State v. Conliff , 61 Ohio App. 2d 185 ( 1978 )

Although I concur in the judgment insofar as it affirms the conviction of disorderly conduct and reverses the conviction of contempt, I must respectfully dissent from the judgment to the extent that it directs that defendant be discharged from the contempt order and would remand for a new trial upon that charge. Also, in keeping with App. R. 12(A), I feel that the first assignment of error should be considered on its merits rather than overruled as harmless, if error.

By the first assignment of error, defendant contends that the Common Pleas Court (not the trial court) erred in overruling his affidavit of prejudice.

The record reflects that on March 1, 1978, the trial court entered an order stating that the defense would be conducted by defendant's attorneys, found to be competent counsel, and that defendant would not be permitted to participate as additional "counsel" noting that he is "not entitled to hybrid representation." In the order, the trial court noted that it had come to its attention from newspaper articles and statements of defendant "that the defendant intends to use his trial on these cases as a means of social protest and that defendant is not concerned with whether he is convicted of these charges."

On March 10, 1978, defendant filed his affidavit of prejudice which was founded, inter alia, upon this order, stating in part that the order was based upon newspaper articles and other information without allowing defendant to respond thereto. The record includes a transcript of proceedings of a hearing held March 2, 1978, at which defendant was permitted to make statements to the court, after the court related the newspaper articles in question. Defendant stated (March 2):

"No, Sir, I'm not going to deny that I made that statement. As statements go in the press, they are reasonably accurate; however, it is taken slightly out of context. I didn't make this statement in regard to my role as co-counsel. * * *"

Defendant further stated, referring to a newspaper article (March 2):

"* * * The first sentence of the third paragraph, `Through the incident Conliff hopes to force a confrontation with the governor by putting him on the witness stand at the assault trial. Conliff has already received permission to serve as his own counsel and he intends to put Rhodes to the boards.' Now, that was one statement that I made to them. Along about 30 minutes later, in the course of a give and take conversation, I said — and I say this is an accurate quote — and I don't remember what the question had to do with, but it didn't have to do with representation. At that time, I said, you know — `cause I think the question now that I think a bit, was pretty much that, "Are you planning on going to jail?" And at that time, I responded, "I don't care much whether I get convicted or not."'"

The affidavit of prejudice further alleged that the trial judge was prejudiced against defendant and in favor of the alleged victim of the alleged crime, Governor James A. Rhodes. The affidavit alleged that the trial judge was appointed by Governor Rhodes, and the judge has the Governor's picture in his office; that the trial judge had, at an earlier hearing, admonished defendant that the judge "would not allow a circus to be conducted in his courtroom," also as a result of a newspaper article; that the trial judge had limited a subpoena issued to Governor Rhodes but had later reconsidered, but had stated that "Mr. Rhodes by virtue of his office is different than other witnesses and that special consideration need be given to the demands of his office in determining whether he would be required to appear"; and that the trial judge had refused to reduce defendant's $700 bond previously set by another judge, the bond being $500 in one case and $200 in the other.

Underlying the affidavit of prejudice is a patent misunderstanding as to the nature of the crime with which defendant was charged (and ultimately found not guilty) in the assault case, as indicated by various statements and motions of defense counsel as well as by statements of defendant.

In the assault case, the charge was that defendant "did knowingly attempt to cause physical harm to another to wit: Governor James A. Rhodes, by means of striking him about the head and shoulder with a pie, in violation of R. C. 2903.13(A)." Later the charge was amended to delete the words "attempt to."

R. C. 2903.13(A) provides:

"No person shall knowingly cause or attempt to cause physical harm to another."

R. C. 2901.01(C) defines the nature and extent of the physical harm necessary to constitute a violation of R. C.2903.13(A), by stating:

"Physical harm to persons' means any injury, illness, or other physiological impairment, regardless of its gravity orduration." (Emphasis added.)

Under this definition, the temporary discomfort necessarily inherent as the result of being struck on the head and shoulder by a pie is sufficient to constitute the physical harm element of R. C. 2903.13(A).

Defendant, however, filed numerous motions and made many statements, both through counsel and on his own behalf, in an apparent effort to indicate that the physical harm was not of a serious nature and not of long duration. This was irrelevant to the issue of defendant's guilt as apparently contended by defendant, although perhaps relevant to punishment in the event defendant had been found guilty. Defendant's counsel, in support of a motion to dismiss, contended that it could not reasonably be found "that a banana cream pie would cause injury to a person with whom it had contact." (January 23.) Defendant stated: "* * * I didn't assault anybody. I threw a pie at a man. * * *" (March 2.) Many of the situations referred to in the affidavit of prejudice were apparently prompted by this misunderstanding that a more serious injury is necessary to constitute the physical harm element of R. C. 2903.13(A). The trial judge, however, rather than strictly limiting defendant to the statutory definition, apparently permitted him much greater latitude, at least in trial preparation, in view of the rulings and statements that are in the record, which tends to negate the prejudice alleged. Had the nature of the charge been fully understood, perhaps many of the motions, rulings, and comments would have been avoided.

As to affording the Governor greater deference than might be afforded an ordinary citizen, it must be remembered that the Governor, whoever he may be, is not an ordinary citizen in his official capacity. Rather, he is the Governor, the chief executive of the state. Under the doctrine of separation of powers, courts are required to give some consideration to the Governor in his official capacity so as not to unduly interfere with the performance of his official duties. There is no indication in the record that the trial judge did more or that he gave special consideration to the alleged victim in his personal or private capacity.

From the record before us, there appears to be no merit to the affidavit of prejudice. Although the trial judge may have erred procedurally with respect to some of his rulings, such error does not support an affidavit of prejudice.

Furthermore, it is doubtful that this issue is properly before us upon this appeal inasmuch as, pursuant to R. C.2937.20, disqualification proceedings are to be conducted in the Common Pleas Court. See, however, White v. Hicks (1961),118 Ohio App. 56, holding an order of disqualification not to be appealable and implicitly suggesting an appeal from the final judgment of the municipal court. However, assuming the issue is properly before us, the first assignment of error should be overruled.

With respect to the third assignment of error, I concur generally in the reasoning of the majority for the sustaining of that assignment. The record before us is insufficient to demonstrate a direct contempt punishable by a summary action of the trial judge. However, I cannot concur in the finding that the record is insufficient to support a charge of contempt.

Defendant's ounce-of-flesh comment presumably was a play on the infamous pound-of-flesh contract involved in Shakespeare'sMerchant of Venice. As such, depending upon the totality of the circumstances, it could constitute such an attack upon the administration of justice as to constitute punishable contempt, and more than a mere personal comment directed at the judge. Such factors as defendant's tone of voice, facial expression, if any, and physical gestures, if any, are not in the record. Nor does the record reflect whether those present could easily hear the remark. Although the court reporter apparently did not record the remark, she also did not record any statements or comments by others which were probable in light of the trial judge's statement: "as soon as we have some order in the courtroom." A charge of contempt under such circumstances should not be finally determined except upon a full ventilation of the facts. In re Little (1972), 404 U.S. 554, indicates that words spoken in the courtroom can constitute contempt under appropriate circumstances, stating with respect to the defendant's calling the trial judge a vile name: "this language in a courtroom is, of course, reprehensible and cannot be tolerated."

However, in accordance with Mayberry v. Pennsylvania (1971),400 U.S. 455, the contempt proceedings should be a public trial before a judge other than the one who is the subject of the alleged contemptuous remark. I would remand for such a public trial.