APPEAL from the Circuit Court of De Kalb County; the Hon.
THOMAS F. CLIFFE, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Defendant-Appellant, Edward H. Collins, appeals from an order finding him in direct criminal contempt of court and sentencing him to 180 days in the De Kalb county jail.
A report of proceedings was prepared pursuant to Supreme Court Rule 323(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 323). According to that report when the circuit court of De Kalb county was called to order at 9 a.m. on April 20, 1976, defendant was seated in the second row of the courtroom without any clothing; his clothes were strewed on the floor by his feet. At this time there were approximately 100 people in the courtroom. After the judge took his place on the bench he ordered defendant removed from the courtroom.
Sometime between 10:30 a.m. and 11 a.m. after the morning cases had been disposed of, defendant was brought back before the judge at which time the judge cited him for direct contempt of court and ordered that he be incarcerated in the county jail for a period of 180 days. The judge then signed the order which recited the basis of the contempt including eight separate findings of fact. Defendant was provided with a copy of the contempt citation and was immediately transferred to the county jail.
Defendant contends first that the summary contempt proceeding instituted against him violated his right to due process. In support thereof he argues that as he was immediately removed from the courtroom there was no need for the "immediate penal vindication of the dignity of the court"; that defendant's intent to obstruct the court proceedings was not within the judge's knowledge; and that defendant was not given an opportunity to explain his actions.
1, 2 While a defendant in any criminal case is entitled to certain due process rights, an exception exists in the cases of direct criminal contempt committed in open court in the presence of the trial judge where all of the essential elements of misconduct are seen by the trial judge and where immediate punishment is essential to prevent demoralization of the trial court's authority before the general public. (In re Oliver (1948), 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct. 499.) Direct contempt of court is defined as 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. People v. Wright (1977), 51 Ill. App.3d 990, 991, 367 N.E.2d 492, 493.
The contempt order reads in pertinent part:
"* * * 4) That as a direct result of this misbehavior by Edward Collins, various defendants and/or onlookers left the Courtroom. Further as a direct result of Edward Collins' wilful behavior aforesaid, laughter and other noises caused disorder in the Court and its administration of justice and further caused the Court to be embarrassed. * * *"
While defendant's removal prevented a continuation of the disturbance it was his initial act of appearing naked in the courtroom which caused the disturbance for which the contempt order and sentence were imposed. The delay between defendant's act and the entering of the contempt order was reasonable under the circumstances: The defendant had to be clothed, lest the disturbance continue and the judge, to restore order, proceeded to conduct the business of the court as usual.
Defendant argues that any intent on his part to obstruct the court was not within the judge's knowledge. However, our Illinois Supreme Court in a recent case held that intent in a criminal contempt proceedings may be inferred from proof of the surrounding circumstances and from the character of the action of the defendant. (See People ex rel. Kunce v. Hogan (1977), 67 Ill.2d 55, 364 N.E.2d 50.) Based upon defendant's conduct the trial court could properly infer that defendant possessed the requisite intent for a finding that he was in direct criminal contempt of court.
3 Next, defendant alleges that he was not afforded an opportunity to speak in explanation of the circumstances. The report of proceedings states in pertinent part:
"* * * the judge informed Mr. Collins that he had observed Mr. Collins' activity when Court was called to order and that this type of activity could not be permitted in open court. Mr. Collins at this time did not make any comment or request to make any comment. * * *"
From the state of the record we are unable to determine whether or not defendant was afforded an opportunity to speak on his own behalf: "The responsibility for the proper preservation of the record of proceedings * * * rests upon the defendant." (People v. Wilson (1975), 32 Ill. App.3d 57, 60, 335 N.E.2d 499, 501, rev'd on other grounds (1977), 66 Ill.2d 346, 362 N.E.2d 291.) The defendant here, having failed to carry that burden, has waived this contention on appeal.
Therefore, the summary proceedings were proper in the instant case and did not act to deprive defendant of any due process rights he was ...