Appeal from the Circuit Court of Cook County; the Hon.
Cornelius J. Houtsma, Jr., Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, defendant, Marvin Ziporyn, was convicted of indirect criminal contempt. The behavior deemed contemptuous occurred during a presentencing hearing when Ziporyn, a defense witness, after leaving the witness stand, walked over to prosecuting counsel and whispered a vile, obscene remark.
On appeal, defendant contends that (1) the trial court erred in finding his conduct contemptuous, (2) the trial court's imposition of a sentence of periodic imprisonment and probation was an abuse of discretion, and (3) he was denied a fair trial.
We reverse the decision of the trial court.
Following a jury trial for murder in the circuit court of Cook County, a presentencing hearing was held in the courtroom of Judge Richard L. Samuels to determine if Eunice Lyles, the convicted felon, would be sentenced to death. Defendant, Dr. Marvin Ziporyn, a psychiatrist, testified as an expert witness for the defense as to the mental condition of Eunice Lyles.
Defendant was cross-examined by Assistant State's Attorney Raymond Garza. Questioning by Garza was vigorous and aimed at impeaching defendant's credibility and character. Following this extensive and rather demeaning cross-examination, defendant stepped down from the witness stand. As he did so, the court called two of the trial attorneys before the bench. The attorneys proceeded to engage in an off-the-record discussion with the court.
During this time, defendant walked over to Garza, who was seated at the prosecution counsel's table, and attempted to gain his attention. When Garza declined to respond, defendant said in a whisper loud enough to be heard only by Garza and two spectators, "Garza, your mother sucks cock." This vile epithet was brought to the court's attention only when Garza jumped up, repeated the remark in a louder than conversational tone in front of the jury and all those present, and demanded that defendant be held in contempt of court.
In response to the aforementioned incident, the State filed a verified petition for contempt, alleging that defendant's conduct was an affront to the court and to the administration of justice. At the initial hearing on the petition and the State's motion for a rule to show cause, Judge Samuels, who had presided at the presentencing hearing, ordered the contempt cause transferred to the presiding judge instanter for reassignment in the interest of fairness to defendant. The contempt proceeding came on for hearing on August 13, 1982, before Judge Cornelius J. Houtsma, Jr.
The first witness for the State, Vadless Reese, a spectator and a relative of Lyle's victim, testified that she heard defendant make the remark to Garza although he made it in a tone of voice she characterized as a whisper. The State's second witness, Assistant State's Attorney Edward Cozzi, testified that he "plainly" heard defendant make the offending remark in a tone of voice he described as neither loud nor a whisper.
Garza then testified that defendant made the remark "loud enough so that only I, not the jurors who were near, could hear it." He stated that he did not know if any of the jurors heard the remark and that he did not ask any members of the jury if they had heard the remark. The State did not call any jurors present at the incident to testify as to whether or not they heard the remark.
The first witness for the defense was Judge Samuels, who testified that he neither heard the remark nor observed the incident. Judge Samuels stated that it was Garza who called the statement to the court's attention when he repeated it in a louder than conversational tone in the presence of both the court and the jury. Judge Samuels testified that he did not notice any loud or boisterous conduct by defendant after defendant stepped down from the witness stand.
Defendant then testified on his own behalf. On cross-examination, he admitted making the offending remark but stated that he made it only after being provoked by an ethnic slur made to him by Garza after he had approached the counsel table and attempted to gain Garza's attention. Defendant testified that when Garza "* * * insulted my people with [obscenity], I replied with the most venomous insult back to him" and that the insult was directed to Garza personally.
Judge Houtsma found that the testimony of the two witnesses who had actually heard the offensive remark was very credible. Conversely, he found defendant's testimony regarding the provocative slur by Garza incredible. Considering both the serious nature of the proceeding at which the conduct took place and the conduct itself, Judge Houtsma concluded that defendant's conduct
"hindered or obstructed the court in its administration of justice, was in degradation of the authority and dignity of the court, and intended to bring the administration of justice ...