dissenting:
I do not agree that placing an individual in the defendant’s customary place at counsel’s table, without more, is a sufficient basis from which to infer an intent to hinder or obstruct the administration of justice or impugn the integrity of the court. After a thorough review of the record, I believe that defense counsel was acting in good faith to protect his client from a suggestive in-court identification.
Criminal contempt is warranted for "conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.” (In re Estate of Melody (1969), 42 Ill. 2d 451, 452, quoted in People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 59-60.) The usual protections of procedural due process do not apply to direct criminal contempt, which is punishable without notice or hearing, because the acts occur in the very presence of the judge. (People v. Gholson (1952), 412 Ill. 294, 299.) While universally recognized as essential to the administration of justice, such power is susceptible to abuse and must be closely examined. (People v. Loughran (1954), 2 Ill. 2d 258, 263.) In particular, preserving the independence of the bar requires that a certain latitude be given to attorneys acting in good faith and on behalf of their clients. People v. Miller (1972), 51 Ill. 2d 76; see People v. Bertelle (1987), 164 Ill. App. 3d 831.
This court stated the principles regarding review of direct contempt orders in Miller, 51 Ill. 2d at 78:
"The general doctrine that a reviewing court will ordinarily sustain a proper ruling of a trial court even though the ground assigned for the ruling was erroneous does not apply in the review of direct contempt orders. Direct contempt is predicated upon specific misconduct which interferes with the orderly administration of justice, and therefore an order imposing punishment for direct contempt must state, or the record must show, the specific acts upon which it is based. Such an order must be sustained upon the ground on which it was imposed, or not at all, for otherwise a contempt judgment might be affirmed in a reviewing court upon the basis of conduct which the trial court had found inoffensive.”
Therefore, I examine the record and the judge’s detailed order to determine whether defense counsel’s conduct is sufficient to support a charge of contempt.
At trial, the judge made two findings regarding the basis for the contempt charge. The first finding occurred after defense counsel asked the judge to state for the record the reason for the contempt. The judge responded, "You have brought a person in here to sit next to you as defendant, to mislead the State’s Attorney and to mislead the police officer. That’s my finding.” (Emphasis added.) I am not aware of a duty imposed upon a defense attorney to assist an eyewitness or the State by providing a suggestive identification setting. In refusing to assist the State’s eyewitness, defense counsel’s conduct is not calculated to embarrass, hinder or obstruct the court. Instead, counsel- is merely requiring the State to prove its case. Thus, this finding is not sufficient to support the contempt charge.
On the trial record, the judge made a second statement to support his finding of direct criminal contempt. The judge stated, "You have not had a person sitting beside you that looked like your co-counsel or anyone that is an attorney from your office. And you have, I think, purposely done this to mislead the court.” Similarly, the majority also finds that defense counsel intended to deceive the court by placing Armanentos in the defendant’s customary place at counsel’s table.
A contemptuous state of mind can be inferred from an act calculated to embarrass or obstruct the court. (Hogan, 67 Ill. 2d at 59-61 (finding an attorney’s filing of a civil suit against the presiding judge in a criminal case before sentencing allows for a reasonable inference of contemptuous intent).) However, not every questionable act can give rise to such an inference, particularly where the conduct involves a defense counsel’s representation of a client. For example, in Miller, 51 Ill. 2d 76, this court reviewed a direct contempt order imposed against a defense attorney for sarcastic comments made during a trial. This court found that although counsel was "improperly sarcastic” and "overzealous,” his questionable conduct was committed in good-faith representation of his client and was therefore not contemptuous. Miller, 51 Ill. 2d at 79.
In determining whether the necessary contumacious intent can be inferred from a particular act, I agree with the majority that a reviewing court must look to the surrounding circumstances and the character of the action of the defendant. (Hogan, 67 Ill. 2d at 61.) My examination of the record reveals that defense counsel’s conduct was a good-faith attempt to protect his client from a suggestive in-court identification, and not an attempt to deceive or obstruct the court.
First, the surrounding circumstances show a good-faith reason to test the State’s ability to identify the defendant. The trial had been delayed by the State, the State had no complaining witness, and the entire case rested on the testimony of Officer LaMorte. In addition, Officer LaMorte testified that he had not taken defendant’s driver’s license at the scene of the accident. Second, the character of defense counsel’s conduct does not show disrespect for the court’s authority or an attempt to disrupt the proceedings. Defense counsel showed respect to the court during the entire trial. At no point did defense counsel address the court in an inappropriate manner, disobey an order, or disrupt the proceedings. Immediately after the misidentification, defense counsel placed Armanentos on the stand in order to disclose his identity. Given the unreliability of an identification based only upon the placement of defendant at counsel’s table, defense counsel acted in good faith and on behalf of his client. This is not conduct that evidences a contumacious design. Miller, 51 Ill. 2d 76.
The majority finds that defense counsel intended to deceive the court and such conduct is sufficient to support a charge of contempt. In support of this conclusion, the majority relies on defense counsel’s actions in telling the clerk that his defendant would not testify and the brief delay in alerting the court to the misidentification. However, my examination of the judge’s order and the record do not support drawing this conclusion.
The judge’s supplemental findings charge that defense counsel misrepresented to the court clerk that the person seated next to him was the defendant in the case. However, the record does not support a finding that any misrepresentation took place. The record discloses only that when witnesses were called to be sworn, the court clerk asked, "Is your defendant [going to be sworn]?” In reply, defense counsel answered, "No.” The judge’s findings state that "the obvious inference of this comment to the court and the clerk was that person was the defendant because witnesses were excluded.”
However, because of the dangers inherent in summary contempt, this court has repeatedly stated that "it should be exercised with utmost caution and 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.” (Emphasis added.) Loughran, 2 Ill. 2d at 263; see also People v. Jashunsky (1972), 51 Ill. 2d 220, 226; People v. Tavernier (1943), 384 Ill. 388, 392-93.
In addition, the finding is factually incorrect. The record shows that no motion to exclude witnesses was made at the beginning of the trial when the witnesses were called to be sworn. The motion to exclude witnesses was not made until the State rested. Where the record of the proceedings is in conflict with the contempt order, the record of the proceedings controls. (Jashunsky, 51 Ill. 2d at 227.) Even if made, the motion would not have applied to Armanentos, who would have only been called as a witness if he was misidentified as the defendant. Since the finding is based upon an inference and is factually incorrect, the finding cannot support the charge of contempt.
The supplemental findings also state that defense counsel’s conduct caused the trial court to make a false finding and that counsel’s silence in this circumstance misled the court. The majority also finds that defense counsel’s silence directly after the misidentification evinces a contumacious intent to deceive the court.
I disagree. The finding entered into the record was based upon the testimony of Officer LaMorte and the court’s own assumptions, not any misrepresentation by counsel. A defense attorney has no obligation to assist the State by alerting an identification witness as to defendant’s location. Although defense counsel did not alert Officer LaMorte to his misidentification by immediately disclosing defendant’s location, counsel did promptly place Armanentos on the stand after Officer LaMorte was excused to disclose his identity to the court. Defense counsel’s silence was brief and lasted only as long as necessary to protect his client. In light of the seriousness of allowing an identification based only upon defendant’s placement in the courtroom, defense counsel acted in good faith and on behalf of his client. Such conduct is insufficient to support a charge of contempt. Miller, 51 Ill. 2d at 79.
Under different circumstances, I agree that placing someone other than the defendant at counsel’s table could evidence the contemptuous intent necessary to support a contempt charge. The Thoreen case relied upon by the appellate court and the majority provides an example. (United States v. Thoreen (9th Cir. 1981), 653 F.2d 1332.) Thoreen involved the trial of a salmon fisherman for violating an injunction against salmon fishing. First, the character of the defense attorney’s conduct in Thoreen showed an intent to mislead the court. The defense attorney in Thoreen actually disguised the person seated in defendant’s place at counsel’s table by dressing him in outdoor clothing, including heavy shoes, a plaid shirt and a jacket-vest. Unlike the contemnor below, the defense attorney in Thoreen actually gestured to the imposter as though he were the defendant and conferred with him during the trial. CThoreen, 653 F.2d at 1336.) Second, there were no circumstances in Thoreen showing a need to test the reliability of the State’s identification, as identification was not in issue. (Thoreen, 653 F.2d at 1338.) In using a disguise where identification was not in issue and gesturing to the defendant as his client, the attorney in Thoreen was not acting in good-faith representation of his client but was engaging in conduct calculated to obstruct the administration of justice.
I recognize that several jurisdictions which have considered the issue require counsel to inform the court before testing an in-court identification by placing someone other than defendant at counsel’s table. (See, e.g., Thoreen, 653 F.2d 1332; Miskovsky v. State ex rel. Jones (Okla. Crim. App. 1978), 586 P.2d 1104.) I agree with the majority that there are a variety of better ways to protect a defendant from such suggestive in-court identifications, including in-court lineups or other experiments done with the court’s permission. The issue presented for review is not whether counsel made the best choice, but whether his specific conduct showed disregard for the court’s authority and the administration of justice. A review of the record shows defense counsel was respectful at all times. Counsel did not misrepresent the identity of defendant in any way and attempted in good faith to test the veracity of the State’s case. Under these facts, I believe counsel successfully charted a narrow pathway through a questionable course of conduct.
For the reasons stated, I would vacate the order finding defense counsel in direct criminal contempt of court. Therefore, I respectfully dissent.
JUSTICES HARRISON and McMORROW join in this dissent.