RUSSELL v. STATE

MILLER, Presiding Judge.

Charles M. Russell, an attorney, brings this appeal from his conviction for direct (criminal) contempt which occurred during his representation at trial of an accused criminal. Russell's summary conviction was based on an improper remark directed to the deputy prosecuting attorney in the presence of the trial judge and jury. He contends the court erred 1) in finding his conduct contemptuous; 2) in making a nunc pro tunc entry subsequent to his conviction which materially altered the grounds therefor (from merely uttering rude language to shouting it), thus denying him notice of the charges and an opportunity to respond, and 3) in failing to warn Russell his actions would be considered contemptuous. Because the record does not reveal his remarks constituted a gross violation of decency and decorum within the meaning of relevant case law or that they "disturbed" the business and proceedings of the trial court as prohibited by Ind. Code 34-4-7-1, we reverse.

The record of the proceedings on October 21, 1980 discloses the following colloquy during the course of trial and in the presence of the jury after Russell obtained a copy of a deposition from the deputy prosecutor's table:

Some two months later, on January 5, 1981, the trial judge overruled Russell's motion to reconsider the contempt conviction and entered the following change in her finding, which she denominated as a nunc pro tunc order:

On appeal, Russell persuasively maintains his statement to the deputy prosecutor was not sufficiently disruptive to sustain a conviction for criminal contempt as charged by the trial judge. The relevant statute, IC 34-4-7-1, defines criminal contempt as follows:

In addition, our Courts have held "[t]hese statutory definitions are not all-inclusive of what constitutes direct criminal contempt; they are merely legislative recognition of the court's inherent power to cite and punish for contempt." Skolnick v. State, (1979) Ind. App., 388 N.E.2d 1156, cert. denied, (1980) 445 U.S. 906, 100 S.Ct. 1085, 63 L.Ed.2d 323. Accord, McIntire v. State, (1967) 248 Ind. 142, 223 N.E.2d 347; LaGrange v. State, (1958) 238 Ind. 689, 153 N.E.2d 593. "To protect itself against gross violations of decency and decorum, it is a necessary incidental power of a Court." (Emphasis added.) McQueen v. State, (1979) Ind., 396 N.E.2d 903, 904, quoting Brown v. Brown, (1853) 4 Ind. 627, 628. Direct contempt means "conduct directly interfering with court proceedings while court is in session, including creation of noise or confusion, disrespectful conduct and refusing to take the witness stand in a trial." (Emphasis added.) LaGrange v. State, supra 238 Ind. at 694, 153 N.E.2d at 596.

In cases of direct contempt, a court on appeal will accept as true the statement entered of record by the lower court of the matter constituting the contempt, and cannot interfere "unless it clearly appears the judgment is wrong." Blankenbaker v. State, (1929) 201 Ind. 142, 153, 166 N.E. 265, 268. However, an appellate court "will examine the record, if necessary, to determine whether the acts alleged to be contemptuous do, in fact, constitute contempt." State ex rel. Stanton v. Murray, (1952) 231 Ind. 223, 235, 108 N.E.2d 251, 257. Accord, Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454.

In the instant case the trial judge alleged that for Russell "to utter the words `to shut up' to an officer of this court [opposing counsel] in the presence of the jury and in the presence of the Judge is a contemptuous act... ." The trial transcript, as quoted above and certified as correct by the trial judge, reveals Russell's specific remarks were "I will excuse you if you sit down and shut up."

We do not by any means condone the character of these remarks by Russell, made in response to the deputy prosecutor's assertion, "[e]xcuse me." We further do not believe, however, based on the transcript of the trial above quoted including the record of the contempt proceedings, that the alleged offensive language, if merely uttered, manifested either a disturbance in the "business and proceedings" of the trial court as defined by IC 34-4-7-1, supra, a direct interference with the same, LaGrange v. State, supra, or a gross violation of decency and decorum. McQueen v. State, supra.

In viewing the allegations which were made by the trial court we observe, as did the United States Supreme Court in Eaton v. City of Tulsa, (1974) 415 U.S. 697, 698, 94 S.Ct. 1228, 1229, 39 L.Ed.2d 693, quoting Holt v. Virginia, (1965) 381 U.S. 131, 136, 85 S.Ct. 1375, 1377, 14 L.Ed.2d 290: "`[i]t is not charged that [petitioner] here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties.'" The essence of the stated charge1 was that the words used by Russell were themselves contemptuous. Presumably, had Russell more politely asked the deputy prosecutor to refrain from interruptions, (a practice we feel is not uncommon) the contempt citation would not have been made.

In Eaton, where a conviction based on a "single isolated usage of street vernacular" in the course of a witness's testimony was reversed, the Supreme Court noted, "`the vehemence of the language used is not alone the measure of the power to punish for contempt. The fire which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice.'" Eaton v. City of Tulsa, supra 415 U.S. at 698, 94 S.Ct. at 1229, quoting Craig v. Harney, (1947) 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. "`Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.'" In re Little, (1972) 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, quoting Brown v. United States, (1958) 356 U.S. 148, 153, 78 S.Ct. 622, 625, 2 L.Ed.2d 589. In People v. Roberts, (1976) 42 Ill.App.3d 604, 356 N.E.2d 429, 431, the Illinois Appellate Court observes "In re Little [supra] draws a distinction between merely uttering a statement and doing so in a loud and boisterous manner," and in People v. Hanna, (1976) 37 Ill.App.3d 98, 345 N.E.2d 179, 180, the same court held a mere statement by a pro se defendant in court that "[t]his Court has messed up so much already it's pathetic" was not sufficient to sustain a contempt conviction as charged, even though the defendant had clearly been loud and boisterous a few minutes before uttering the remark.

In Grimm v. State, (1959) supra 240 Ind. at 128, 162 N.E.2d at 456, our own Supreme Court arrived at a conclusion similar to that in Eaton and In re Little, supra, which it expressed as follows:

In Grimm, the Court held an action for direct contempt would not lie against an attorney defending an accused criminal where the record merely revealed the trial judge told the attorney he and his client had failed to appear for an arraignment and the attorney then told his client several times in the presence of the judge, "that is not so; I was present." The attorney also told his client at various times the court would not enter a plea of not guilty for him, which statement the trial court determined to be a falsehood. Id. at 126, 162 N.E.2d at 455. Our Supreme Court concluded,

Id. at 129, 162 N.E.2d at 456.

We arrive at a similar determination in the case at bar. Without doubt, Russell's remark was unfortunate. We find nothing in the record, however, to reveal it impeded or disturbed the "administration of justice." Grimm v. State, supra. Though his manner of asking opposing counsel to refrain from interruption was ill-considered, we do not believe, based on the record, his remarks in that regard represented "gross violations of decency and decorum." McQueen v. State, supra. Nor was it alleged, for example, that Russell persisted in a course of behavior which previously had been disapproved by the court. See Luesse v. State, (1934) 206 Ind. 480, 190 N.E. 177; Dodge v. State, (1895) 140 Ind. 284, 39 N.E. 745. In so concluding, we do not necessarily adopt, however, the precise standard applied by federal courts which have held, pursuant to 18 U.S.C. § 401(1),2 that "mere disrespect or insult cannot be punished where it does not involve an actual and material obstruction," (emphasis added), In re Dellinger, (7th Cir.1972) 461 F.2d 389, 400, though we do believe, in the case of attorneys charged with contempt while engaged in vigorous argument, some recognition must be made that the "`heat of courtroom debate' may prompt statements which are ill-considered and might later be regretted." Id. See In re McConnell, (1962) 370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434, where the United States Supreme Court stated:

(In McConnell, the contempt conviction was reversed because "petitioner never did ask any more questions along the line which the judge had forbidden." Id.)

We merely hold that where, as here, the alleged contempt reflects nothing more egregious than an ill-advised response to opposing counsel's interruption to the effect that "I will excuse you if you sit down and shut up," the law of this State will not support the summary contempt conviction. Our own research yields no authority of this jurisdiction to the contrary, nor has the State directed our attention to any.

We further do not believe Russell's conviction may be sustained by virtue of the trial judge's nunc pro tunc amendment of its finding to the effect that Russell shouted "shut up" at the deputy prosecutor. It is true the manner of expression may itself make a remark contemptuous. In re Dellinger, supra at 400. However, as Russell observed, our courts have held that where, as here, there is no prior written note, minute or memorial reflecting the factual basis for a nunc pro tunc entry, such entry is improper and without effect. E.g., Huffman v. Huffman, (1981) Ind. App., 424 N.E.2d 456; State ex rel. Jackson v. Owen Circuit Court, (1974) 160 Ind.App. 685, 314 N.E.2d 73. A nunc pro tunc entry cannot be used to supply some ruling or order that was not, in fact, made. State ex rel. Jackson v. Owen Circuit Court, supra. We find the application of such rule of law to be particularly appropriate in the instant case in light of the language of Ind. Code 34-4-7-7, which provides in pertinent part:

We again refer to Grimm v. State, supra, where the trial court found various remarks challenging the court's truthfulness to be contemptuous. Later, "in order to aid the Supreme Court in case of appeal," the trial judge modified his original statement and finding to note the attorney's remarks were made in a "rude, insolent, and disrespectful manner." Id. at 126, 162 N.E.2d at 455. On appeal, our Supreme Court addressed this state of the record as follows:

Id. at 129, 162 N.E.2d at 457.

Accordingly, we conclude Russell's conviction cannot be sustained based on the trial judge's purported amendment of its finding, or upon other, unalleged contemptuous acts which may arguably have occurred during his verbal exchange with the deputy prosecuting attorney. See Eaton v. City of Tulsa, supra 415 U.S. at 699, 94 S.Ct. at 1230, where an intermediate appellate court upheld a conviction for "direct contempt" based on conduct not considered by the trial judge in his accusations, and the United States Supreme Court held, in reversing, "[t]he Court of Criminal Appeals thus denied petitioner constitutional due process in sustaining the conviction as a conviction upon a charge not made."

Since we conclude the trial court improperly found Russell's remarks, as charged, to be contemptuous, we need not consider Russell's further assertions of error.

Judgment reversed.

YOUNG, J., concurs.

CONOVER, J., dissents with opinion.

CONOVER, Judge, dissenting.

I respectfully dissent.

On appeal, we accept as true the statement entered of record by the lower court of the matter constituting the contempt, and also may examine the record, if necessary, to determine whether the acts alleged to be contemptuous do, in fact, constitute acts of contempt. State ex rel. Stanton v. Murray, (1952) 231 Ind. 223, 235, 108 N.E.2d 251, 257. From the record before us, it is easy to determine the nature of the contumacious conduct here involved.

The colloquy between attorney Russell and the deputy prosecutor, fully set forth in the majority's opinion, involved Russell's attempt to use the State's copy of a deposition. It is clearly apparent from the record this exchange between attorneys became more heated the longer it continued, ending in this manner:

The exchange had become so heated, Judge Gifford had to intervene, twice prompt Mr. Russell to sit down, and order the jury to retire. It is clear from this record the colloquy between Russell and Commons had disturbed the transaction of the court's business, namely, the jury trial in progress and constituted a direct contempt of court, cf. IC 34-4-7-1.2 The trial court in such circumstances not only has the right, it has the duty to intervene to preserve order.

It is true, Judge Gifford's choice of words as to Russell's contumacious conduct could have been more descriptive at the time.3 However, Judge Gifford's amendment seventy-five days later which changed the word "utter" to "shouting" did not constitute a material change in the grounds upon which Russell's contempt conviction had been based, it merely gave a more precise description of the contumacious conduct to present a clearer record on appeal. The change was made pursuant to Russell's filing of a motion to reconsider, and prior to her ruling on Russell's Belated Motion to Correct Errors. The change was made seventy-five days later, well within the time provided by statute during which it retained power and control over the contempt judgment, cf. IC 33-1-6-3. No written note or memorandum was required to make such change.

It has long been recognized in this state that the trial court has the inherent power to amend the record based on its own knowledge and recollection before rendition of the final judgment. Moerecke v. Branyan, (1915) 183 Ind. 591, 108 N.E. 948. Thereafter, the Indiana courts have traditionally possessed broad powers in "term time" to modify, set aside or vacate their judgments. Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745. See also 49 C.J.S. Judgments § 229, p. 436; Tri-City Electric Service Co. v. Jarvis, (1933) 206 Ind. 5, 185 N.E. 136; Livingston v. Livingston, (1921) 190 Ind. 223, 130 N.E. 122; Ryon, Receiver v. Thomas, (1885) 104 Ind. 59, 3 N.E. 653; Merrill v. Shirk, (1891) 128 Ind. 503, 28 N.E. 95.

Before terms of court were abolished in 1967, it was the general rule that "a court has full and complete control of the record of its proceedings during the term at which the proceedings are had, and during such term, for good cause, may correct, or vacate any of its judgments or orders made therein." State ex rel. Neal v. Superior Court of Marion County, Room No. 2, et al., (1930) 202 Ind. 456, 174 N.E. 732. When terms of court were abolished [T.R. 72(A)], the traditional power of a court over its record was limited to 90 days after judgment. Ind. Code 33-1-6-3. Courts now have the same power to act during the 90-day period following rendition of a judgment as they did during the former term time, including the power to amend the records to conform to the truth. State ex rel. Jackson v. Owen Circuit Court, (1974) 160 Ind.App. 685, 314 N.E.2d 73; Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d 849.

Although a writing to evidence a change in the record is required after the "term" time, it has historically not been a requirement during that time. The purpose of a writing is to protect against fraud and failing memories and to ensure an accurate basis for the entry. State ex rel. Jackson v. Owen Circuit Court, (1974) 160 Ind.App. 685, 314 N.E.2d 73. In this case, the amendment to the facts in the record was made 75 days after judgment. We can assume the trial court's memory of the incident had not dimmed in 75 days, and we have no reason to think the trial court intentionally misrepresented the facts to which it was a witness.

Moreover, the power of the court to modify its record and to grant relief from its own judgment is the foundation of most of our post-judgment trial rules. It is not coincidental that most of a trial court's powers over a record are lost when it rules on the motion to correct errors. Both Trial Rules 59 and 60 are indicative of the broad powers available to the trial court during the "term" period.

I do not think the law nor reason requires us to dismiss the court's clarification of the record. I believe the trial court could and should have amended its record to conform to the truth. It was not required to prove what it knew by introducing a contemporaneous writing. Such a rule is an erosion of long-standing and traditional powers of the court.

Judge Gifford's judgment on this subject matter is not clearly wrong, based upon the record before us. Thus, we cannot interfere on appeal. Blankenbaker v. State, (1929) 201 Ind. 142, 153, 166 N.E. 265, 268.

The trial court's modification merely clarified the original basis upon which Russell's conviction was based. A change or modification of a judgment to make it more explicit is proper. 17 I.L.E. (Judgments) ¶ 113, p. 228. Error may not be predicated upon the amendment of a pleading where a defendant's substantial rights are not prejudiced thereby. Henderson v. State, (1980) Ind., 403 N.E.2d 1088, 1093; 9 I.L.E. (Crim. Law) ¶ 883, p. 111.

In Grimm, the trial court charged the attorney's language accused the court of fraud. Its later amendment substantially altered the original finding by saying the attorney's statements were made "in a rude, insolent and disrespectful manner." Grimm v. State, (1959) 240 Ind. 125, 162 N.E.2d 454, 455. Of course, such a material change created a confused state of the record in that case. Such confusion is not here present.

Judge Gifford's modification did not prejudice Russell. It is clear from Russell's response to the finding of contempt he knew the precise reasons for that finding. Further, he filed his Petition for Leave and his Belated Motion to Correct Errors nine days after entry of the modification order. Thus, Russell was additionally provided with a concise statement of why he was found in contempt, as an assistance to him "in setting his course for an appeal." The modification also provided this court "with a clear statement of the allegedly contumacious conduct," upon which Russell had been convicted, cf. Skolnick v. State, (1979) Ind. App., 388 N.E.2d 1156, 1163-4, cert. den'd, (1980) 445 U.S. 906, 100 S.Ct. 1085, 63 L.Ed.2d 323.

The question of contempt should be considered in light of the amended record which has been certified to this court as complete and true by the trial judge. A boisterous colloquy between opposing counsel in court while a jury trial is in progress is obviously disruptive of the court's business, cf. People v. Hanna, (1976) 37 Ill.App.3d 98, 345 N.E.2d 179, 180. Based upon that record, I would affirm the trial court's judgment.