State ex rel. Tannenbaum v. Clark, WD

• Decision Date: 28 July 1992
• Docket Number: No. WD,WD
• Citation: 838 S.W.2d 26
• Parties: STATE of Missouri ex rel., Kari TANNENBAUM, Relator, v. The Honorable Thomas C. CLARK, Judge of the Circuit Court of Jackson County, Missouri, Respondent. 45864.
• Court: Missouri Court of Appeals

Page 26

838 S.W.2d 26

STATE of Missouri ex rel., Kari TANNENBAUM, Relator, v. The Honorable Thomas C. CLARK, Judge of the Circuit Court of

Jackson County, Missouri, Respondent.

No. WD 45864.

Missouri Court of Appeals,

Western District.

July 28, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 1, 1992.

Application to Transfer Denied Oct. 27, 1992.

Bruce W. Simon, Kansas City, for relator.

Bruce C. Houdek, Kansas City, for respondent.

Before SHANGLER, P.J., and TURNAGE and FENNER, JJ.

SHANGLER, Presiding Judge.

This is an original proceeding in prohibition to prevent the respondent circuit judge, the Honorable Thomas C. Clark, from the execution of an order of direct criminal contempt entered against the relator attorney, Kari Tannenbaum. The order adjudged the relator Tannenbaum guilty of two contempts. The first contempt was punished by a fine of $100, "immediately payable," and the second, by two days' confinement in the Jackson County Detention Center.

The relator sought and had our writ of prohibition before the execution of the orders of contempt and confinement. There is no right of appeal from an order of criminal contempt. In re Randolph, 474 S.W.2d 36, 39[8-10] (Mo.App.1971). Where the contemnor is committed to jail, the validity of the judgment is tested by the writ of habeas corpus. Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964). Where the contemnor is ordered to jail but the judgment remains unexecuted, the validity of the judgment is tested by prohibition. State ex rel. Burrell-El v. Autrey, 752 S.W.2d 895, 901 (Mo.App.1988).

The offense for which the relator attorney was ordered fined and committed was direct criminal contempt in the actual presence of the court. It is a contempt punishable by the court summarily. Rule 36.01(a); § 476.130, RSMo 1986. A contempt of court, although not a criminal prosecution in the usual sense, is a specific criminal offense, and the sentence or fine imposed is a judgment in a criminal case. Ex parte Brown, 530 S.W.2d 228, 230 (Mo. banc 1975); Osborne v. Purdome, 244 S.W.2d 1005, 1012 (Mo. banc 1951), cert. denied, 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952). "The adjudication is a conviction, and the commitment in consequence thereof is execution." In re Shull, 221 Mo. 623, 121 S.W. 10, 11 (1909). It is in the perspective of a punitive proceeding, criminal in nature, whereby the contemnor is deprived of liberty and property, that the requirements of Rule 36.01(a) and § 474.140 are read. In re Shull, 221 Mo. 623, 121 S.W. 10, 11; Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 922 (banc 1912).

Rule 36.01(a), which compresses half of § 476.130 and all of § 476.140 into an integral guide for direct criminal contempt, provides:

A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The judgment of contempt and the order of commitment shall recite the facts and shall be signed by the judge and entered of record.

The direction of Rule 36.01(a) that [t]he judgment of contempt shall recite the facts is a distillation and codification of the case law developed on these sections over the years. Ex parte Brown, 530 S.W.2d at 231. These decisions express the principle that in criminal contempt proceedings, "the facts and circumstances constituting the offense, not mere legal conclusions, must be recited with particularity in both the judgment of contempt and the order of commitment." Id. That particularity must be such that a superintending court can determine from the judgment itself, without resort to intendment, inference or presumption, whether the words constitute a criminal contempt. The rule is that of strict construction in favor of the contemnor. Ex parte Stone, 183 S.W. 1058, 1059 (Mo. banc 1916); Scott v. Davis, 328 S.W.2d 394, 396[1-3] (Mo.App.1959). The guilt of the contemnor must appear beyond a reasonable doubt. Curtis v. Tozer, 374 S.W.2d 557, 581 (Mo.App.1964). It is well to remark that the insistence of the law for strict procedure in criminal contempt is to counterpoise the imbalances of this punitive, albeit sui generis, proceeding. "Judgments in contempt proceedings The contemnor, public defender Kari Tannenbaum, was counsel for the accused Rafael P. Lopez in a criminal prosecution pending for trial that day before the Honorable Thomas C. Clark, the respondent judge. Lopez was a Cuban who did not speak or understand the English language. There was preliminary discussion at the bench as to whether the court would accept the waiver by the defendant of a trial by jury, and whether an interpreter was due him. An interpreter was allowed and one, Calderon, appeared for that purpose. The incidents of pre-trial occupied the rest of the day.

are in a measure different from other judgments. They are judgments entered by one not altogether disinterested. They may not be cool, dispassionate judgments, but may be shaded by the feelings of one presiding over a court thought to have been outraged by the conduct of a person in attendance upon such court." Ex parte Creasy, 148 S.W. at 917. Thus, in a direct contempt the contemnor is confronted by an accusation made by the judge, who is both the complainant and the adjudicator of the complaint. The accused contemnor is entitled to no notice, no written charge, no statement of particulars. "He is not entitled to a hearing in the ordinary sense of the word, and often the only record is the order the judge makes. He cannot take a change of venue or demand trial by jury. He cannot appeal. However sure we may be of the absolute integrity of the magistrate [as we are in this case] and though we accord to him every possible attribute of cold, impersonal judicial fairness, he is, as is any judge, still the person in the chair, and he is a human being." Scott v. Davis, 328 S.W.2d at 397.

At the beginning of the second day of pretrial proceedings, the court mentioned his understanding that the defendant Lopez, that morning, "caused some difficulty in the jail." The court addressed the defendant Lopez with an explanation of "summary direct criminal contempt." The defendant responded in Spanish, and Calderon interpreted: "He wants me to tell you what they did to him." The court responded: "I'm going to hear. He's going to have a chance." The court then summoned the five guards present at the jail incident "to come on up" so that the court could "talk to them about what happened." Elmer, co-counsel for the defendant objected to the inquiry, since the incident "didn't happen in the courtroom," and so was not relevant to the criminal proceeding. The court overruled the objection.

The five officers gave their narratives of the event. They related that as Lopez was dressing for the court appearance he was told that he could not use his personal socks, but was required to use county socks. Lopez became upset, argumentative and combative, and spit in the face of the officers and fought with them. At the conclusion of the officers' presentations, the court asked: "Okay, does Mr. Lopez like to tell me his version of this?" Attorney Tannenbaum asked the court: "Your Honor, I first inquire the purpose of this hearing." The court explained: "Well, the purpose is to decide how we're going to conduct ourselves. I asked you a question. Does he want to tell me his version or not?" Tannenbaum responded: "Yes, Your Honor, we would need an opportunity to discuss with him his Fifth Amendment right not to testify against himself." The court interrupted: "Haven't you done that already? You mean you haven't done that at this stage of the proceedings? You've not discussed his Fifth Amendment rights and we're on the verge of trial?" Tannenbaum undertook to explain that she had not done so with regard to an incident in jail. The court commented: "[I]f you haven't discussed them at this point in time, you're not fulfilling your responsibilities as a practicing lawyer in this jurisdiction." The court commented also: "And I'm not going to be lectured by you. Either you have or you haven't advised him of his Fifth Amendment rights. And if you haven't, it's a disgrace." The court continued: "All I want to know from you is simply this. Do you want to tell me his version of this fiasco or not?" The court then conditioned his decision to allow Tannenbaum's request to consult with her client, Lopez, in the witness room, on whether or not Lopez The court acceded to the request of counsel to interview the client in the witness room, but only in the company of the five officers from the jail. Counsel Elmer objected to the presence of the officers in the witness room "during a privileged communication." The court expressed concern that the witness would attempt to escape. Counsel Tannenbaum responded that there was no objection to "them standing outside of the witness room so that there's no possibility of escape." She asked only "for a private communication with him in the witness room." The court responded: "And I'm denying that unless you guarantee one, that he will act in a civilized way, and, two, that he will not escape." The court added: "[I]f you're not going to guarantee that, then we're going to have to protect society from such a volatile and destructive person." Counsel Tannenbaum objected: "Your Honor, I object to that characterization of Mr. Lopez. If you're denying us [i]f you're denying us a right to talk to him" The Court warned:

                agreed "to conduct himself in a civilized manner."   Counsel responded:  "Your Honor, Mr. Lopez said he would conduct himself properly, that he has not had any problems here in court, that the problems are at the jail.  And he would like to go back to the witness room to have a private conversation with his attorney."   The court remarked:  "Okay, now you have just testified for him.  You have just testified and perhaps waived his Fifth Amendment

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