Opinion
No. 93-02722.
July 3, 1996. Rehearings Denied August 23, 1996.
Appeal from the Circuit Court, Hillsborough County, Donald C. Evans, J.
Emilio Lombardo Ippolito and Susan L. Mokdad, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Williams I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
Emilio Lombardo Ippolito and Susan L. Mokdad appeal their convictions and sentences for two misdemeanors. We affirm these orders. Ms. Mokdad also appeals her conviction for direct criminal contempt. Because we conclude that her isolated comment was not objectively an imminent threat to the administration of justice, we reverse this conviction.
On September 14, 1992, Judge Thomas Stringer conducted a postjudgment criminal contempt hearing in a dissolution of marriage proceeding. The former wife had allegedly violated certain child visitation requirements. The hearing was a public hearing. Mr. Ippolito and his daughter, Ms. Mokdad, who are not related to the parties in the dissolution proceeding, attended the hearing with a group of citizens.
At some point during the hearing, Judge Stringer advised the former wife that she was not free to leave and would be held in contempt and taken into custody if she attempted to leave the hearing. A bailiff heard Mr. Ippolito encourage her to leave. As she got up to leave, Mr. Ippolito, Ms. Mokdad, and the other members of the group surrounded her and moved into the hallway. When the bailiffs attempted to take the former wife into custody, a physical disturbance erupted.
Mr. Ippolito and Ms. Mokdad are involved with a loosely organized group of people sometimes described as "constitutional counselors" or the "constitutional court." Their difficulties in this case, in large part, arise from their unusual and incorrect reading of the United States Constitution. When reading the Constitution, they emphasize the powers retained by the people under the Ninth Amendment without recognizing that the Tenth Amendment reserved to the states the power to establish state court systems and to regulate persons engaged in the practice of law. Thus, they have little respect for the courts created by Article V of the Florida Constitution and apparently believe that "the people" have some retained power to override or ignore the authority of such courts. "The people" in this context appears to be any small group whose members agree on a particular view of justice in a given case. This interpretation of the Ninth Amendment, if correct, would give support to the type of vigilantism and "lynch-mob justice" that any democracy must abhor. As a result, the state did not regard this incident as merely an emotional outburst at a domestic relations hearing.
The state filed an information charging Mr. Ippolito and Ms. Mokdad with battery on a law enforcement officer, obstructing an officer without violence, and disorderly conduct. The state charged Mr. Ippolito with an additional count of battery on a law enforcement officer concerning a second bailiff. Mr. Ippolito and Ms. Mokdad were tried together. They represented themselves at their jury trial. The jury found Mr. Ippolito guilty of obstructing an officer without violence and disorderly conduct. The jury did not reach a verdict on one count of battery on a law enforcement officer, and found him not guilty on the second count of battery. The jury found Ms. Mokdad guilty of obstructing an officer without violence and disorderly conduct, and not guilty of battery on a law enforcement officer. The trial court adjudicated each defendant guilty of the two misdemeanors and sentenced each defendant to two concurrent terms of six months' incarceration in the county jail.
In March and May 1993, the Chief Judge of the Thirteenth Judicial Circuit also entered orders enjoining Mr. Ippolito and Ms. Mokdad from certain litigation activities and regulating their access to the Hillsborough County Courthouse.
We have reviewed the numerous issues raised by the defendants concerning these convictions and sentences and conclude that their arguments are without merit. Accordingly, we affirm their convictions and sentences.
The trial court also convicted Ms. Mokdad of direct criminal contempt for a statement made during her pro se motion for judgment of acquittal. Although we recognize that the conduct of these defendants throughout this trial would have tried the patience of the most tolerant judge, we reluctantly conclude that the isolated statement made by Ms. Mokdad in the course of self-representation did not constitute direct criminal contempt.
At the close of the state's case on Tuesday, August 3, 1993, Ms. Mokdad made an oral motion for judgment of acquittal. Outside the presence of the jury, she vigorously argued that the charges were the result of a state conspiracy against her, that witnesses had committed perjury, and that the Constitution demanded her acquittal. She concluded her argument with the statement:
And, Your Honor, with all due respect, I have to say you are a disgrace and this Court is a disgrace for what is appearing here today. And I demand that this case be dismissed with prejudice.
At that time, the trial court simply denied the motion and proceeded with the trial. The defendants called four witnesses, whose testimony consumed the remainder of the day. The following morning, the state and the defendants gave their closing arguments. After the trial court gave its instructions, the jury retired to deliberate. The trial court then invoked Florida Rule of Criminal Procedure 3.830 and announced its intent to charge Ms. Mokdad with direct criminal contempt exclusively for making the above-quoted statement on the previous day. The trial judge notified Ms. Mokdad that he would give her the right to present evidence or mitigating circumstances after the jury returned its verdict.
After the jury returned its verdict and the defendants had been sentenced, the trial court gave Ms. Mokdad an opportunity to be heard on the issue of direct criminal contempt. She presented no evidence, but explained that she was very emotional about this trial and that she wished to apologize to the court.
We note Ms. Mokdad has not argued on appeal whether it was proper for the trial court to wait until the jury was deliberating to provide her with the notice of the court's intent to charge her with contempt for this single incident. Likewise, she does not appeal the trial court's decision to use summary proceedings immediately following her sentencing. See Wolfe v. Coleman, 681 F.2d 1302 (11th Cir. 1982) (Florida state court judge cannot impose summary punishment without ongoing court proceeding).
The trial court adjudicated Ms. Mokdad guilty of contempt and sentenced her to a one-year term of probation, consecutive to the jail sentence. The trial court's written order, required by rule 3.830, recites that the only factual basis for the conviction is Ms. Mokdad's referring to the court as a "disgrace" during her argument.
If Ms. Mokdad were an attorney, licensed and regulated by the supreme court, we would agree that her argument warranted some type of sanction. See Tarrant v. State, 537 So.2d 150 (Fla. 2d DCA), review denied, 544 So.2d 201 (Fla. 1989); Mann v. State, 476 So.2d 1369 (Fla. 2d DCA 1985); but see Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965) (reversing attorney's conviction for contempt arising from motion charging judge with bias). But Ms. Mokdad is not an attorney. See, e.g., Thompson v. State, 618 So.2d 781 (Fla. 5th DCA 1993) (pro se defendant's remarks during rebuttal were not objectively sufficient to justify adjudication of contempt). She is a criminal defendant, untrained in the law, who has invoked her constitutional right to self-representation. See Bowen v. State, 677 So.2d 863 (Fla. 2d DCA 1996).
Ms. Mokdad's conduct is comparable to that of the defendant in In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). After the denial of a motion for continuance because his attorney was unavailable, Mr. Little was required to represent himself. In summation, he claimed that the trial court was biased against him, and had prejudged the case. He maintained that the court was holding him as a political prisoner. The trial court found him in criminal contempt for this disrespectful argument. In reversing, the Supreme Court reminded the bench that:
The precise language of the argument is not quoted in the opinion.
"[T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men [sic] of fortitude, able to thrive in a hardy climate." Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947). "Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice." Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, 595, 72 ALR2d 818 (1958).
Id., 404 U.S. at 555, 92 S.Ct. at 660, 30 L.Ed.2d at 711.
Self-representation is not a permit to disrupt the courtroom or disobey court orders, but it is inevitable that criminal defendants who invoke their Faretta rights will present their cases with more emotion and less finesse than a licensed attorney. We observe that, similar to Mr. Little's argument, Ms. Mokdad's argument did not contain profanity, threats of violence, or sarcasm. Her brief argument did not interrupt or delay court proceedings or impact upon the jury. Her argument did not violate any standing court order, and she was never instructed to stop the argument. At the time of the comment, the trial court did not find it necessary to take any action to maintain its control and authority. Thus, Ms. Mokdad has been convicted of direct criminal contempt for forcefully stating her incorrect and ill-conceived personal opinion in the course of self-representation. In this context, we must weigh the court's inherent power of criminal contempt against Ms. Mokdad's First and Sixth Amendment rights. With our sympathies to the trial judge, we conclude that Ms. Mokdad cannot be punished for criminal contempt on the basis of this single, isolated statement made while representing herself in court.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
To be an act of contempt, such an isolated remark "must constitute an imminent, not merely a likely, threat to the administration of justice." Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); United States v. Lumumba, 794 F.2d 806 (2d Cir. 1986). This disrespectful remark must be judged objectively and not subjectively by the presiding judge. Murrell v. State, 595 So.2d 1049 (Fla. 4th DCA 1992). Even if we examine the disrespectful remark in the context of Ms. Mokdad's entire motion for judgment of acquittal, we cannot objectively conclude that the comment was calculated to hinder or obstruct the court in the administration of justice. Ms. Mokdad should be embarrassed by her lack of decorum, but this single, overexuberant remark is not objectively sufficient to embarrass a court in the administration of justice. Moreover, we are unwilling to treat such an ill-conceived, personal opinion by a layperson as the type of statement calculated to lessen the authority or dignity of a court established under Article V of the Florida Constitution.
Affirmed in part; reversed in part.
QUINCE, J., concurs.
FRANK, A.C.J., dissents with opinion.
I, too, concur in affirming the convictions and sentences imposed upon the appellants.
After thorough consideration of this matter and according warranted significance to the total setting culminating in Ms. Mokdad's direct criminal contempt adjudication, I am persuaded that the majority reaches its conclusion upon two erroneous grounds — ipse dixit and a misapplication of Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). Thus, I find neither authority nor a meaningful premise for the conclusion that Ms. Mokdad's "remark is not objectively sufficient to embarrass a court in the administration of justice." The species of comment that the majority would deem "objectively sufficient" seemingly falls within a classification difficult to define. Perhaps the majority is saying that ugly comments directed at a judge are insulated from discipline if not of an obscene nature. I can, however, only speculate in attempting to comprehend verbal misconduct engaged in by a layman justifying punishment if utterance of the present words is immune from sanction. Cf. Murrell v. State, 595 So.2d 1049 (Fla. 4th DCA 1992).
In any event, the majority opinion in Eaton, relied upon by the majority in this case, unmistakably rests upon a distinction between aiming the angry words at a party and not the judge. I agree with the naked notion that calling a party "chicken shit" in the courtroom may be indecorous but something much less than an attack upon the administration of justice. It is apparent, however, that the majority in Eaton assessed the contemptuousness of the "chicken shit" expression by the fact that it was "not directed at the judge or any officer of the court." 415 U.S. at 697, 94 S.Ct. at 1229, 39 L.Ed.2d at 695. I am quick to concede that socially unacceptable expressions may not elevate to a contumacy because uttered in a courtroom. A different standard must exist, however, if the judiciary is to be free to function without discrediting ad hominem attacks.
The notion, borrowed from Eaton, that a remark "must constitute an imminent, not merely a likely, threat to the administration of justice, " is wholly misplaced when considered in the context of the instant proceeding. The quoted language is drawn from Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947), a proceeding in which the publisher, the editor, and a journalist generated a series of calumnious news articles about a judge. Neither Eaton nor Craig involved a factual setting in any degree paralleling the one at hand — a direct, in-court attack upon a judge's integrity. Based upon the following authority, the correct standard to be followed here is that which has been applied on numerous occasions where the focus was upon the contemnor's intent to embarrass or lessen the dignity and authority of the trial court. See R.C. v. State, 648 So.2d 1258, 1259 (Fla. 3d DCA) (scatological language addressed to an officer of the court was contemptuous as it was "calculated to lessen [the court's] authority or its dignity") (quoting Ex parte Crews, 127 Fla. 381, 389, 173 So. 275, 279 (Fla. 1937)), rev. den., 659 So.2d 1088 (Fla. 1995); Murrell v. State, 595 So.2d 1049, 1050 (Fla. 4th DCA 1992) (standard to be applied is based upon a determination of the conduct's tendency to hinder the administration of justice and its calculation to cause harm); Suggs v. State, 509 So.2d 964 (Fla. 3d DCA 1987) (accusation that trial court was "crooked, " had the record so reflected, is contemptuous because it serves to "degrade, embarrass or hinder the court in the performance of its judicial duties"); Martinez v. State, 339 So.2d 1133 (Fla. 2d DCA 1976) (contempt defined as "conduct that is directed against the authority and dignity of the court") (quoting Ex parte Earman, 85 Fla. 297, 95 So. 755 (Fla. 1923)), approved, 346 So.2d 68 (Fla. 1977); Saunders v. State, 319 So.2d 118, 124 (Fla. 1st DCA 1975) (profanity addressed to judge was contemptuous as it was "calculated to embarrass and obstruct the court in the administration of justice and to lessen the authority and dignity of the trial court"), cert. discharged, 344 So.2d 567 (Fla. 1977).
The standard I deem most appropriate is the one suggested by the dissent in Eaton. It commits the reviewing court to an examination of the record in its entirety to determine if the offensive words exist in isolation. Eaton, 415 U.S. at 701-08, 94 S.Ct. at 1231-34 (Rehnquist, J., dissenting, joined by Burger, C.J., and Blackmun, J.). Here, from those portions of the record alluded to by my colleagues, there can be no mistake that the trial court judge had been immersed in disrespectful and improper behavior well prior to finding Ms. Mokdad in contempt.
I decline adding my imprimatur to Ms. Mokdad's verbal abuse of the trial court judge; I would affirm the direct contempt adjudication of Ms. Mokdad.