State v. Kilbane

• Decision Date: 13 February 1980
• Docket Number: No. 79-156,79-156
• Citation: 400 N.E.2d 386,61 Ohio St.2d 201
• Parties: , 15 O.O.3d 221 The STATE of Ohio, Appellant, v. KILBANE, a.k.a. Braun, Appellee.
• Court: Ohio Supreme Court

Page 201

61 Ohio St.2d 201

400 N.E.2d 386, 15 O.O.3d 221

The STATE of Ohio, Appellant, v. KILBANE, a.k.a. Braun, Appellee.

No. 79-156.

Supreme Court of Ohio.

Feb. 13, 1980.

Syllabus by the Court

1. Courts, in their sound discretion, have the power to determine the kind and character of conduct which constitutes direct contempt of court. In imposing punishment for acts of direct contempt, courts are not limited by legislation but have the power to impose a penalty reasonably commensurate with the gravity of the offense. (State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331, paragraph four of the syllabus, approved and followed.)

2. The primary purpose of a criminal contempt sanction must be to vindicate the authority of a court and it, therefore, must be determinate. Conditions, however, may be attached to such a determinate sentence which allow for earlier termination of the sentence.

Defendant-appellee herein, Carol Braun, also known as Carol Kilbane, was to be a prosecution witness in the first-degree murder trial of defendants Owen J. Kilbane, Martin A. Kilbane and Robert L. Steele. When appellee was called to testify, each of those defendants objected, claiming that she was the common-law wife of Owen Kilbane and thus was not competent to testify pursuant to R.C. 2945.42. The trial court, in response to this claim, conducted a hearing on the relationship between appellee and Owen Kilbane. After three days of hearings in which fourteen witnesses testified and numerous exhibits were introduced, the court ruled that a common-law marriage did not exist and that appellee was therefore competent to testify.

At the conclusion of this hearing appellee was again called to testify. Appellee was present within the courtroom but refused through her counsel to take the stand, to be sworn, or to testify. The court thereupon found her guilty of contempt and imposed a sentence of six months in the county jail. Appellee's sentence was conditional in the sense that she could obtain her release should she testify prior to the time the trial concluded.

A timely appeal was filed with the Court of Appeals for Cuyahoga County and a motion was made to stay execution of sentence and to admit appellee to bail pending appeal. The motion was granted and she was admitted to bail after having served 33 days of the sentence for contempt. The Court of Appeals in reviewing the contempt sentence held that the trial court exceeded its statutory powers to punish for contempt, concluding that R.C. Chapter 2705 limited the contempt sentence in this instance to 23 days. ¹ The trial court's judgment was therefore modified and appellee was ordered discharged.

The cause is now before this court upon the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and George J. Sadd, Asst. Pros. Atty., for appellant.

Thomas M. Shaughnessy, Cleveland, for appellee.

PAUL W. BROWN, Justice.

The sole issue raised in this appeal is the propriety of the sanction imposed upon appellee for her contemptuous conduct. To resolve this issue the contempt must be reviewed on two levels. Cincinnati v. Cincinnati District Council 51 (1973), 35 Ohio St.2d 197, 299 N.E.2d 686, certiorari denied (1974), 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 892. First, appellee's conduct must be examined to see if it constituted a direct or indirect contempt. Second, the trial court's treatment of this matter must be analyzed to ascertain whether appellee was dealt with under that court's civil or criminal contempt powers.

The trial judge in this cause summarily found appellee in contempt without specifying under what authority he acted. The Court of Appeals found that appellee's refusal to come forward and testify constituted indirect contempt in specific violation of R.C. 2705.02(C). ² The Court of Appeals further concluded that the sentence imposed by the trial judge exceeded his statutory authority by virtue of R.C. Chapter 2705, which limits the sanctions that may be imposed for indirect contempts. ³

The Court of Appeals' resolution of this matter, however is erroneous because it is based on the mistaken premise that the trial judge found appellee in indirect contempt. The trial judge did not follow the procedures established for such contempts committed outside the court's presence but dealt with the recalcitrant witness summarily ⁴ under his direct contempt powers codified in R.C. 2705.01. Such a finding of direct contempt was well within R.C. 2705.01, which permits summary punishment of "a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice." Appellee's conduct fell squarely within this provision, as she refused to testify in open court in the immediate view of the judge after being fully apprised of the consequences of such conduct. This was a blatant obstruction of justice.

This court has previously held that, "the fact that Section 2705.02, Revised Code, inferentially classifies an act of resistance to a lawful court process or order as an act of indirect contempt does not limit the power of a court to determine, in its sound discretion, whether such an act constitutes direct or indirect contempt." State v. Local Union 5760 (1961), 172 Ohio St. 75, at page 81, 173 N.E.2d 331, at page 337. In the instant cause, the trial court properly dealt with appellee's conduct under its direct contempt powers. Since a direct contempt was involved the limits placed on contempt sanctions by R.C. Chapter 2705 are inapplicable. Myers v. State (1889), 46 Ohio St. 473, 22 N.E. 43; In re Roberts (1963), 175 Ohio St. 123, 191 N.E.2d 816. The trial court's imposition of a direct contempt sanction was thus valid in this respect.

Distinctions must not only be made between direct and indirect contempt, but also between criminal and civil contempt proceedings and sentences. This court has noted this distinction stating:

"Although there has never been a clear line of demarcation between criminal and civil contempts, it is usually said that offenses against the dignity or process of the court are criminal contempts, whereas violations which are on their surface offenses against the party for whose benefit the order was made are civil contempts. O'Brien v. People ex rel., 216 Ill. 354, 368, 75 N.E. 198, 108 Am.St.Rep. 219. Sentences for criminal contempt are punitive in nature and are designed to vindicate the authority of the court. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797; United States v. United Mine Workers of America, 330 U.S. 258, 302, 67 S.Ct. 677, 91 L.Ed. 884. On the other hand, the purpose of sanctions in a case of civil contempt is to coerce the contemnor in order to obtain compliance with the lawful orders of the court." State v. Local Union 5760, supra, 172 Ohio St. at pages 82-83, 173 N.E.2d at page 338.

The most important consequences arising from this classification of contempts is that many of the significant constitutional safeguards required in criminal trials are also required in criminal contempt proceedings. See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, at pages 241-242. These safeguards were not involved in the instant cause, however because the direct contempt was dealt with summarily by the trial judge. United States v. Wilson (1975), 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed. 186. A further consequence of the distinction made between criminal and civil contempts arises in the sentencing context and is relevant herein.

In this cause the trial judge sought to impose a contempt sanction that punished appellee for her failure to testify. The sentence was also coercive in another sense, because it allowed appellee to purge herself of the contempt by testifying prior to the conclusion of the trial. The sanction thus had a dual purpose of vindicating the court's authority, yet also encouraging the contemnor to testify.

Some jurisdictions do not permit the imposition of a contempt sanction with such a dual purpose. E. g., Minnesota State Bar Assn. v. Divorce Assistance Assn. (1976), 311 Minn. 276, 248 N.W.2d 733; Sword v. Sword (1976), 399 Mich. 367, 249 N.W.2d 88. Under this approach any conditional contempt sanction is automatically classified as civil in nature. It is an established principle that coercive imprisonment for civil contempt may last only as long as compliance with the court order is possible. Shillitani v. United States (1966), 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622. Thus, recalcitrant witnesses may be sentenced for civil contempts for only as long as the trial continues or for the duration of a grand jury term. After that time the witness can no longer comply with the court's order and the sanction can no longer serve its purpose of coercion.

We, however, reject an approach that labels any conditional contempt as civil. We believe that the appropriate standard for appellate review of contempt sentences is the test set forth in Shillitani, supra. The inquiry to be made under this test is "what does the court primarily seek to accomplish by imposing sentence?" Shillitani, at page 370, 86 S.Ct. at page 1535. In cases, such as the one now before this court, a review of the entire record must be made to...