In Re Neff , 20 Ohio App. 2d 213 ( 1969 )

1. I concur in the reversal of the first summary contempt finding and in voiding the sentence for it.

The kind and character of this particular incident was described by Judge Putman as follows:

"Roger Neff the court finds that when you testified before this court yesterday you conducted yourself directly in contempt of court by giving false and evasive answers respecting your location in and about the hallway outside this courtroom and it is the order of this court that you be committed to the Stark County Jail for a period of seven months, and"

This finding must be reversed, not because its proceedings lacked due process, not because it was indirect rather than direct contempt, but because Judge Putman, at the time the answers in question were given, had no judicial knowledge that they were false and evasive. The witness Jackson had not yet testified nor had the witnesses Beverly Douglas and Ralph Schreiber, the bailiff, all of whom gave testimony as to the location of the appellant in the hallway when the threat-and-bribe conversation was held.

False and evasive testimony, to be contempt, must be patent, about which there can be no difference of opinion. This particular summary contempt was based upon mere opinion. This is insufficient to support the summary finding. See Hegelaw v.State, 24 Ohio App. 103; and Fawick Airflex Co. v. U. E. R. M.Wkrs., 87 Ohio App. 371, 380-387.

2. I would affirm the other or second finding of summary contempt, but modify its sentence.

The other separate opinion states that "The first time Roger Neff could know that contempt proceedings were being conducted against him was immediately before sentence" and that he was denied his right to cross-examine witnesses and to present a defense.

On the contrary, reasonable notice to the defendant affirmatively appears from the record to have been given the afternoon before and the first thing the following morning before evidence was presented on behalf of the defendant.

Furthermore, there was an overnight postponement of the court's inquiry into his conduct, and the following morning the main witness, Jackson, testified and was cross-examined, after which Neff adduced, through counsel, affirmative testimony in his defense.

The hearing began at 3 p. m. on Monday, April 15, 1968, and after the testimony of Roger Neff, Beverly Douglas and Ralph Schreiber, the bailiff, the proceedings were recessed overnight. Before this recess and in the presence of the defendant, Neff, the nature of the proceedings were expressly stated:

"The Court: All right.

"Mr. Mestel: I have nothing further, your Honor.

"Mr. Ross: I have no questions.

"The Court: All right anything further?

"Mr. Mestel: May it please the court, the witness Mr. Jackson has been sent home due to the circumstances surrounding the matter which we are now inquiring in and due to his condition as a result of that matter. For the record the court was immediately informed of this incident within a very few minutes after the incident took place and the court was informed not only by the assistant prosecutor but also by the witness himself, Mr. Jackson, and the prosecutor feels that due to the seriousness of these circumstances and due to the fact that the presence of the court has to be protected from incidents of this sort from reoccurrence, that a witness must be protected above all else and be free to give their testimony and

"The Court: Don't argue it. If you are making a motion, make it.

"Mr. Mestel: The prosecutor's office would move, or would ask the court for direction in handling this matter and in protecting the victim and the witness George Jackson from any harm.

"The Court: Of course, the problem the court has there is no evidence from George Jackson in the record. You sent him home.

"Mr. Ross: I would like to move the court to have George Jackson incarcerated then there won't be any problem.

"The Court: It is the order of the court that George Jackson forthwith be brought before this court. It was my understanding that you were going to keep him in the prosecutor's office. I didn't know you were going to send him home and have the court waiting.

"It is the order of the court that this man be immediately apprehended and brought before this court and do you have anything further on this matter?

"Mr. Mestel: I have nothing further at this time on this matter. It is quite possible that Mr. Jackson can be located very quickly."

The following morning Jackson testified and was cross-examined by attorney Ralph W. Ross.

Here the record shows a second express statement of the nature of the charge and the nature of the proceedings. This was followed immediately by presentation of evidence on Neff's behalf:

"Mr. Ross: That is all.

"The Court: Anyone else care to inquire? All right, sir, you may stand down.

"Do you have anything further to present?

"Mr. Mestel: At this time the state has nothing further.

"Mr. Ross: I would like to present something, your Honor. Will Mr. Ciracci be called to this court and testify?

"The Court: Do you understand that he is available?

"Mr. Mestel: Yes, your Honor, Mr. Ciracci is available.

"Discussion at the bench between the court and counsel off the record.

"The Court: I think it might be helpful before the witness gets here and so everyone understands what is in the court's mind. The witness Jackson has been cross-examined by Mr. Ross with respect to the matter that the court considered tending to go to the credibility of the witness and he has laid the foundation by the standard methods and I assume now he wants to offer affirmative evidence on the elicited denial from the witness.

"The main inquiry goes to whether the conduct was in the presence of or so near to the court as to obstruct the administration of justice and the credibility of the witness is in issue.

"LOUIS CIRACCI, called as a witness, being first duly sworn by the court, testified as follows:

"Direct examination by Mr. Ross"

At the conclusion of this evidence presented through counsel on Neff's behalf, the court inquired:

"The Court: Is there any officer of the court who cares to inquire of this witness, keeping the inquiry relevant to whether or not Roger Neff did in the presence of the court conduct himself in contempt of the court or so near to the court that tended to obstruct justice. Does anyone else care to inquire? All right, sir, you may stand down. Anything further, Mr. Ross?

"Mr. Ross: I have nothing further.

"The Court: Any other officers of the court have anything further?"

There was no request for more time for any purpose.

The gist of the other separate opinion is that the defendant was not afforded due process of law.

It is my opinion that the court's inquiry is not bound by common-law or statutory rules of evidence or by technical or formal rules of procedure.

Since the summary contempt power of the court is inherent and not dependent upon express constitutional grant, due process of law is rendered so long as this defendant was afforded a reasonable opportunity for a fair hearing.

Neff, the defendant, took advantage of such an opportunity by allowing attorney Ralph Ross to cross-examine Jackson for him and by allowing him to offer the testimony of another witness, Ciracci, on his behalf.

Judge Putman described the kind and character of this finding thus:

"The court further finds that you conducted yourself in such a way yesterday with respect to the witness George Jackson that tended to obstruct justice and you are ordered by this court to spend eleven months in the Stark County jail for this contempt of court. I hereby order the sheriff to take Roger Neff forthwith to the Stark County jail. Forthwith means right now."

In my opinion, the court, having the inherent power to summarily find and punish contempt (Hale v. State, 55 Ohio St. 210, 60 Am. St. Rep. 691, 36 L.R.A. 254) and by the same token to determine its kind and character (State, ex rel. Turner, v.Albin, 118 Ohio St. 527) and consequently the power to determine, within its sound discretion, whether an act constitutes direct contempt under Section 2705.01, Revised Code, or indirect contempt under Section 2705.02, Revised Code (State v. Local Union 5760, 172 Ohio St. 75 at page 81), did not abuse its discretion in determining that the acts of the defendant constituted direct summary contempt.

It is necessary to set forth what actually happened. Each contempt finding must stand or fall upon its own facts and circumstances.

The record speaks that:

On the afternoon of April 14, 1968, the Honorable Norman J. Putman, Common Pleas Judge, was presiding over a jury trial in the criminal case of State v. DiGiantonio. DiGiantonio was charged with breaking and entering and grand larceny. One George Jackson had been jointly indicted with DiGiantonio and had previously pled guilty. Jackson was waiting in the hallway just outside the courtroom, under subpoena to be a witness for the state and against DiGiantonio.

Immediately after Jackson testified, he reported to the prosecuting attorney's office about an incident that had happened in the hallway of the courtroom just before he took the stand. The assistant prosecuting attorney, together with the witness, Jackson, immediately reported the incident to the court. Judge Putman, in the absence of the DiGiantonio jury, conducted an inquiry in which the defendant, Roger Neff, was directed to take the stand and be sworn. He testified, in part, as follows:

"Q. Do you know George Jackson? A. I have seen him in the courtroom this morning.

"Q. Have you spoken to him today? A. No, sir.

"Mr. Mestel: Excuse me?

"Q. Have you spoken to him today? A. Yes, sir.

"Q. When? A. During the trial here, or during —

"Q. While the court was in session? A. The only thing I saidto him was `yes.' He said to me, `It's a nice day today,' and I said, `yes.'

"Q. And this conversation takes place while the court is insession? A. Yes.

"Q. You left the courtroom? A. To get a drink.

"Q. Where did you see this George Jackson? A. Standing out there.

"Q. In fact he was sitting down on the bench at the end of the hallway, isn't that true? A. Yes, I walked down that way.

"Q. The drinking fountain is right outside the door, isn't it? A. Yes.

"Q. But you walked down to where George Jackson was sitting on the bench? A. I walked down to where he was and then turned and came back.

"Q. Did you sit down on the bench? A. No, sir.

"Q. Did you say anything to him? A. No, sir.

"Q. Did he say anything to you? A. No, sir.

"Q. I thought you said he said something to you about a nice day? A. He walked up here to get a drink and I walked also and we were standing looking out the window and he said `It's a nice day today.'

"Q. Did you see anybody else there? A. A young lady.

"Q. And she was sitting on the bench? A. Yes.

"Q. Where was she sitting in relation to where George Jackson was sitting? A. Next to him.

"Q. You didn't sit down on that bench? A. No, sir.

"Q. Did you threaten George Jackson? A. Threaten him? No, Ididn't.

"Q. Did you offer George Jackson anything if he would come inhere and not testify? A. No, sir.

"Q. Did you tell Mr. Jackson that something could happen tohis wife and children if he came in here to testify? A. No,sir.

"Q. Did you tell Mr. Jackson that Mr. DiGiantonio would see to it that he was taken care of if he testified? A. No, sir, I didn't.

"Q. You at no time sat down on the bench beside him? A. No, I walked down the hall and came back and got a drink and he walked up too and he said, `It's a nice day today' and I said, `yes.'

"The Court: Wait a minute. The question was did you at any time sit down beside George Jackson on the bench?

"A. I might have. I was not paying such attention. I walked down the hall —

"The Court: Did you or did you not sit down beside George Jackson on the bench?

"A. If I say down it was not beside him. I don't know I might have, I am not sure." (Emphasis added.)

Another witness, Beverly Douglas, testified as follows:

"Q. And since 1:00 o'clock where have you been located in the Stark County Courthouse? A. Outside in the hallway.

"Q. Where outside in the hallway? A. Outside of the court.

"Q. You mean outside of the courtroom? A. Right.

"Q. Is that the courtroom where it is marked on the door Judge Quinn's court? A. Right.

"Q. And there is a long bench out there? A. Uh huh.

"Q. Where were you sitting in proximity to the bench? A. Iwas sitting in the chair beside the bench.

"Q. And is that chair located before you get to the bench going down the hallway? A. That's right.

"Q. While you were sitting out there, was anyone sitting onthe bench that you recall? A. Two boys.

"Q. Let me ask you this. Did the two boys arrive at the bench together? A. I believe so.

"Q. Had you seen the one boy at the bench previously? A. No.

"Q. Had you seen the one boy previous to seeing the other or did you see them both together? A. I seen them both together.

"Q. And what were they doing? A. They were just talking.

"Q. While they were sitting on the bench? A. Yes.

"Q. How long did they sit there? A. 5 or 10 minutes maybe,not long.

"Q. And you say that you observed them to be talking? A.Yes.

"Q. Could you hear anything being said? A. No, I heard nothing." (Emphasis added.)

Another witness, Ralph Schreiber, Judge Putman's bailiff, testified as follows:

"Q. Mr. Schreiber, do you recall having been asked to call the witness George Jackson to the stand? A. Yes, sir.

"Q. And do you recall where you located the witness George Jackson? A. He was in the hallway, I believe, seated on thebench down at the front of the court administrator's office.

"Q. Did you personally go out to call him? A. Yes, I did.

"Q. Was anyone seated with him on that bench? A. I don't recall. I don't remember that anyone was seated with him at that time.

"Q. This is when you went out to call him? A. Yes.

"Q. Prior to officially calling him did you see him seatedwith anybody? A. Yes, sir.

"Q. Do you see that individual in the courtroom who was sitting on the bench with George Jackson? A. Yes, sir.

"Q. Point him out please. A. The gentleman in the blue suit and the red hair.

"Q. Approximately when did you see —

"The Court: Let the record show that the witness pointed to the man who previously identified himself as Roger Neff." (Emphasis added.)

The record further shows that the assistant prosecuting attorney stated for the record:

"Mr. Mestel: * * * For the record the court was immediately informed of this incident within a very few minutes after the incident took place and the court was informed not only by the assistant prosecutor but also by the witness himself, * * *." (Emphasis added.)

The record also shows that the witness, Jackson, had been sent home and was not available to testify on that afternoon. The record indicates that the DiGiantonio jury trial was thus interrupted and did not proceed until after Jackson had testified about the hallway incident the following morning.

When court opened on the following morning, April 15, at 9:15 a. m., Jackson was called and testified as follows:

"Q. Mr. Jackson, you testified yesterday in this court, is that correct? A. Yes.

"Q. Where were you required to wait before entering this court for the purpose of testifying? A. In the corridor, outside the door there.

"Q. Where specifically in the corridor were you? A. I was sitting along on the bench there and there is one chair beside it.

"Q. Did any unusual occurence take place while you were sitting there on the bench in the corridor? A. Yes.

"Q. Tell the court what happened. A. I was sitting out there reading a book and I don't know the name — but the gentleman sitting right there and between Mr. Chlebeck and I don't know the other gentleman with glasses — the gentleman sitting there with the blue tie and off-blue suit —

"Mr. Mestel: Red haired?

"A. Red haired.

"Mr. Mestel: Let the record show that he identified —

"The Court: He pointed out a man who was identified previously as being Roger Neff.

"Mr. Mestel: Go on.

"A. To put it in words, he said if I testified against GeorgeDiGiantonio that a few things might happen to me; and I said`Like what?' and then he started not to say anything. He said, `Well I can't talk in front of anyone.' There was a girl sitting right by in the chair. I don't know the girl's name that was sitting outside — she is sitting in the same place again. I wanted to know what he wanted to say so I got up and walked over and we were standing where it says `Witness Waiting Room' and I think he began telling me if I testified something might happento me and I said, `What you mean something might happen to me ormy family or what?' He said that, well, it can be arranged. And there was no one out there except for the girl at that time, so I didn't have no witness. I didn't know her as to what was going on. So I just went on and started talking to him. He said, `How much do you want? $500.00?' I asked him, `What did he think I was' and then he turns around and he says, `Well what's yourprice?' and so he walked over toward the door and Antonio was looking out the door and, well, I did like this [indicating] and Antonio nodded his head and this man told me, well, he would pay and not to get up there. And I waited a few minutes and then that man [indicating].

"Mr. Mestel: The bailiff?

"A. The bailiff come to the door and he called me at that time. * * *" (Emphasis added.)

This hallway incident was reported to the court by the assistant prosecuting attorney, a court officer. It was corroborated, in pertinent part, by the court's bailiff. It was also reported to the court by the witness Jackson, who, being under subpoena, was a vital part of the court proceedings. Inherent summary contempt power includes the power to make an inquiry. This was done and this is all that was done.

The record shows, by clear and convincing evidence, contumacious acts of misbehavior by the defendant of such gravity as to interfere with the administration of justice and to warrant summary punishment.

A serious felony trial was interrupted. This caused an overnight postponement which in itself is an interference and an obstruction with the due administration of justice.

The defendant's threat-and-bribe conversation with the subpoenaed witness Jackson was intended and calculated to interfere with the due administration of justice. The court had the duty and responsibility, then and there, to be alert to protect the judicial process from being brought into disrepute and to act vigorously when confronted with such acts and conduct as defendant committed here.

No unjust, unfair, undue or unconstitutional advantage was taken of this defendant. He knew what the court's inquiry was all about. Without being specifically charged in writing, he denied having the threat-and-bribe conversation, or any conversation other than a side remark about the weather, "It's a nice day," with Jackson.

Furthermore, his testimony shows that he was a close personal friend of DiGiantonio and no stranger to criminal court procedures. There was an overnight postponement of the court's inquiry into his conduct. The following morning, Jackson testified, an attorney did cross-examine him, the principal witness against Neff, and examined a witness in Neff's defense.

As to the acts of the defendant, we see from the record that Jackson was in the hallway just outside the courtroom waiting in obedience to a subpoena served upon him to be called into the courtroom as a witness, when the defendant attempted to deter him from testifying as a witness for the state, by offering him money not to testify against DiGiantonio, and by threats of bodily harm if he did so testify.

We see, also, a terrified witness, going immediately to the prosecuting attorney's office and to the trial judge for protection. If this is not direct contempt of the gravest kind and character, then such is incapable of any reasonable definition.

In the early case of Savin, Petitioner, 131 U.S. 267, Mr. Justice Harlan, at pages 277 and 278, used these words:

"* * * If, while Flores was in the court-room, waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Goujon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have been personally cognizant at the time of what occurred. But if suchattempt and offer occurred in the hallway just outside of thecourt-room, or in the witness-room, where Flores was waiting, inobedience to the subpoena served upon him, or pursuant to the order of the court, to be called into the court-room as awitness, must it be said that such misbehavior was not in thepresence of the court? Clearly not." (Emphasis added.)

The case of In re Caruba, 139 N. J. Eq. 404, 51 A.2d 446, at page 422 of 139 N. J. Eq., a New Jersey Court of Chancery quotes from Fox's History of Contempt of Court, page 54, "it is a greatcontempt to terrify a witness that is to be examined." (Emphasis added.)

Of vital importance in this case is the question of what is meant by "in the presence of the court." We find in the case ofBeach v. Beach, 79 Ohio App. 397, at page 404, the Court of Appeals for Crawford County said:

"When they speak of `in the presence of the court,' the courts have universally held that it is more than the idea of physical propinquity.

"Neither place nor distance from the court determines whether the act complained of is done constructively in the presence of the court. However, if the act is of such character and is done under such circumstances that naturally its effect would be felt in the actual administration of justice, then the act is as much done in the court's presence as if the person doing the act were actually in the court's presence. * * *"

To further ring the bell of antiquity, we harken back toHale v. State, 55 Ohio St. 210, 60 Am. St. Rep. 691, 36 L.R.A. 254, wherein a summary finding and punishment for contempt was upheld where the accused had caused the removal of a witness from the county of his residence when such witness was under subpoena to attend the trial of a pending cause, even though such act was not done in the courtroom or in the physical presence of the court.

The issue in this case is whether the inherent power of a court summarily to inquire into and punish contempts committed in its presence or so near as to obstruct the administration of justice extends to cases of intimidating witnesses under subpoena during the hearing and waiting outside the courtroom door in a hallway immediately adjacent to the court when the court is in session.

It is claimed this power summarily to inquire and punish is limited to those acts of contempt which are done in such a way that the facts showing their existence are placed within the personal observation of the court.

It is necessary for a court to control not only the room occupied by the judge and in view of his eyes but also the adjacent hallways wherein the law compels summoned persons to await a call to testify.

Upon notice from an officer of the court that an awaiting witness has been intimidated, the maintenance of order requires an immediate and summary inquiry. This inquiry must be immediate and summary for the reason that the court has not seen the offense but it so near as to be actually in the court's presence and as to actually threaten the continuance of the then procedure.

If the court's power over persons it cannot literally see be so limited as to permit them to hover in the spaces adjacent to the courtroom, intimidating witnesses, then the court has lost the power to carry out the business of securing that liberty under law for which it is responsible.

If the court be powerless to act without first giving complex warnings and notice and time to prepare a defense, then the offender is surely free to remain in the hall to "evil-eye" the witness. And if an officer sees him intimidate or strike a waiting witness, he will be free on bond after such acts are formally charged to flount his immunity from the court's power before the witness he seeks to intimidate.

In effect the court would then confirm and enhance the power of the intimidator to work his will in spite of the processes of the law. Thus, the necessity summarily to inquire and punish is not only equal in such cases to those where the court has seen the offense, but greater.

As to the punishment or the penalty imposed, the gravity of the offense in this case calls for a penalty of at least 6 months in the county jail. Courts have inherent power to punish for direct contempt by imposing a penalty reasonably commensurate with the gravity of the offense. See paragraph two of the syllabus of the case of State, ex rel. Turner, v.Albin, 118 Ohio St. 527.

The gravity of the offense in this case is such that this defendant should be given a reasonable penalty and not go scot free. To give him more than six months is, in my opinion, to unduly emphasize the gravity. To give him less than six months is to unduly pamper him and his kind.

Therefore, I would modify the total penalty in this case from eleven months to six months.

In conclusion, I concur in the reversal and voiding of the seven months penalty imposed for giving false and evasive answers during the inquiry. But I would affirm the holding of direct contempt for the offense of the threat-and-bribe conversation and modify the penalty to six months.