State v. Dostal
| Citation | 28 Ohio St.2d 158,277 N.E.2d 211 |
| Decision Date | 22 December 1971 |
| Docket Number | No. 71-252,71-252 |
| Parties | , 57 O.O.2d 399 The STATE of Ohio, Appellee, v. DOSTAL et al., Appellants. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
The decision of the United States Supreme Court in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, holding that 'no offense can be deemed 'petty' for purposes of the right of trial by jury where imprisonment for more than six months is authorized,' insofar as it may be considered applicable to cases of criminal contempt in Ohio courts, should be applied only to those trials commencing on or after the date of the decision, June 22, 1970.
The essential facts of this case are accurately summarized by the Court of Appeals as follows:
'The uncontested evidence offered in the trial court shows the defendants-appellants, hereinafter referred to as 'appellants,' were members of a group called 'The July 23rd Defense Committee' and had on May 26th and May 27th, 1969 occupied and obstructed a hallway leading from the main rotunda of the Criminal Courts Building of Cuyahoga County to the offices of Cuyahoga County Prosecuting Attorney John T. Corrigan.
'The evidence further showed that, as a result of the group's activities of May 26th and May 27th of 1969, five of the six Common Pleas Criminal Court Judges on May 28, 1969 issued a court order which stated in part:
'No person or persons * * * shall loiter in or about the Criminal Courts Building, 1560 East 21st Street, Cleveland, Ohio.
'The evidence further showed that the court's order was posted on the main entrance door to the Criminal Courts Building and on a pillar ten feet inside the main entrance to the building after being filed with the Clerk of Courts of Cuyahoga County. The posted order was read by appellants Zilsel, Dostal and Utgoff and appellant Dostal proceeded to purchase a copy of the said court order.
'The evidence further showed that appellant Dostal made a telphone call and one-half hour later six (6) carloads of people arrived at the scene, marched in a military manner to the Court House with appellant Mallory in the lead, and proceeded up the steps of the Court House where they were met by Deputy Sheriff Brockhurst who informed the group that the court order prohibited demonstrations in or about the Court House and that they would not be admitted en masse to the Court House. He advised them that they could enter one at a time. Appellants Dostal, Zilsel and Utgoff, remained on the scene, a few feet from the group headed by appellant Mallory throughout the ensuing confrontation.
'Appellant Mallory then told the group of fifty to sixty, 'All right brothers, block it up-nobody enters the courtrooms and nobody leaves the courthouse.' She and her followers then, except for appellants Dostal, Zilsel and Utgoff, blocked the entrance to the Court House across the entire length of the steps approximately six to eight feet deep in number.
'The evidence further showed said action by the appellants occurred at 11:00 a. m., that the Court House was in session and that no one was permitted to leave or enter the Court House at that time. Several people attempted to make entrance into the building on court business and they were physically prevented from doing so by the appellants, with the exception of Dostal, Zilsel and Utgoff.
'At this point Captain Kulis of the sheriff's office read the court's order over a megaphone and advised the appellants that they had two minutes to disperse or they would be arrested for contempt of court. Appellant Mallory advised the group that 'those who do not want to be arrested can leave.' Approximately one-third of the group left and were not arrested. Those remaining, including Dostal, Zilsel and Utgoff, were arrested.
'Written charges of contempt were drafted by the prosecutor's office substantially setting forth the above sequence of facts and said written charges were served on each of the appellants.
2
In their appeal to the Court of Appeals, appellants filed eight assignments of error. Each was overruled and the judgments were affirmed by that court.
In their motion to certify the record and brief in support of jurisdiction in this court, appellants sought to raise five issues. Finding that only one issue qualified as a matter of public or great general interest, or as a substantial constitutional question, this court allowed the motion to certify the record limiting the appeal to the issue of whether the trial court erred in rejecting appellants' demands for jury trial.
John T. Corrigan, Pros. Atty., Dennis J. McGuire and William J. Coyne, Cleveland, for appellee.
Good & Haffner and Walter S. Haffner, Cleveland, for appellants.
Essentially, we are here concerned with a determination of the scope of the recent holdings of the United States Supreme Court that, under some circumstances, a person charged in a state court with criminal contempt is entitled to a trial by jury; and, specifically, with the question of the applicability of such holdings to a trial held in June 1969. Requests for jury trial were made prior to trial herein and refused by the trial court.
Appellants assert, in effect, that such right of trial by jury was established by Bloom v. Illinois (1968), 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, as to all criminal contempts except 'petty offenses'; that the line of demarcation between 'petty offenses' and 'serious crimes' or 'serious offenses' has since been established by Baldwin v. New York (1970), 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, at 'more than six month's imprisonment'; that Baldwin's definition of a 'petty offense' should be applied retrospectively to the date of Bloom (May 20, 1968); that since the trial court herein imposed a sentence on one of appellants (Mallory) in excess of six months' imprisonment, the charges of contempt against each of appellants must now be considered as 'serious offenses' within the meaning of Bloom, and each of the judgments reversed because of the refusal by the trial court to grant a jury trial.
With reference of those appellants other than Mallory, we reject this assertion upon the basis that in determining the right of trial by jury in contempts, as to which there is no established maximum penalty, the United States Supreme Court has looked to 'the penalty actually imposed.' Bloom v. Illinois, supra (391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522); Cheff v. Schnackenberg (1966), 384 U.S. 373, 86 S.Ct. 1523, 1537, 16 L.Ed.2d 629; Dyke v. Taylor Implement Mfg. Co. (1968), 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538. Although a joint trial was held, each of the appellants was treated separately in the findings of guilt and sentencing.
So far as Ohio law is concerned, the type of contempt here involved does not have a maximum penalty. State v. Local Union (1961), 172 Ohio St. 75, 173 N.E.2d 331. Thus, as to all appellants except Mallory the application of the 'penalty actually imposed' test leads to the 'conclusion that the conviction of each was treated by the court as a 'petty offense,' even if we assume (1) that the 'more than six months' imprisonment' test of Baldwin is applicable to all criminal contempts, including those involving a direct interference with the ability of a court to physically operate, and further assume (2) that the Baldwin test, announced on June 22, 1970, is applicable to a trial held in June 1969.
We conclude that the trial court did not err in its finding of guilt and its imposition of sentence as to such other appellants.
We turn now to the consideration of the conviction of appellant Mallory. To bring the issues into proper focus, a somewhat abbreviated review of recent constitutional 'interpretative' history is indicated.
Prior to Green v. United States (1958), 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672, as noted in the concurring opinion of Mr. Justice Frankfurter, the power of a court to punish for contempt after hearing without the intervention of a jury had been accepted without question by some 53 Justices of the United States Supreme Court over a span of some 150 years. Green was found guilty of contempt and sentenced to three years imprisonment by a United States District Court for wilfully disobeying an order to surrender to the United States Marshal for execution of sentence, after having been released on bail pending appeal on a criminal conviction. His conviction and sentence for contempt was affirmed by the United States Supreme Court in a divided decision, holding that criminal contempts were not subject to jury trial as a matter of right, and that the Constitution did not require a prison term of more than one year for contempt be based on a grand jury indictment. Justice Black (joined by Chief Justice Warren and Justice Douglas) dissented, holding that, notwithstanding the precedents, the time had come for establishing a rule that persons charged with contempt consisting of actions outside the courtroom are entitled to trial by jury and, where 'severe prison sentences or fines' may be imposed, to indictment...
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