APPEAL from the Circuit Court of Du Page County; the Hon.
THOMAS J. MORAN, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
The appellant, William A. Cain, an attorney at law, was adjudged guilty of direct contempt of court. A fine of $50.00 was ordered to be paid; upon failure to do so, he was to be incarcerated. The appellant paid the $50.00 fine and appeals.
On appeal, he claims that the order is void on its face and that a fair appraisal of his conduct would not justify the direct contempt order.
The appellant represented Kenneth Miller and Rosemarie, his wife, for offenses arising out of a traffic violation. Kenneth Miller was charged with improper lane usage, refusal to display his drivers license and resisting arrest. Rosemarie Miller was charged with disorderly conduct, resisting arrest and aggravated assault.
On the day of trial, prior to the selection of a jury and while in chambers, the defendant submitted a list of 26 persons whom he expected to call as character witnesses. The court advised him that only a reasonable number of character witnesses, "a half-dozen", would be allowed to testify. At this point, the transcript discloses the following:
"THE COURT: * * * The introduction of such a volume of witnesses, whose testimony obviously is going to be cumulative for the simple purpose of attempting to wear down everybody by the repetitious testimony of 26 people, will not be permitted by the Court, either on behalf of the State or on behalf of the defense.
Mr. CAIN: This is not available to the State, a character witness.
THE COURT: I am talking about cumulative testimony.
Mr. CAIN: I see. Well, then, Judge, I don't know how to proceed. I do not want to be held in contempt of Court, as your Honor told me."
The record discloses no previous reference relative to the defendant being held in contempt of court.
Later in the same conference, a discussion ensued pertaining to the questions to be asked on voir dire. The court instructed the defendant that it would not permit unlimited questioning of the jurors or questions relating to the law of the case. The following discourse occurred:
"THE COURT: * * * You don't go into the burden of proof and educate them (jurors) as to the law. That is my prerogative.
Mr. CAIN: Can't you do that in your opening interrogation and say if they have served on a civil jury, the proof is required by a preponderance of the evidence?
THE COURT: The Court will instruct them as to that at the proper time.
Mr. CAIN: You see, that is my problem. I would like to ask some of these questions. I don't want to be held in contempt, Judge.
THE COURT: What questions?
Mr. CAIN: Have they ever served
THE COURT: I just told you. You can ask them if they served on any jury prior to today, what kind; criminal or civil. Do they understand there is a difference in the quantum of proof that is required, and the Court will instruct them at the proper time. We hope they will pay attention until the end of the case before they make up their minds.
Mr. CAIN: But their minds might be influenced by the greater weight rule of the civil court while they are sitting and listening to the witnesses. Once it is fixed in their minds, you won't dislodge it in argument at the end.
THE COURT: That argument has no validity whatsoever.
Mr. CAIN: I just want it straight in the record.
THE COURT: That is the purpose in laying out the ground rules.
Mr. CAIN: I am going to be perfectly candid. Frankly, as I told you off the record before you frightened me where you mentioned possible contempt
THE COURT: I want everybody to behave themselves and conduct themselves properly and we will have no problem."
After a noon recess, the defendant moved for a change of venue. This was denied. As voir dire was about to commence, the defendant requested a hearing without the presence of the jury and on oral motion, challenged the entire venire because no negroes were included. This dialog took place:
"THE COURT: Counsel, the Court strenuously objects to the implication that you have cast upon the administration of the court system, the jury commission and the entire County of DuPage. Let me advise you that I expect you to adhere with every stage of the trial strictly to the law. This jury has been called in accordance with the law. The jury is proper. Your objection is overruled, and I want it understood for the record that I want you to proceed in a proper fashion at all times. Do I make myself clear?
Mr. CAIN: Your Honor, I will not be intimidated by the threat of contempt. I have never been held in contempt of 22 years of practice.
THE COURT: There is always a first time.
Mr. CAIN: Will the Court state whether or not there is a Negro present in that venire?
THE COURT: There is a proper array. If you know how to object to the array, fine. Do so. If you don't, may we proceed?
Mr. CAIN: I am objecting on the grounds there is no Negro present in that venire.
THE COURT: Your objection is overruled."
While interrogating prospective jurors, the defendant asked a panel of four the following:
"Mr. CAIN: * * * Mrs. Petrik, if God forbid you were on trial here and I was selecting a juror and that juror had the same state of mind as you have now, as far as being fair and impartial, would you tell me to select that juror?
Mr. NORGLE: Your Honor, I would like to raise an objection to the dramatic affect that counsel is trying to cause here by using expressions like God forbid if you were on trial.
THE COURT: The objection is sustained.
Mr. CAIN: I will agree to strike God."
The court did not interrupt the defendant during voir dire.
The defendant, admittedly, misquoted a portion of the State's opening statement and, upon objection, a hearing was had outside the presence of the jury. The defendant and the court engaged in a debate as to what may or may not be included in opening statements. Then this colloquy took place:
"THE COURT: * * * As I indicated to both of you gentlemen, I want this matter tried properly and a proper trial does not mean to give the jury a blow by blow description of what is going to be brought out in the way of evidence. It is to be done in a rather broad form so they merely understand what the entire situation is about; so that they can put in proper context the evidence as it is brought out when the witnesses testify.
Mr. CAIN: There is a charge here of resisting arrest. I think it perfectly competent to show not only was there resisting but a guy was pulled out of a car. The cop pulled the guy out of a car. I can't tell the jury that? Mr. Norgle told them that.
Mr. NORGLE: The basis for my objection was for not simply that statement. You were misquoting me.
Mr. CAIN: Do you know, it seems the only thief you have in DuPage County is a defense lawyer that is trying a criminal case. I have been ...