dissenting:
I agree with the majority that the preferred procedure for defense counsel to have followed in this case would have been to advise the court, in advance of the trial, that he would not have the defendant seated at the counsel table. Nevertheless, despite counsel’s belated revelation to the court, I would not find that the evidence supported a conviction of direct criminal contempt. Thus, I must respectfully dissent.
In this case, the record does not contain any court rule which required the defendant to be seated at the counsel table. Likewise, the record does not indicate any direct misrepresentation or misidentification by the defense attorney, either of the defendant or of the other person seated at the counsel table.
As the majority observe, to establish direct criminal contempt requires proof of conduct in the presence of a judge that is calculated either to embarrass, hinder, or obstruct the court in its administration of justice or to derogate from the court’s authority or dignity or to bring the administration of law into disrepute. (People v. L.A.S. (1986), 111 Ill. 2d 539, 543; People v. Miller (1972), 51 Ill. 2d 76, 78; People v. Toomin (1974), 18 Ill. App. 3d 824, 826.) I do not condone counsel’s failure to give advance notice to the court. Nevertheless, even when construing the evidence in this case to favor the prosecution, I do not find evidence from which a rational trier of fact could find beyond a reasonable doubt (see People v. Penson (1990), 197 Ill. App. 3d 941, 944) that, as judged from the court’s immediate knowledge, counsel’s intent was to embarrass, hinder, derogate, or obstruct the court in its administration of justice. See L.A.S., 111 Ill. 2d at 543.
The courts of this State clearly attach significance to courtroom identification of a criminal defendant. They frequently, for example, cite to an in-court identification as support for the existence of sufficient evidence to convict. (See People v. Ocasio (1990), 205 Ill. App. 3d 157, 163; People v. Zambrano (1989), 188 Ill. App. 3d 432, 440.) In an atmosphere where a criminal defendant may be convicted with reference to the strength of his identification in court, courtroom identifications must likewise include protections against taint.
Our supreme court recently has recognized the importance of an in-court identification. There, the court found no error in the trial court’s decision not to hold a hearing on suppression of an in-court identification because the identification’s reliability was supported by an unchallenged, independent basis. (People v. Morgan (1991), 142 Ill. 2d 410, 459.) Given the influence of in-court identifications, and the possibility that an arguably otherwise unreliable identification will be tainted by the defendant’s placement at the counsel table, defense counsel’s good-faith representation of his client should include freedom to assure that the in-court identification of a defendant is, in fact, based on the recognition of the defendant by the witness and is not merely because the witness knows where the defendant will be placed in the courtroom.
Here, with his prompt post-identification revelation to the court, counsel revealed his respect for the court’s role as administrator of the law and negated any suggestion of an intent to embarrass, hinder, or obstruct. I do not find that the record supports a finding other than that counsel’s action here was one taken in the interest of his client, in good faith, and with respect for the court. (See People v. Kuelper (1977), 46 Ill. App. 3d 420, 423.) Consequently, I would reverse the conviction.