In re Criminal Contempt of Turner

2016 IL App (4th) 160245, 69 N.E.3d 895

• Court: Appellate Court of Illinois
• Decided: December 28, 2016
• Docket: 4-16-0245, 4-16-0284 cons.
• Status: Unpublished

Opinion

FILED

December 28, 2016

2016 IL App (4th) 160245

Carla Bender

4th District Appellate

NOS. 4-16-0245, 4-16-0284 cons. Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: The Matter Of, ) Appeal from THE CRIMINAL CONTEMPT OF: ) Circuit Court of ) Scott County SUSAN TURNER (No. 4-16-0245), ) No. 14CC1 Contemnor-Appellant. ) —————————————————————— ) In re: The Matter Of, ) No. 14CC2 THE CRIMINAL CONTEMPT OF: ) ) Honorable KAREN L. HUDSON (No. 4-16-0284), ) David R. Cherry, Contemnor-Appellant. ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Pope concurred in the judgment and opinion.

OPINION ¶1 In April 2014, contemnors, Susan Turner and Karen L. Hudson, attended a jury

trial involving concentrated animal feeding operations, an operation they opposed. During a

lunch recess, an attorney for one of the parties informed the trial court that he learned

contemnors were distributing material espousing the detriments of concentrated animal feeding

operations to members of the gallery. The court did not personally witness these acts. Following

the court’s investigation of members of the gallery and the jury, the court held contemnors in

direct criminal contempt of court for distributing prejudicial material within the courtroom. ¶2 Contemnors appeal, arguing that the trial court erred by finding them in direct

criminal contempt. Following oral arguments, we reversed the court’s order from the bench with

this written order to follow.

¶3 I. BACKGROUND

¶4 A. Factual Overview

¶5 In April 2014, a jury trial commenced in a civil proceeding involving

concentrated animal feeding operations (Scott County case No. 10-L-3). After the parties had

impaneled a jury, but prior to the presentation of evidence, the parties met in the trial judge’s

chambers. The defendant’s counsel informed the trial court that a “lady known to [the]

[p]laintiffs’ counsel” carried a box of books denigrating industrial animal factories into the

courtroom. During the proceedings, the material in question is interchangeably referred to as

books, booklets, pamphlets, and literature; for consistency’s sake, we will refer to the material as

books. According to the defendant’s counsel, he received a report during the lunch recess that the

woman distributed these books, which were prejudicial to the defendant, to people in the gallery

in the presence of the bailiff. The defendant’s counsel was concerned that the books would make

it into the possession of the jury. The court recalled seeing a woman with a box but did not

observe her distributing any material. The court then told the parties they would all investigate

the matter in the courtroom and later question the jury to see if they knew about the book. In the

meantime, the jury was sequestered in the deliberation room.

¶6 Upon returning to the courtroom, the trial court ordered everyone in the gallery to

remain in the courtroom due to a breach in security. The court then asked those sitting in the

gallery if they had any information about a person with a box of books who was passing out

-2­ those books to members of the audience. Eleven people raised their hands to indicate they had

observed the person.

¶7 Upon questioning, two people in the gallery recounted receiving a copy of a book

from a woman. Eventually, the contemnors were identified, and the trial court called for them to

approach the bench. The court asked Hudson whether she brought the books in the courtroom.

She admitted she brought them and distributed the material while court was not in session. The

court held Hudson in direct criminal contempt, stating, “You are here to influence a jury. That is

jury tampering. That is a felony.”

¶8 The trial court then asked Turner if she had distributed any books. She replied she

had not, but she had distributed her consulting card to a woman in the gallery. Upon further

questioning by the court, Turner also admitted passing out what appears from the record to have

been some type of pamphlet, not the books in question. The court then stated, “This is not the

proper venue for you to get on a soap box,” and found Turner in direct criminal contempt. The

court ordered contemnors taken into custody and told them they would be charged with jury

tampering and held until bond had been set. When Turner apologized, the court responded,

“Apologies don’t make it. When you come in and ruin almost 3, 4 years of work that these

attorneys have worked for, in an attempt to forward your personal agenda, you are using the

wrong forum.” The court again told Turner and Hudson they were in contempt and instructed

that they be held in jail until the court could get back to them.

¶9 After contemnors were taken into custody, the attorneys for both sides disavowed

any knowledge that contemnors intended to distribute any material. The trial court again noted it

saw one of the women carrying a sealed box but made no mention of seeing anyone distribute

-3­ any books. Likewise, the bailiff did not observe anyone passing out books or anything else. The

court stated, “This taints everything we stand for. And this deserves, this deserves prison.”

¶ 10 After calling the jury back into the courtroom for questioning, one juror disclosed

that he observed a woman passing out a book in the gallery, but he did not see its title or have

any contact with it after observing the woman hand it out. The trial court went on to ask if any

jurors recognized anyone sitting in the gallery. Multiple jurors indicated they knew people sitting

in the gallery. The court remarked to the jury, “You are a target now, you know. *** For you to

be improperly influenced by some outside source is hard enough to put up with all these lawyers,

but to be influenced or [for] somebody outside of this to try to influence you is criminal and, in

fact, it is a crime in Illinois to try to tamper with the jury.” The court later declared a mistrial.

¶ 11 The same day, while still in custody, Turner and Hudson again appeared before

the trial court. An attorney, Judy Koehler, was present and indicated to the court that Attorney

John Coonrod would be representing Turner and Hudson. Koehler indicated she knew Hudson

from when Koehler lived in the Peoria area. By invitation of the court, Koehler sat next to

contemnors. However, Koehler did not enter her appearance in the matter. The court never called

on Koehler to present evidence, argue, or make a recommendation, and Koehler did not attempt

to do so. Coonrod did not appear on that date.

¶ 12 The trial court told the women they had been held in direct criminal contempt for

performing an act “in front of the [c]ourt” and “in derogation of admonishments given to the

jurors, potential jurors, the jury pool[,] and the gallery not to talk about this case.” The court

again found the women in direct criminal contempt and fined them each $500, ordering them

held in custody until the fine had been paid. It provided no opportunity for the women to present

-4­ evidence or provide statements in allocution. Other than verifying the parties’ identities, the only

question the court asked was whether Hudson was a “Ms.” or “Mrs.”

¶ 13 The following day, the trial court entered a written order of contempt. The court

found no petition of allegations was required as the violation occurred in front of the judge. The

court also determined the women “admitted passing out the objectionable [books] during the

trial, apologized to the court for [their] actions, and indicated [they] did not know [they] could

not do so.” The court further noted, “There is no burden of proof required as the [c]ourt has

witnessed the violation which occurred in the courtroom during a trial.”

¶ 14 In June 2014, contemnors filed a motion to vacate the judgment of direct criminal

contempt, asserting (1) contemnors’ alleged misconduct did not occur in the physical presence of

the trial court or any of the parties, which resulted in the court improperly conducting an

investigation before reaching any conclusions; (2) the book in question was not recovered from

the courtroom; (3) nothing in the record demonstrated contemnors caused any disruption or

distraction from the proceedings; (4) no evidence suggested the jury had any knowledge of the

contents of any books distributed; (5) the court improperly interrogated contemnors by the use of

leading questions and not providing an opportunity to fully respond to any of its inquiries; and

(6) the court improperly refused to entertain contemnors’ apologies. Therefore, contemnors

requested the court vacate its contempt order because (1) the conduct did not occur before the

court as was necessary to sustain a finding of direct criminal contempt and (2) the court failed to

provide them with the constitutional safeguards necessary for a finding of indirect criminal

contempt.

¶ 15 In September 2014, the trial court held a hearing on contemnors’ motion to vacate

the contempt finding. Contemnors argued they were unaware they had broken any court rules

-5­ that would subject them to criminal-contempt proceedings, nor did the court witness their

conduct as necessary to find them in direct criminal contempt. Moreover, contemnors asserted

they were not provided any opportunity to allocute prior to the imposition of a sentence.

¶ 16 The trial court found contemnors were provided with the necessary hearing and

that their conduct occurred in front of the court. The court stated contemnors were provided with

an opportunity to make a statement prior to sanctions being imposed. The court took the matter

under advisement pending depositions by contemnors.

¶ 17 In January 2015, contemnors filed a supplemental motion to vacate the order of

direct criminal contempt following their depositions. The depositions demonstrated contemnors

were associated with a group that opposes concentrated animal feeding operations, such as hog

farms. In her deposition, Turner stated she attended the trial to observe the proceedings due to

her interest in the subject matter, and she had no intention of disrupting or interfering with the

trial. Turner stated she was unaware Hudson had brought any books into the courtroom, nor did

she see Hudson distribute any books. Turner further explained she had material in her purse,

which she distributed to three people prior to court proceedings. According to Turner, she was

unaware her conduct was prohibited.

¶ 18 In her deposition, Hudson admitted to bringing a box of books into the

courthouse. Hudson stated she placed the box in a corner so it was not visible. Prior to court

convening, she distributed two books to people she recognized as supporting her cause. Hudson

stated she was unaware she could not bring these books into the courtroom, and she did not

intend to disrupt or interfere with any court proceedings.

¶ 19 A supplemental motion filed with the depositions asserted that the trial court erred

by holding contemnors in direct criminal contempt because it did not witness the conduct

-6­ firsthand but learned of it through its own investigation. Further, contemnors argued that the

court erred by finding them in criminal contempt because there was no evidence their conduct

was calculated to impede, embarrass, or obstruct the court. Contemnors also alleged the court

denied them their fundamental constitutional rights with respect to contempt petitions.

¶ 20 Fourteen months later, in March 2016, the trial court entered a written order

denying contemnors’ motion to vacate the judgment of direct criminal contempt.

¶ 21 This appeal followed. We docketed Turner’s appeal as No. 4-16-0245 and

Hudson’s appeal as No. 4-16-0284. We have consolidated contemnors’ cases for review.

¶ 22 II. ANALYSIS

¶ 23 On appeal, contemnors assert the trial court erred by holding them in direct

criminal contempt.

¶ 24 When reviewing a finding of direct criminal contempt, we look to whether (1)

“there is sufficient evidence to support the finding of contempt,” and (2) “whether the judge

considered facts outside of the judge’s personal knowledge.” People v. Simac, 161 Ill. 2d 297,

306, 641 N.E.2d 416, 420 (1994). A finding of direct criminal contempt is “strictly restricted to

acts and facts seen and known by the court, and no matter resting upon opinions, conclusions,

presumptions or inferences should be considered.” (Internal quotation marks omitted.) Id. A

person may be found in direct criminal contempt for his or her actions under two circumstances.

The contemptuous acts must be (1) “personally observed by the judge,” or (2) “committed

outside the immediate physical presence of the judge but within an integral part of the court.”

People v. Hixson, 2012 IL App (4th) 100777, ¶ 12, 965 N.E.2d 447. We examine these two

circumstances individually.

-7­ ¶ 25 A. Personal Observation

¶ 26 In this case, none of contemnors’ acts were personally observed by the trial court.

Despite the court’s written order stating that the contemptuous acts occurred in the presence of

the court, the record rebuts this assertion. The court learned of contemnors’ alleged misconduct

during a lunch recess, when the defendant’s attorney spoke with the court in chambers about

information he received from another person about contemnors distributing books. Until that

point, the court had no knowledge of any inappropriate behavior, other than seeing Hudson

carrying a box into the courtroom earlier that morning. It was not until the court returned to the

courtroom and interrogated those sitting in the gallery that it received evidence of the alleged

contemptuous conduct. In People v. Tomashevsky, 48 Ill. 2d 559, 565-66, 273 N.E.2d 398, 402

(1971), the supreme court held a contemnor may not be held in direct criminal contempt for

laughing in open court in the actual presence of the court where the court had no personal

knowledge of the laughter. Here, while the conduct may have occurred in the courtroom, the trial

court did not personally observe the conduct. Thus, we are left to determine whether contemnors’

acts occurred within an integral part of the court that would support a finding of direct criminal

contempt. See Hixson, 2012 IL App (4th) 100777, ¶ 12, 965 N.E.2d 447.

¶ 27 B. Constructive Presence

¶ 28 Where a contemnor’s acts occur within an integral part of the court, those acts are

considered to have occurred in the “constructive presence of the court [and] may call for the

hearing of extrinsic evidence.” (Internal quotation marks omitted.) People v. Javaras, 51 Ill. 2d

296, 299, 281 N.E.2d 670, 672 (1972). The courtroom would certainly seem to constitute an

integral part of the court. Even so, in the event of direct criminal contempt based on the conduct

taking place within an integral part of the court, a contemnor is entitled to the same procedural

-8­ protections as a person charged with indirect criminal contempt. Hixson, 2012 IL App (4th)

100777, ¶ 14, 965 N.E.2d 447. In Hixson, this court set forth such procedural safeguards as

including:

“(1) notice of the nature of the contempt charges; (2) an opportunity to answer the

alleged charges; (3) right to a hearing; (4) the privilege against self-incrimination;

(5) the presumption of innocence; (6) the right to be proved guilty beyond a

reasonable doubt; (7) right to counsel (and to appointed counsel if indigent); (8)

right to confront and cross-examine witnesses; (9) right to be personally present at

trial; (10) right to testify or to remain silent; (11) right to compulsory process for

obtaining witnesses; and (12) right to present the testimony of witnesses favorable

to his or her defense." Id. ¶ 19 (citing In re Marriage of Betts, 200 Ill. App. 3d 26,

58-59, 558 N.E.2d 404, 425-26 (1990)).”

¶ 29 Thus, assuming, arguendo, contemnors’ acts occurred in the constructive

presence of the court, the trial court failed to provide contemnors with the necessary procedural

safeguards. Contemnors stood before the trial court on two occasions. On the first occasion,

which occurred immediately after the court found contemnors had improperly distributed

material, the court interrogated them without explaining any of their procedural rights, which

would include their (1) right to remain silent, (2) right to counsel, and (3) privilege against self-

incrimination. Contemnors were not even provided with notice that the court was considering the

imposition of direct criminal contempt prior to responding to the court’s leading questions.

¶ 30 On the second occasion, later that afternoon, contemnors received what the trial

court deemed a hearing. As noted, while an attorney was present, she did not act as counsel for

contemnors. The proceedings constituted less of a “hearing” and more of a lecture by the court.

-9­ The court stated it had already found contemnors in direct criminal contempt and explained they

would have an opportunity to speak at the sentencing phase. This opportunity never arose.

Because the court determined that the conduct occurred in front of the court, it found no further

procedural safeguards were required. In other words, contemnors were not provided an

opportunity to fully respond to the contempt charges or informed of their right to a hearing. The

court did not explain to contemnors their right to remain silent or to testify, their privilege

against self-incrimination, their right to confront and cross-examine witnesses and be found

guilty beyond a reasonable doubt, or the presumption of innocence. As a result, the court

provided no opportunity for contemnors to be heard or to present any testimony, particularly

regarding the willfulness of their behavior. In short, contemnors were not afforded their

procedural rights as required.

¶ 31 Accordingly, we vacate the trial court’s finding of direct criminal contempt.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, we vacate the judgment of the trial court.

¶ 34 Judgment vacated.

- 10 ­