel feel it is necessary to argue concerning the admission of evidence or conduct of counsel, then request may be made to the Court for permission to argue, which may or may not be granted. But no argument is to take place without permission.

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'Any violation of these rules-and these rules will be rules in effect during the remainder of this trial-and in the event of any violation it will be considered a direct contempt of this Court, and it is my intention to assess a find of $25 upon each direct contempt action. I might add, what I will do is just have the court reporter tab the spot which I fell is contemptuous if it does occur, which I hope it doesn't.'

Later on the same day, after the taking of certain testimony, the following occurred:

'MR. SANBORN: I'd like to respectfully ask your Honor to consider the legal import of a portion of the announcement you made at the beginning of the hearing. That has to do with making a general objection only without stating the legal ground of the objection. And I believe that it is both the duty and the obligation of lawyers when making a record to state the legal ground of their objection. And I request your Honor to-over the lunch hour to reconsider one portion of your ruling having to do with making a general objection only and ask you to modify it to the extent of-without getting in to any argument, but to the extent of stating the legal basis, as I fear that it would so circumscribe the ability to make a record that it might-well, you can see the implications, I think.

'THE COURT: No, I can't.

'MR. SANBORN: Well, the implication is that you have advised the lawyers that they may not state the legal grounds of their objection. And I believe that this exceeds the-well, it exceeds the-it prevents the record stating what is essential if there should be a review for the basis up on which offers were made.

'THE COURT: If I need help with legal reasons I have stated I will ask counsel for their legal reasons. If not, the Court can say that I shouldn't have done what I did. But as far as I am concerned there hasn't been any strictly legal objection throughout the course of this trial. I'm tired of it, and I'm tired of the arguing, and rightly or wrongly I'm going to shorten this matter up.

'MR. SANBORN: Well, just so the record clearly shows that.

'THE COURT: I think it would be better if the reasons were stated, but they have not been stated in most instances with particularity and so the ruling is going to remain the same.'

The following day, April 9, this occurred:

'MR. SANBORN: Your Honor, with respect to one of the-I can only discuss one of the reasons I asked to see your Honor in chambers with counsel and with no one else present because that involves relationship of counsel and the Court, and it's not a matter of propriety for me to take it up other than with the Court and the counsel. However, I can-I know you've announced that you have to leave right away, so I can take upon the second part of what I wish to take up. And I believe that the law is-we've done some research on it-I think the rocord should reflect this and I wish your Honor would take time to look at some of these things we've extracted from Wigmore, because the posture on appeal if only a general ground of objection is stated, I believe from reading these cases is that kno appeal can be taken from any ruling which states only a general ground, and that that precludes appeal. I believe further that for-on the part of the State that it is not possible to conduct the examination with respect to certain types of evidence, and I refer to those upon which there are certain grounds and circumstances which they can be admissible under which are exceptions to certain general rules; and so far as our research has disclosed it is stated that the reason counsel must and should state his specific grounds is because no Court can have at his fingertips all the various rules of evidence and rules of law; and the appellate courts have frequently said that no trial court should be expected to do that. And when you're in the--

'THE COURT: Yes, but I want to do it. I don't mean to cut you off, but I'm not goint to change my ruling.

'MR. SANBORN: Well, I am trying to tell your Honor that it is part of the duty of an advocate to make a record.

'THE COURT: Yes.

'MR. SANBORN: It is part of the duty of an advocate to examine his witnesses and to propound any question which he deems should be asked of the witness in order to bring out the facts and circumstances of which he knows which bear a relationship to his case.

'THE COURT: I agree.

'MR. SANBORN: Even though he may not for some basis of legal ruling succeed in eliciting the testimony, still it quite often happens that in certain circumstances witnesses being unfamiliar with the Court and things of that nature, they do under certain rules of evidence-and well recognized rules, I think-you have to ask certain questions in a certain way and you have to tell the Court the basis upon which you are asking the questions, sometimes the connection that it bears with other evidence to make a chain of circumstances; and to do that of course you have to rise, that's the rule of Court prescribed by the Supreme Court of this State and you have to address that to the Court. And so number one and the only part I think that I can properly discuss in the presence of anybody but counsel and the Court, and I've thought about this very deeply. I thing that-I asked for this and I discussed it with Mr. Scott already, and I don't know what they believe the law to be, but I do believe that if a record continues to be made under circumstances when there are only general objections, from that time on all appeal on those matters will be-if I read these rules right-waived. And no way to bring it up at a later time. And I want the record to show what it has now shown with this being granted by the Court. And I have tried on several occasions and I still feel that it is-and the only way with propriety and I should and I think it's the only proper way is for the other thing that it not be discussed with any other person than the Court and the lawyers. Because that particular matter I know when you take anything like that up with the Court you are supposed not to take it up in the presence of other persons. And I know that you didn't have much time, that is, for this

'But I've been trying to be able to do this on several different occasions, and I just think that this must be some time put in this record and done. Because...