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June 16, 1994


Bilandic, Nickels, Harrison, McMORROW

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The sole issue in this appeal is whether appellant, David Sotomayor, an attorney licensed to practice law in this State, was properly found in direct criminal contempt of court. During a traffic proceeding in Du Page County, appellant substituted an individual other than defendant at counsel's table, without the court's permission or knowledge. The trial Judge found that such conduct constituted direct criminal contempt, and fined appellant $500. The appellate court, with one Justice Dissenting, affirmed the finding of direct criminal contempt, but reduced the fine to $100. (236 Ill. App. 3d 1096.) We granted appellant's petition for leave to appeal (134 Ill. 2d R. 315(a)). We allowed the National Association of Criminal Defense Lawyers to submit a brief as amicus curiae on appellant's behalf.

The incident that gave rise to the contempt citation occurred during appellant's representation of defendant, Christopher Simac, for charges that arose from a car accident on March 20, 1990. Defendant was charged with driving with a revoked license and failure to yield while making a left-hand turn. After several delays, the case was called for trial on December 11, 1990. The State's only witness was Officer Ronald H. LaMorte. The complaining witness, Beth Nelson, never appeared at the trial.

Before trial, appellant seated David P. Armanentos, a clerical worker employed at his law firm, next to him at counsel's table. Defendant was seated at another location in the courtroom. Armanentos and defendant shared similar physical characteristics, in that they were both tall, thin, dark blond-haired men who wore eyeglasses. On the date of trial, Armanentos wore a white shirt with blue stripes, while defendant was dressed in a white shirt with red stripes.

Appellant did not ask the court's permission, or notify the court that he had substituted Armanentos in the customary place for a defendant at counsel's table. The State's Attorney also was not notified of the substitution. The court ordered all witnesses who were going to testify to come forth and be sworn. The clerk asked appellant, "Is your defendant [going to be sworn]?" Appellant replied, "No."

In the State's case in chief Officer LaMorte testified regarding the automobile accident that he investigatedon March 20, 1990, which resulted in injuries to a woman and her young child. He described the intersection where the accident occurred and the position of the cars. LaMorte testified that he asked defendant for identification; however, he believed that defendant was unable to produce his driver's license.

LaMorte identified Armanentos, who was seated next to appellant at counsel's table, as the person who was involved in the accident. The court noted LaMorte's identification of Armanentos as the defendant for the record. Appellant did not inform the court of the misidentification at this time or reveal that defendant was seated elsewhere in the courtroom.

After the State rested its case in chief appellant made a motion to exclude witnesses. The motion was granted, and LaMorte left the courtroom. Appellant then called Armanentos, the person whom LaMorte previously identified, as a witness. Armanentos was sworn at this time, as he did not come forward to be sworn when the court called for witnesses at the beginning of the trial. When Armanentos stated his name for the record, the court received the first indication that a misidentification had occurred.

On direct examination, Armanentos testified that he was not driving a motor vehicle at the intersection in question on March 20, 1990. The defense then rested. Under cross-examination, Armanentos testified that he had never met defendant. He stated that he temporarily worked as a clerical employee in the appellant's law firm. It was his understanding that he was brought to court by appellant and instructed to sit at counsel's table to see whether the testifying officer would identify him as the defendant. Armanentos testified that he was told that he resembled defendant. He further admitted that he looked similar to defendant, as they were both tall, thin, and Caucasian. In response to the court's inquiry, Armanentos admitted that he did not approach the clerk to be sworn in as a witness before the commencement of the trial.

Appellant stated for the record that Armanentos never approached the bench. He was not sworn in, and was seated in the corner of the courtroom until appellant directed him to sit in the chair next to him. Appellant argued that no fraud was perpetrated on the court, for defendant was in open court as required. He asked that a directed finding of not guilty be entered in the traffic case based on the misidentification.

After appellant said that he did not intend to call any further witnesses, the State called defendant to testify. After taking the stand and stating his name for the record, defendant invoked his fifth amendment privilege and was excused. The court refused the State's request to call appellant as a witness. The State then asked that defendant take his position next to his attorney. The court replied: "He can sit any place he wants to in the courtroom. He is here." Over appellant's objection, the court allowed the State to recall LaMorte. LaMorte again misidentified Armanentos as the defendant. The court granted appellant's request for a directed finding of not guilty based upon the misidentification. In addition, the court entered an order for contempt of court against the appellant for placing the witness in such a manner as to mislead the State's Attorney and the arresting officer. The court stated that the person seated next to appellant did not look like co-counsel or anyone employed in an attorney's office. The court stated that appellant had seated Armanentos next to him to purposely mislead the court. The order prepared by the court stated that "defense attorney is held in direct contempt of court for having a person bearing the likeness of [defendant] sit at the counsel table with him in the location usually occupied by defendant." Thecourt imposed a $500 fine on appellant for direct criminal contempt.

The next day, the court made the following supplemental findings concerning this episode:

"The court finds that it was the totality of the conduct of [defense] attorney in court in connection with this case that is the basis for the court's finding of criminal contempt for misrepresentation by inference including the following findings:

1. That a person with the likeness of the defendant, a young, white male, was the only person with defense attorney at the counsel table when defense attorney came to the bench and said, 'Here is my jury waiver.'

2. That person was dressed in jeans and a shirt with no tie that is not the courtroom attire of an attorney or co-counsel, yet that person sat in the customary location of a defendant throughout the State's case.

3. That person was asked by the clerk to be sworn with other witnesses at the start of the trial, to which defense attorney said that said person was not going to testify. The obvious inference of this comment to the court and clerk was that the person was the defendant because witnesses were excluded except for defendant.

4. That person was identified as the defendant by the State witness police officer, and all of the foregoing resulted in the court's comment that the record could show that the defendant was identified for the record; there was no defense attorney response to this court's comment that advised of the court's impression and finding based on all that had occurred and that the court was misled as to the identity of the defendant.

5. That person's only apparent purpose in the courtroom, in a defendant's customary location with defense attorney, was to create an inference to the court that he was the defendant, and this was done with the knowledge of defense attorney.

6. That while there was no express misrepresentationby words, there was a misrepresentation by inference by the totality of the conduct of the defense attorney, and that was the basis of the criminal contempt of court finding."

On the same day that these supplemental findings were filed, appellant presented a motion to reconsider the order holding him in direct criminal contempt. In support of the motion, appellant stated that defendant was seated in the courtroom at the commencement of the trial. Appellant also stated that he made no representation to the court or State's Attorney concerning the identity of the person sitting next to him. Armanentos never approached the bench, nor did he take any affirmative action to falsely represent his identity. The motion to reconsider also described the six persons seated in the courtroom at the time of the misidentification. Appellant argued that his conduct did not embarrass, hinder or obstruct the court. He noted that the ...

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