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People v. Ziporyn

OPINION FILED APRIL 19, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

MARVIN ZIPORYN, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Cornelius J. Houtsma, Judge, presiding. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1985.

In a bench trial in the circuit court of Cook County, defendant, Marvin Ziporyn, was convicted of indirect criminal contempt. Defendant appealed, the appellate court reversed (121 Ill. App.3d 1051), and we allowed the People's petition for leave to appeal (94 Ill.2d R. 315(a)). The facts are adequately set forth in the opinion of the appellate court and will be restated only to the extent necessary to discuss the issues.

Defendant, a psychiatrist, testified as an expert witness for the defense in a sentencing hearing in a capital case. He was subjected to cross-examination which the appellate court described as "vigorous," "extensive," and "rather demeaning." Upon leaving the witness stand, he approached the assistant State's Attorney who had cross-examined him and addressed to him a remark which the appellate court correctly describes as "a vile epithet." The testimony varies as to whether defendant's remark was whispered or delivered in a louder tone of voice. There is no question, however, that the assistant State's Attorney repeated the remark in a louder than conversational tone and demanded that defendant be held in contempt of court.

The People filed a verified petition for contempt, and the judge presiding at the hearing during which the incident occurred transferred the cause for reassignment and trial before another judge. Defendant was found guilty of indirect criminal contempt and sentenced to one-year misdemeanor probation, five weekends of which were to be spent in the Cook County Department of Corrections.

The appellate court concluded that defendant, when whispering the obscene remark to the assistant State's Attorney, could not have foreseen that he would loudly repeat the remark and could not therefore have known that it would embarrass or obstruct the court in the administration of justice. It held that the comment made to the lawyer posed no imminent threat to the administration of justice and did not constitute contempt. It concluded that the People failed to prove the contemptuous act and the criminal intent required for criminal contempt, and reversed the judgment.

The People contend that it is "contumacious to address a form of obscene ritual fighting words to an officer of the court in the presence of jurors and within the hearing of spectators." They point out that two witnesses, one approximately four feet and the other approximately eight feet from the respondent, heard the insult. They argue that these words, spoken within the hearing of spectators, were clearly intended to impair the dignity and authority of the court.

We do not agree with the appellate court that the evidence does not show the intent necessary to sustain a finding of guilt of contempt of court. Defendant admitted that he made the statement, and although it is contended that it was said in a whisper, two witnesses testified that they heard him say it. Under these circumstances, it was possible that members of the jury might have overheard defendant's comments.

Defendant is a psychiatrist with considerable experience in court appearances. The intent to commit contempt of court may be inferred from the actions of the contemnor. (People v. Siegel (1983), 94 Ill.2d 167, 171; People ex rel. Kunce v. Hogan (1977), 67 Ill.2d 55, 61.) Although, as the appellate court said, it is true that defendant could not foresee that the assistant State's Attorney would repeat the epithet and demand that defendant be held in contempt, it was certainly foreseeable, under the circumstances, that these "fighting words" would prompt action which would disrupt the court proceedings. In our opinion the finding of contempt is supported by the evidence.

Defendant contends that the circuit court erred in denying his oral motion for a change of venue. The reason for the requested change, as stated by counsel, was that "obviously my client would be prejudiced in this court. It seems that the State's Attorneys are the ones who are filing this and not the court * * *." Simply stated, the argument appears to be that because the assistant State's Attorneys were the complainants rather than serving as counsel, the court was prejudiced. We find the contention to be without merit.

Defendant contends that the court's prejudice was demonstrated by disparaging remarks concerning counsel and by its wrongfully accusing defendant of obstructing the proceedings. From our examination of the record we conclude that these contentions are without merit.

Although the finding of contempt is affirmed, we conclude that on this record the imposition of a period of probation is unnecessary and excessive, and that a fine is adequate punishment for the offense. The testimony indicates that the conduct of the assistant State's Attorney was not beyond reproach, and his cross-examination of defendant appears to have been deliberately demeaning. That defendant's conduct was not flagrantly contemptuous is obvious because until the assistant State's Attorney repeated his comment, neither the court nor most of the people in the courtroom were aware that anything untoward had occurred. As indicated by the record, defendant has testified on many occasions without any prior unseemly occurrence. Under the circumstances we are persuaded that an appropriate sanction is the imposition of a fine in the amount of $250.

For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court finding defendant guilty of contempt of court is affirmed. The cause is remanded to the circuit court of Cook County with directions to vacate the order of probation and fine defendant the sum of $250.

Appellate court reversed; circuit court ...


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