APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
514 N.E.2d 1218, 162 Ill. App. 3d 57, 113 Ill. Dec. 207 1987.IL.1559
Appeal from the Circuit Court of Peoria County; the Hon. Stephen J. Covey, Judge, presiding.
JUSTICE STOUDER delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
Henry J. Romanski appeals from an order finding him in indirect criminal contempt of court. We reverse.
Romanski was representing his client, Thomas Wolf, on a burglary charge. Wolf's codefendant, Edward Hagerman, who had previously pleaded guilty to the burglary, was called by the State to testify against Wolf. The contempt allegedly occurred during the time of the trial.
At Romanski's contempt hearing, Hagerman testified that on the day before he was to testify against Wolf, while he was in the Peoria county jail, a person he later learned was Romanski approached him. According to Hagerman, Romanski said in a belligerent tone that he was Wolf's attorney; that Hagerman should plead the fifth amendment to the State's questions; that because items had been stolen from the burglary, there was going to be another theft charge; and that on the police report Hagerman had lied, saying that nothing had been stolen. Romanski then told Hagerman that he was going to be given 10 more years in prison. Hagerman testified that Romanski repeated these comments the following day outside the courtroom before Hagerman was to testify.
Romanski testified that he told Hagerman that because certain items had been stolen from the burglarized house and because Hagerman had told the police that nothing had been stolen, the State could bring additional charges against him and he could get 10 more years in prison. Romanski also testified to informing Hagerman that he had a right to take the fifth amendment to any question, that he had a right to an attorney, and that he could request court-appointed counsel. Romanski admitted talking with Hagerman the next day outside the courtroom. In that conversation he told Hagerman that the State could charge him with obstructing Justice and that he could still plead the fifth amendment.
Romanski testified that he had asked Hagerman's attorney for permission to question Hagerman. However, he further testified that during the instant interviews he believed that Hagerman was not represented by counsel. Romanski explained that the purpose behind his questioning Hagerman was to learn whether the State had made a deal in exchange for Hagerman's testimony. It was Romanski's professional opinion that Hagerman had given the police contradictory statements regarding his involvement in the burglary. From those statements, Romanski opined that the State could have charged Hagerman with six counts of obstructing Justice and that Hagerman could have received an additional 10-year prison term. He denied telling Hagerman that the charges were pending.
Romanski testified that he advised Hagerman of his fifth amendment rights so that if Hagerman chose not to testify truthfully that Wolf was not involved in the burglary, he could still avoid perjury by pleading the fifth amendment. Romanski denied telling Hagerman that he should plead the fifth amendment. Romanski also denied that it was his intention to prevent Hagerman from testifying.
From the foregoing, the trial court found Romanski to be in indirect criminal contempt, both for giving Hagerman false information concerning the additional charges and prison time and for interfering with the testimony of a State witness. The court sentenced him to one year of court supervision and fined him $150.
On appeal, Romanski raises six issues: (1) whether he was proved guilty of indirect contempt; (2) whether the trial court lacked jurisdiction over the defendant due to the State's failure to bring the instant contempt proceeding under a new file number rather than the one used here; (3) whether he was improperly denied a jury trial; (4) whether the trial Judge improperly denied Romanski's motion for substitution of Judge; (5) whether the trial Judge improperly communicated ex parte with Romanski prior to rendering his decision; and (6) whether the State's petition for rule to show cause failed to charge the proper mental state. Due to our holding, however, we need only address the first issue.
Criminal contempt is described as conduct that is calculated to embarrass, hinder or obstruct the court in its administration of Justice or to derogate from the court's authority or dignity. (People v. Siegel (1983), 94 Ill. 2d 167, 445 N.E.2d 762.) Indirect contempt occurs outside the presence of the court and must be established by extrinsic evidence. (In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 415 N.E.2d 1354.) Contempt is an ...