Jerry Morgan, III v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 08 2020, 8:21 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry Morgan, III, October 8, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-864
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-2003-MC-678
Tavitas, Judge.
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Case Summary
[1] Jerry Morgan III appeals the trial court’s finding that Morgan was in direct
contempt. We affirm.
Issue
[2] Morgan raises two issues which we consolidate and restate as whether the trial
court abused its discretion by finding Morgan in direct contempt. 1
Facts
[3] On March 13, 2020, the trial court commenced a hearing on Morgan’s two
pending criminal matters. Morgan, who was seated in the jury box,
immediately interrupted the hearing by making comments. The transcript
reflects that the deputy prosecutor asked for a bench conference. Morgan, who
moved to the defense table, then made another comment. The transcript
indicates that Morgan said, “(indiscernible) selling dope from the street
(indiscernible).” Tr. Vol. I p. 4. The trial court exhorted counsel to “not look
at [Morgan]. That’s what he wants.” Id.
[4] At the ensuing bench conference, the deputy prosecutor alleged that Morgan
had just threatened a police officer, Detective Norman Rayford with the
Anderson Police Department. The deputy prosecutor stated: “Well [Morgan]
1
To the extent that Morgan makes an argument on the basis of the First Amendment to the United States
Constitution, the argument is waived for failing to be cogent. See Ind. Appellate Rule 46(A)(8)(a).
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just threatened him in open court . . . Said I’m gonna get you . . . [t]o Norman
Rayford. It’s a Level 6 felony.” Id. The trial court replied, “I didn’t hear it,”
and played back the recording of the proceeding to determine if Morgan had
indeed issued a threat to the Detective. Id. at 5. The judge concluded,
“Unfortunately it didn’t pick up anything from the jury box. Didn’t pick him
up. (indiscernible) [A]nd I can make out some of the words, but it’s not clear.”
Id. at 5-6. The trial court indicated that the recording did partially record the
second comment.
[5] Detective Rayford subsequently took the stand and testified, with respect to
Morgan’s first comment, that, “I began to hear mumbling, which drew my
attention toward [Morgan’s] . . . direction. . . . [H]e looked in my eyes and told
me that he was gonna get me.” Id. at 9. The deputy prosecutor asked Detective
Rayford: “When somebody like that says ‘I’m gonna get you,’ what do you
take that to mean?” Id. at 10. Detective Rayford replied: “Threatening physical
assault.” Id. With respect to Morgan’s second comment, Detective Rayford
testified: “Once he got to the ground floor, he informed that I need to worry
about my brothers. . . . [H]e did inform that he was going to get the State on
me.” Id. The following colloquy ensued:
Q: And, [ ] what did you take that [ ] threat to be about the
State? What does that mean?
A: . . . [K]nowing Mr. Morgan the majority of my forty-four (44)
years of life, I know him pretty well and I figured he probably
was talkin’ about [ ] having the State Police investigate me or the
FBI.
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Q: And, would you also take that to be a threat?
A: I do, sir.
Id. at 11.
[6] The focus of the hearing then turned to the particulars of Morgan’s pending
criminal charges. Morgan took the stand, and the trial court explained:
. . . I was aware [Morgan] made a comment to someone. I
attempted to listen to the court recording, and couldn’t make out
his comment from the jury box. . . . [A]nd we’ve had testimony
from Detective Rayford as to what that comment was. . . .
[S]ubsequent to the comment from the jury box, [ ] Mr. Morgan
then made another comment to Detective Rayford from the
defense table. I could make [sic] some of the words, and some of
the words actually are the same as what Detective Rayford
testified to here [ ] after the State started putting on its evidence
as to its motion. And so, [ ] specifically what the court finds is
that Mr. Morgan in both the comment from the jury box as well
as from the defense table [ ] threaten[ed] Detective Rayford with
bodily harm. [ ] [I]t happened here in court in front of myself
and other members of the public. [ ] [I]t was in violation of the
law to do so, threatening a police officer, which is a violation of
the law. Pretty simple. [ ] [T]hat disturbs the orderly progression
of court proceedings. We’ve had to take additional time. We’ve
had to take additional evidence just to deal with this one issue.
[ ] [T]hat disrupts all the other people that are here to get their
cases resolved.
Id. at 31-32. Morgan was subsequently afforded the opportunity to explain his
behavior—an opportunity which he did not utilize. The trial court then held
Morgan in direct contempt and later issued the following written order:
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Defendant made bodily threats to the lead detective in his case,
Norman Rayford. Detective Rayford was present in court and
heard the defendant’s threats. Defendant’s statements constitute
an attempt to intimidate a witness, and may constitute a new
crime. Defendant’s proceedings were interrupted due to his
statements. The court granted defendant an opportunity to
explain his conduct. The defendant exercised his 5th
Amendment right against self-incrimination. The court finds the
defendant in direct contempt.
Appellant’s App. Vol. II p. 4. Morgan now appeals.
Analysis
[7] Morgan appeals the trial court’s order finding him in direct contempt. Morgan
denies that his conduct amounted to direct contempt and argues that the
contempt finding constituted an abuse of discretion. “A court’s contempt
power enables it to impose sanctions designed to ‘maintain[ ] its dignity,
secur[e] obedience to its process and rules, rebuk[e] interference with the
conduct of business, and punish[ ] unseemly behavior.’” Hunter v. State, 102
N.E.3d 326, 329 (Ind. Ct. App. 2018) (quoting City of Gary v. Major, 822 N.E.2d
165, 169 (Ind. 2005)). “It is soundly within the discretion of the trial court to
determine whether a party is in contempt, and we review the judgment under
an abuse of discretion standard.” Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind.
2016) (quoting Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016)). “‘We will
reverse a trial court’s finding of contempt only if there is no evidence or
inference therefrom to support the finding.’” Id. “When reviewing a finding of
contempt, we accept as true the statement entered by the trial court and will
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interfere with the judgment only where it clearly appears the acts do not
constitute contemptuous acts.” Warr v. State, 877 N.E.2d 817, 824 (Ind. Ct.
App. 2007) (citing Davidson v. State, 836 N.E.2d 1018, 1020 (Ind. Ct. App.
2005)), trans. denied.
[8] Indiana Code Chapter 34-47-2 defines direct contempt. 2 Both Indiana Code
Section 34-47-2-1 and Indiana Code Section 34-47-2-3 are relevant here.
Indiana Code Section 34-47-2-1 provides:
(a) Every person who disturbs the business and proceedings of a
court:
(1) by creating any noise or confusion;
(2) in a court of record; and
(3) while the court is open for and engaged in the
transaction of business;
is considered guilty of a direct contempt of court.
(b) This section applies to a disturbance caused:
2
Our Supreme Court has held that “judicial power to punish for contempt is inherent and ‘essential to the
existence and functioning of our judicial system,’ and legislature ‘has no power to take away or materially
impair it’ but ‘may regulate the exercise of the inherent contempt power by prescribing rules of practice and
procedure[.]’” In re A.S., 9 N.E.3d 129, 132 (Ind. 2014) (quoting LaGrange v. State, 238 Ind. 689, 692-93, 153
N.E.2d 593, 595 (1958)). Accordingly, “under the inherent power theory, the above statutory definitions of
contempt are not so all-inclusive as to exclude other acts or conduct which may constitute contempt.”
LaGrange, 238 Ind. at 694, 153 N.E.2d at 596.
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(1) by the commission of a felony, a misdemeanor, or an
other unlawful act;
(2) by talking, moving about, or by signs, or gestures; or
(3) in any other manner.
Ind. Code § 34-47-2-1.
[9] Indiana Code Section 34-47-2-3 provides:
A person:
(1) who:
(A) offers, gives, or promises any reward to;
(B) threatens to assault or injure;
(C) assaults or beats; or
(D) in any other manner influences, intimidates, or
attempts to influence;
any witness to give or abstain from giving testimony in any case,
or to abstain from attending as a witness in any case;
(2) who does any act to put a witness in fear, on account of
any testimony that the witness may have given; or
(3) who, on account of any testimony, injures or threatens
to injure a witness;
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is guilty of a direct contempt of the court in which the witness
may be called to testify, if the acts are done in the presence of the
court.
Ind. Code § 34-47-2-3.
[10] Morgan first argues that remand is required because the trial court lacked
personal knowledge of his actions, meaning that his actions amounted to
indirect contempt, not direct contempt. 3 Morgan contends that the trial court
was required to have personal knowledge of the contents of his alleged threats
to the police officer. Our Supreme Court has held that “[d]irect contempt
includes those ‘actions occurring near the court, interfering with the business of
the court, of which the judge has personal knowledge.’” In re Nasser, 644 N.E.2d
93, 95 (Ind. 1994) (quoting Hopping v. State, 637 N.E.2d 1294, 1296 (Ind. 1994),
cert. denied) (emphasis added).
[11] Morgan contends that the personal knowledge requirement should be construed
strictly so as to require that the judge hear the specific words of the disruptive
comments directly, and to be personally aware of their content. 4 It is enough
3
Contempt can be either direct or indirect. Indirect contempt “involves those acts ‘committed outside the
presence of the court which nevertheless tend to interrupt, obstruct, embarrass or prevent the due
administration of justice.” Reynolds, 64 N.E.3d at 832 (citing A.S., 9 N.E.3d at 132). We note the practical
difference that, while direct contempt findings may be entered summarily without formal charges or an
evidentiary hearing, due process protections lie for findings of indirect contempt. See Ind. Code § 34-47-3-5;
Ind. Code § 34-47-3-6 (entitling indirect contempt defendants to a hearing on a rule to show cause).
4
We note that the “personal knowledge” language did not generally appear in Indiana’s contempt
jurisprudence until the Hopping decision in 1994. 637 N.E.2d at 1296. Prior to 1994, the preferred language
for describing direct contempt was some variant of “in the presence of or so near to the court as to interrupt the
proceedings of the court.” Whittem v. State, 36 Ind. 196, 212 (Ind. 1871) (emphasis added); see also Snyder v.
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that the judge was personally aware that a comment or threat has been made
and that the comment or threat has disrupted the ordinary proceedings of the
court. “Any act related to a current or pending proceeding which tends to deter
the court from the performance of its duties may support a contempt
proceeding. Any act which manifests a disrespect and defiance of a court may
constitute direct criminal contempt.” Hopping, 637 N.E.2d at 1297 (citing
Brumbaugh v. State 491 N.E.2d 983, 984 (Ind. 1986)) (emphasis in original).
[12] There is no reasonable dispute as to whether the trial court judge had personal
knowledge that the proceedings were being disrupted; he did. That the judge
may not have understood the precise words used to cause the disturbance is of
no moment. Whatever the content of Morgan’s remarks, they interfered with
the business of the court, and were thus rightly punishable as “unseemly.”
Hunter, 102 N.E.3d at 329 (quoting City of Gary, 822 N.E.2d at 169).
[13] Morgan next argues that the evidence is insufficient to show that his actions
disrupted the proceedings or amounted to threats. We will only overturn a
finding of direct contempt, however, when “there is no evidence or inference
State, 151 Ind. 553, 52 N.E. 152, 152 (1898) (“A direct contempt is an act committed in the presence of the
court, or so near to it as to interrupt or disturb the proceedings thereof.”). We do not read our Supreme
Court’s selection of the “personal knowledge” language in Hopping as a decision to uproot more than a
century of consistent contempt jurisprudence. In distinguishing between direct and indirect contempt, the
core of the inquiry is, and always has been, whether the contemptuous acts occur so near the court as to
disturb its proceedings or undermine the judicial process. The “personal knowledge” language must not be
misunderstood—as it is by Morgan—to necessitate that a trial judge know every particular or detail
comprising the disturbance. Rather, it should properly be seen as an analogue for the true locus of the
analysis: proximity of the contemptuous acts resulting in an interruption of the business conducted by the
court.
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therefrom to support the finding.” Reynolds, 64 N.E.3d at 832 (quoting Steele-
Giri, 51 N.E.3d at 124) (emphasis added). Morgan’s comments occurred in the
courtroom, during the regular proceedings of the court, and immediately
disturbed those proceedings. Morgan’s comments necessitated bench
conferences, testimony from witnesses, and extensive commentary from the
judge. 5 As the judge aptly observed, Morgan’s actions “disturb[ed] the orderly
progression of court proceedings. We’ve had to take additional time. We’ve
had to take additional evidence just to deal with this one issue. [ ] [T]hat
disrupts all the other people that are here to get their cases resolved.” Tr. Vol. I
pp. 31-32. There is certainly both evidence and inference to support a finding of
direct contempt under Indiana Code Section 34-47-2-1; accordingly, we need
not address whether Morgan’s action constituted direct contempt under Indiana
Code Section 34-47-2-3. Morgan’s actions clearly disrupted the court
proceedings and constituted direct contempt.
Conclusion
[14] The trial court’s finding that Morgan was in direct contempt of court was not an
abuse of discretion. We affirm.
[15] Affirmed.
Kirsch, J., and Pyle, J., concur.
5
Of the thirty-one pages of transcript from the hearing devoted to actual court activity, nearly thirteen are
taken up by activities that would not have occurred but for Morgan’s disturbance.
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