People v. Abdennabi ( 2007 )

No. 3--06--0052
Filed July 11, 2007.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) Nos. 05--TR--93728 &
) 05--TR--93729
)
SARUD Y. ABDENNABI, ) Honorable
) Michael J. Powers,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________
The defendant, Sarud Y. Abdennabi, was charged with speeding
(625 ILCS 5/11--601(b) (West 2004)) and operating an uninsured
vehicle (625 ILCS 5/3--707 (West 2004)). The circuit court held
the defendant in direct criminal contempt of court for presenting
a fraudulent insurance card in open court. On appeal, the
defendant argues that the circuit court erred when it found him
in direct criminal contempt without holding an evidentiary
hearing on the issue. We reverse.
The defendant first appeared on the charges on October 6,
2005. After the court asked him if he had proof of insurance,
the pro se defendant tendered an insurance card to the judge.
The judge noted that the card appeared suspicious, and he had the
bailiff call the insurance company listed on the card. The
bailiff reported that the company confirmed it was a fraudulent
card. The circuit court continued the matter so the defendant
could hire an attorney and return at a later date.
At the January 5, 2006, hearing, the court allowed defense
counsel to present a defense to the contempt charge. Defense
counsel argued that (1) the case law requires that there be a
showing of the defendant's mental state; and (2) because the
bailiff made the phone call, the judge did not have personal
knowledge of all of the facts necessary to find direct criminal
contempt. The court found that it was not reasonable to believe
that the defendant did not know the card was fraudulent, and that
he personally observed the operative facts of the incident.
Then, the court held the defendant in direct criminal contempt of
court.
The defendant's sole contention on appeal is that the
circuit court erred when it held him in direct criminal contempt
without holding an evidentiary hearing on the issue. The State
argues that, because the record lacks a report of proceedings
from October 6, 2005, and a bystander's report, the defendant has
provided an insufficient record to allow this court to do
anything other than affirm the circuit court's judgment.
The appellant has the duty to supply a sufficient record for
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review. People v. Johnson, 285 Ill. App. 3d 307, 674 N.E.2d 487
(1996). Despite the State's claim that the record is incomplete
without the transcript from October 6, 2005, we believe that the
transcript from January 5, 2006, constitutes a sufficient record
for us to decide the case. Indeed the defendant’s attorney made
it clear that he was using the January 2006 hearing to document
the proceedings of the earlier hearing. In essence, he was
creating a bystanders’ report on the record. Furthermore, based
on the record before us, requiring the appellant to submit a
bystander's report pursuant to Supreme Court Rule 323(c) (166
Ill. 2d R. 323(c)) would be pointless, as the January 2006
transcript clearly indicates that neither party nor the court
could recall if the defendant commented on whether he knew the
card was false when he presented it to the court. Consequently,
we find the record adequate and we will address the merits of the
defendant's argument.
ANALYSIS
"Direct criminal contempt is contemptuous conduct occurring
403 Ill. 320, 323-24, Direct contempt is
2 Ill. 2d 258, 262." People v. Simac, 161 Ill.
2d 297, 360, 641 N.E.2d 416, 420 (1994). Direct criminal
contempt is defined as conduct or actions that tend to directly
obstruct and prevent the administration of justice. People v.
Randall, 89 Ill. App. 3d 406, 411 N.E.2d 1017 (1980). "Direct
criminal contempt may be found and punished summarily because all
elements are before the court and, therefore, come within its own
immediate knowledge." Simac, 161 Ill. 2d at 306, 641 N.E.2d at
420. We review a finding of direct criminal contempt by
addressing whether the evidence was sufficient to support the
finding, and whether the judge considered facts outside of his
personal knowledge. Simac, 161 Ill. 2d at 306, 641 N.E.2d at
420.
Before a defendant can be found guilty of direct contempt
regarding, as here, a case of alleged false representation, it
must appear beyond a reasonable doubt from the personal knowledge
of the court or by admission from the lips of the defendant in
open court and from no other source that the representations were
untrue and that defendant knew they were untrue when they were
made. People v. Randall, 89 Ill. App. 3d at 414, 411 N.E. 2d at
1022 (1980).
In this case, the first problem is that the trial judge did
not know the proof of insurance document was fraudulent. He
suspected it might be and enlisted the assistance of the bailiff
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to confirm his suspicion. The bailiff reported that whomever he
had called said the card was fraudulent -- still leaving that
information outside the ambit of the judge’s personal knowledge.
Clearly, if an investigation is necessary to assess whether
direct criminal contempt has occurred, the element of personal
knowledge of all of the acts and facts has not been satisfied.
The second problem is that the court had no basis for making
the requisite finding that the defendant’s conduct was willful.
Simac, 161 Ill. 2d at 307, 641 N.E.2d at 421. In January 2006,
neither the court nor the prosecutor could say whether the
defendant stated on October 6, 2005, that he did not know the
card was fraudulent, the court stated, "I don't know
affirmatively one way or the other whether or not he made that
representation. I'm not going to say that he did because I don't
recall that and I don't have that written anywhere, so I'm not
going to make that representation that he said that." We find
nothing in this case to suggest that the defendant actually knew
the card was fraudulent and, without such evidence, the trial
court could not find the requisite intent to mislead the court.
In sum, the trial judge lacked personal knowledge that the
card was fraudulent; he relied on inference, opinion, or
presumption to intuit that it might be; he had someone else
investigate whether it was; and he apparently made no effort to
ascertain whether the defendant knew he had a fraudulent card.
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Thus, the circuit court found the defendant guilty of direct
criminal contempt without any showing that the defendant’s
alleged conduct was willful and had the effect of immediately
disrupting and disturbing the court’s business. Accordingly, the
evidence was insufficient to support the finding of defendant’s
guilt.
The judgment of the circuit court of Will County is
reversed.
Reversed.
CARTER, J., concurs.
JUSTICE SCHMIDT, specially concurring:
I concur in the result, but not in the entire analysis. I
believe that a reversal is warranted by what the majority
describes as "the first problem." I strongly disagree with the
majority's discussion of "the second problem." The majority
states, "We find nothing in this case to suggest that the
defendant actually knew the card was fraudulent and, without such
evidence, the trial court could not find the requisite intent to
mislead the court." Slip op. at 5. Apparently, the majority
would require a confession from defendant that he knew the card
was fraudulent in order to find intent to mislead the court. I
think most reasonable people would agree that it would be, at
best, highly improbable for someone to have a fraudulent
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insurance card in his wallet without knowing it was fraudulent.
Where do people get insurance cards? Answering my own rhetorical
question, I suggest that it is either directly from our insurance
agent or in an envelope mailed to us directly from our insurance
carrier, along with a statement and/or a declarations page. The
fact that the card is fraudulent can only lead to the rational
inference that defendant did not get the card either directly
from his insurance agent or mailed directly to him from his
insurance carrier. Had defendant pulled a Molotov cocktail out
of his coat, ignited a wick and thrown it at the judge, would the
court find direct criminal contempt inappropriate because there
was no evidence that defendant knew the bottle contained a
flammable liquid?
Of course he knew it was fraudulent, and of course he handed
it to the court representing it to be a valid insurance card,
satisfying the requirement that he intended to mislead the court.
The only problem in this case is that the proof that the card was
fraudulent came from outside the courtroom and, therefore, direct
criminal contempt was not the proper charge. The defendant
should have been charged with indirect criminal contempt as the
majority correctly points out.
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