In Re the Contempt Hearing of Nasser
627 N.E.2d 1338
Ind. Ct. App.
1994
Check Treatment

*1 purpose regulation of Act. Such a serves reasonable, purpose,

a valid it is and it was

statutorily permissible agency for the

mulgate regulation. uphold exemption

I therefore vote to grant Speedway International's would summary judgment.

motion for

In re the CONTEMPTHEARING

OF Woodrow S. NASSER.

No. 11A04-9303-CR-1151. Indiana, Appeals

Court

First District.

Jan.

Rehearing April Denied direction, Judge. 1. This case was transferred to this office Novem- ber Chief *2 namely, that actions Nasser's constituted contempt of direct Among things, other the court found that jury Larry Nasser knew that the trial of had Bemis been scheduled for October appear, 1992 but did not and that Nasser "gave satisfactory why no reason he was not present except assump- that he made various tions without information sufficient to back assumptions." findings up those These are by supported indeed the record. transcript of The evidence shows the Larry trial of Bemis was set at his initial McGlone, Offices, H. Law Gerald McGlone hearing August on 1992 for October Haute, appellant. Terre for 1992; appearance that Nasser filed an for Funk, Fulwider, Hill, T. McDo- Norman 1, 1992; September Bemis on and that he well, Matthews, Indianapolis, Funk & for service, averring executed a certificate of appellee. appearance that service of his had been made delivery Kenley, by hand John ROBERTSON, Judge. Prosecuting Attorney County of Parke on appeals Woodrow S. Nasser prosecuting attorney Clay that date. The against direct him and raises es- Deal, County, appear- never received an Jim sentially one issue: whether the court's find- filings ance or from Nasser. Nas- ing of direct is sustained briefly early Septem- ser met with Bemis findings. and the trial evidence Nas- ber but did not discuss with Bemis the merits Larry D. ser was record of his case. Bemis, jail was in unable to make 14, 1992, Wednesday On October be- awaiting prosecution bond while on child mo- trial, Deal, Judge Mr. fore Yelton directed charges. Clay lesting Cireuit Court prosecuting attorney, to contact Nasser. found Nasser to be in of court for point It was at this that Mr. Deal discerned failing jury for Bemis' trial. We that Nasser was the of record for affirm. Larry learned from Nasser Bemis. Mr. Deal We note at the outset that Nasser was prepared that Nasser was not for trial be- him, charges against had a advised requested cause he had not nor received the by way them reasonable meet and that Nasser in- State's documentation explanation, right to be of defense had request a continuance. Mr. Deal tended counsel, represented and had a chance to Judge relayed this information to Yelton. behalf, testify and call other witnesses a written motion did not arrive in When by way explanation. either defense or Friday's mail and Nasser had not contacted proceeded initially upon filing matter attorney, prosecuting both of an affidavit for citation for indirect con- Judge Yelton and Deal for the Mr. prepared tempt pursuant of court to Ind.Code 34-4-7- Monday. thirty trial on The court called Yelton, by Judge judge Clay Ernest jurors, rearranged in the court- the furniture State, by Subsequently, Circuit Court. room, prepared jury orga- instructions attorney, prosecuting filed a motion to prosecutor nized materials for voir dire. The charge to include an alternative amend prepared instruc- contacted witnesses and alleging count and the mo- tions and visual aids. objection by granted tion was without Nas- jurors, appeared Special Judge Gray participants, including All ser. Thomas issued a Monday morning, and, following prepared for trial on rule to show cause Clay County expended October cause, specific on the rule to show entered law, jurors single compensating who were of fact and a conclusion $343.00 trial,. 1179; eventu- Grimm State for the The matter was called 454; 125, 127, In the Matter Ind. lack of ally continued because of Nasser's (1991), Ind.App., Miller preparation. and the evidence 315. The court's statement for con- Judge Yelton did receive a motion absence, Nasser, by his created reflects that 15, 1992, *3 tinuance, from Nas- dated October disrupted proceedings of confusion and mail, Monday's in which arrived at 9:41 ser was in session and the court while the court from a bench am. Nasser was summoned open of business. Nas for the transaction County appeared in and at 10:44 trial Parke conduct, is, appear, his failure to ser's that the trial had a.m. He admitted that he knew by contempt as it is defined constitutes direct morning told the been scheduled for that but statute. that he the trial would be and court believed Nasser also admitted had been continued. observe, however, that it is the We that he never contacted the court to deter- of and not prerogative of the courts this state mine whether the court had received legislature to define that conduct which grant for continuance or intended to motion contempt La a of court. See 14, that on it. Nasser also testified October 689,692, (1958), Grange 238 Ind. 153 v. State 1992, Deal, he knew when he talked with Mr. (1927), 593; N.E.2d State v. Shumaker 200 that one of the two matters he had scheduled 644, 623, Among Ind. 157 N.E. 769. continued; Monday would to be for that need powers inherent of a court is that of main only Judge grant that he knew Yelton could taining dignity, securing its obedience to its continuance; him it had a never been rules, rebuking process and interference with keep him practice of the court to advised punishing and un the conduct of business pending of the status of matters and that it statutory seemly Id. at 640. The behavior. obligation keep himself was his so advised. not all-inclu definition of direct is argues appeal in this that the con- Nasser recognition merely legislative a of but sive by contemptuous duct found the court to be punish power the court's inherent to cite and supporting and the evidence those 694; contempt. Id. at v. Skolnick State do not show Nasser to have been in direct (1979), 253, 1156, Ind.App. 388 N.E.2d argu- of court. The thrust of his denied, 1162, 906, cert. 445 U.S. 100 S.Ct. nothing presence is that in of ment he did 1085, 323. is therefore 63 L.Ed.2d permit the court to a of direct con- wrong in his assertion that we must look tempt. argument upon a Nasser's is based solely an to the statute to ascertain whether 34-4-7-1, reading of which selective I.C. act or does not constitute a does part: vides in relevant (1890), 570, See Hawkins v. State 125 Ind. shall, Every by talking, person ... 573, 25 N.E. 818. about, by moving signs, gestures, or Contempt of court is disobedience to manner, any any in in court of ree- by opposition in a court action to the court's ord, open while the same is for the trans- authority, justice dignity. and It includes business, therein, engaged action of and any pertains pending proceed to a act which therein, any create noise or confusion ing and which tends to deter the court from whereby proceedings the business performance Brumbaugh duties. disturbed, said court shall be shall be (1986), Ind., 983, v. State 984. guilty of a deemed to be said contempt has been deemed to Direct disrespect for be act which manifests a contempt proceedings,

In direct pri reviewing accept as true the state and defiance of a court. Id. It deals court will marily court of with the maintenance of order and ment entered record the lower 1169, courtroom, constituting contempt, at and is the matter but will id. contemptuous conduct the nature of which is record, necessary, if to de also examine the by the personally known and observed court alleged the acts con termine whether be do, fact, testimony temptuous constitute actions of and not made known (1984), Ind., Marriage Neiswinger re others. In re the Caito procedure employed that the observe We 261; v. (1985), Ind., Andrews ap fully comports with that in this case Ind.App., 505 State proved by this court's second district Cur instance, is within the the misconduct In each directly judge and knowledge of the personal Ind.App., 625 N.E.2d 496. tis v. State opportuni gave Nasser two to him in a manner The trial court applied or communicated explanation explain his actions and his general public. La ties to different Moreover, inadequate. as N.E.2d 593. As deemed Ind. at was Grange, 238 concurring dissenting the Curtis court's court has or not to whether committed, depend upon out, not presence does one's at a opinion points been when particular time is re offending party, particular place at but alleged intention of law, non-presence he did. Coons State person's the act which quired by on the courtroom. occurs within 134 N.E. conduct which 191 Ind. *4 Curtis, N.E.2d at 498. 625 contempt are all of direct These indicia the trial finds fault with Nasser also Plainly, Nasser's in case. present Nasser's arguing numerous facts findings, administration directly impeded the conduct findings. The trial from the were omitted progress of all justice, retarded the of find the facts as required not to court was Court, Clay and af- ceedings in the Circuit them; which portrays Nasser court. Nasser's dignity of the fronted the adequate to sus- are more than were made Bemis, already in client, had been Larry judgment. tain the sixty days, forced to return jail least was at delayed for better jail and his trial to Judgment affirmed. consequence of Nasser's erro- forty days as a Clay Cireuit Court assumptions. The neous SHARPNACK, C.J., concurs. judicial day full time at least one wasted full and other matters the calendar was when MILLER, J., separate dissents with ju- Potential have been commenced. could opinion. officers, witnesses, proge- rors, police and the part of the attorney all lost the better cuting MILLER, Judge, dissenting. ap- failure to

morning of Nasser's because in court present was not Since pear. alleged contempt occurred-nor when my of the record reveal does examination argue to that inac Nasser also seems (the judge was even in session court was contempt. Al a direct tion cannot constitute arrival)-Nasser could not awaiting Nasser's court to an officer of the though the failure of contempt. direct eriminal committed have required typi him has act perform some guilt con- judgment of for direct contempt, see cally as indirect been treated and supported the facts tempt was not (1989), Ind., Toomey e.g. In the Matter of erroneous, evidence, and should clearly was 608; In the Matter Cowen N.E.2d reversed. Ind., 24; Howard v. Korte depends dignity of a court of these none Ind.App., 555 right of the of decorum. oc maintenance contemptuous a omission cases involved right to function protect its inherent miscon court to curring during jury a trial. Nasser's contempt power has venerable proceed through its directly court interfered with duct Indiana, history and our law with judicial sys in brought ings could have complicated. When an view, right is not to that disrepute. In our tem in proto- accepted courtroom disturbs Nasser's failure individual properly characterized below col, for punishment he or she faces contempt. Nasser was appear as a direct to defini- majority has noted several protections entitled While given procedural all the explanation of contempt, I find the tions contempt giv of indirect to one accused contempt given our indirect direct and explain to his conduct. a full en Wright Parte supreme court in Ex intent can explanation, Nasser's Despite his clearly instructive: Ind. 504 to be of his conduct. from the nature be inferred Indeed, A contempt of court is direct majority either of state and federal A [indirect].... constructive direct con- question courts that have addressed this insult, tempt open is an in the face of the similarly attorneys' have found errant actions court, person judges while to constitute Generally, indirect presiding, powers or a resistance to its these courts attorney's reason that while an presence. their A [indirect] constructive personal knowledge absence is within the done, contempt pres- is an act not in the court, not, the reason for the absence is court, distance, ence of but at which and, therefore, process requirements the due authority, resists their as disobedience indirect attach. See 13 court, process, or an order of the such as (1982). 122, § A.L.RAth obstruct, operation tends inter- Moreover, Jersey proce- while the New rupt, prevent or embarrass the administra- dure, adopted by majority in Curtis v. justice. tion of State, Ind.App., for deter- Id. at 508. mining whether an is in direct or disruptive activity When the failing indirect court, charges no formal court, innovative, is not the law in evidentiary are filed and no is held. short, Jersey proce- Indiana. the New Rather, Ind.Code 34-4-7-7. citation and provides dure that when an fails to punishment entirely for direct is an *5 court, appear in given oppor- he or she is an summary process; may pun the offense be tunity explain later, to ap- the absence at a immediately upon occurrence, ished with parently perchance, appearance before the proof explanation out beyond further or what explanation given court.1 If the is reason- presiding judge by known to the able, citation for will not follow. senses. Skolnick State 180 Ind. However, if attorney give the refuses to an 1156, 1170, App. cert. denied. explanation explanation or given the is inade- Conversely, disruptive activity when the con quate insulting court, or to the attorney the stitutes contempt, indirect is en accused may summarily cited for direct contempt. panoply titled to a procedur constitutional hand, On the other explanation if the is of process, including al due op notice and an questionable adequacy, the matter will be portunity to be heard. See Ind.Code 34-4-7- indirect, treated as accompanied will be 8 and Ind.Code 34-4-7-9. process safeguards. due Curtis at 498. Given the above definition of direct con- tempt, I fail why to see how Nasser's I fail to failure to see proce- Indiana's court, appear in non-presence, dure is determining insufficient for the fate an presence action taken attorney of the court. of an appear who fails to in court.2 adopted Jersey "hy The Curtis court may go by the New attorney or even months before the approach Yengo brid" from In re 84 N.J. appear again, perhaps will have reason to denied, 417 A.2d cert. 449 U.S. appear will never have reason to before 110,where, 101 S.Ct. 67 L.Ed.2d in describ again. seriously question I ing step contempt procedure, this initial in the practicality, apparent as well as the lack of for- Jersey Supreme the New Court stated: procedural process, mal proce- due of this initial unlikely complete Aside from the event of dis- dure. appearance attorney, of an the absence will be example procedure employed For an of one subsequent appearance followed - ... be- court, an see In fore the court. At that time the court invari- Stanley re the Matter Jablonski Ind. ably explanation will ask for an from the attor- App. presented 590 N.E.2d 598. While the issue ney. Generally the absence alone does not here, in Jablonski is not relevant the factual constitute An essential element of scenario is similar and instructive. After Jablon- inadequacy explana- the offense is the ski, defender, public failed to three tion. defendant, times on behalf of a criminal Judge Shields elaborated no further on judge requested thereof, county prosecutor proceed formality, to cedural or lack of this essen- (or contempt charges. tially "preliminary" with indirect criminal possibly surprise) After hear- ing conducting investigation, require- prosecutor an for which no mention is de made of a given charges ment for clined to file notice to be the accused. De- because he found that pending upon the individual circumstances Jablonski's absence was not based on intentional case, weeks, disobedience, entirely possible days, each it is apparent but an lack of com- However, that even under appears to me pro Jersey "hybrid" approach,

the New of that is indicative afforded Nasser cedure support contempt, and seems indirect non-presence in court that his

my position indirect, rather

might have constituted Nas Specifically, explain an afforded ser was "preliminary" at a

his absence appar Judge Yelton day the occurrence. inadequate, explanation to be

ently found his citing an Nas issued affidavit

and thereafter Later, for indirect ser opportunity to be notice and an

was afforded Nothing hearing. about at a formal

heard summary in employed was procedure

nature. charged with an summary, Nasser was impossible prove be which was

offense place in the actions did not take

cause his however, That, is the presence. Judge Special problem.3 Since

state's judgment with

entered no contempt charge, Nasser criminal

indirect offense. guilty of

was not found *6 and Nasser case should be reversed

discharged. STITES, Appellant-

Diamond Below,

Defendant Indiana, Appellee

STATE

-Plaintiff Below.

No. 71A03-9309-CR-292. Indians, Appeals of

Court District.

Third

Jan. Mishawaka, appel Verheye, P.

Julie lant. staff, object to that Nasser did not 3. The record reveals part on the

munication contempt charge. logical employed filing criminal procedure in Jablonski of the direct mean, however, comports prescribed Indiana law. with that that he waived does not That charge duty prove need for Indiana to embrace the direct I see no state's adopted hybrid procedure "manufactured" against him. Curtis, "preliminary" particularly perchance hearing.