Louis Etoch v. State of Arkansas

Louis ETOCH v. STATE of Arkansas

97-627                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 5, 1998


1.   Contempt -- criminal -- factors on review. -- Where fines were
     imposed and the punishment could not be avoided by an
     affirmative act, the case is one of criminal contempt; the
     standard of review in a case of criminal contempt requires the
     supreme court to view the record in the light most favorable
     to the trial judge's decision and to sustain that decision if
     it is supported by substantial evidence and reasonable
     inferences; if an act interferes with the order of the court's
     business or proceedings or reflects upon the court's
     integrity, that act is deemed contemptuous.

2.   Contempt -- when power of criminal contempt may be used --
     after proper objection attorneys should abide by court's
     ruling. -- A court's contempt power may be wielded to preserve
     the court's power and dignity, to punish disobedience of the
     court's orders, and to preserve and enforce the parties'
     rights; while an attorney may make a proper objection to a
     court's ruling, once made, the attorney should abide by that
     ruling so long as it remains in effect; an attorney should not
     engage in conduct that offends the dignity of the court. 

3.   Contempt -- criminal -- failure or refusal to abide by court's
     order -- supreme court does not look behind order to determine
     whether valid. -- Where the failure or refusal to abide by a
     court's order is the issue, the supreme court does not look
     behind the order to determine whether it is valid. 

4.   Contempt -- criminal -- erroneous decree does not excuse
     disobedience. -- The fact that a decree is erroneous does not
     excuse disobedience on the part of those bound by its terms
     until the order is reversed; a contempt proceeding does not
     open to reconsideration the legal or factual basis of the
     order alleged to have been disobeyed and thus become a retrial
     of the original controversy; the procedure to enforce a
     court's order commanding or forbidding an act should not be so
     inconclusive as to foster experimentation with disobedience.

5.   Contempt -- criminal -- court may look beneath order in
     limited circumstances. -- If the contemnor is making a
     legitimate and successful challenge to the validity of the
     order, the supreme court may look beneath the order and
     recognize substantive error as a defense to contempt; however,
     where the contemnor merely refused to comply with an order
     that was clearly within the court's jurisdiction and power,
     the supreme court will not look behind that order. 

6.   Contempt -- court order must be definite before one may be
     held in contempt for violating -- trial court found that
     appellant disobeyed clear order of court. -- A court order
     must be in definite, express terms, rather than implied,
     before a person may be held in contempt for violation of that
     order; here, trial judge believed his order was clear and that
     appellant deliberately disobeyed that order.

7.   Contempt -- contempt holding supported by substantial evidence
     -- no error found. -- Viewing the record in the light most
     favorable to the trial judge, there was substantial evidence
     to support the holding of contempt when the judge clearly
     instructed appellant that the language from the state medical
     examiner's report regarding crack cocoaine would not be
     allowed in because he believed it was extremely prejudicial
     and that the defendant had no knowledge that the drugs were on
     the victim's person; in clear defiance of that order,
     appellant proceeded to use the exact language during his
     cross-examination of the detective; the trial court did not
     err in holding appellant in contempt and in fining him
     $250.00.

8.   Appeal & error -- appellant lacked standing to raise issue --
     point not addressed on appeal. -- Appellant's argument that
     the trial court improperly prompted the State to move for a
     mistrial was not addressed where appellant lacked standing to
     raise the issue on appeal; appellant failed to explain how the
     trial court's ruling granting the State's motion for mistrial
     adversely impacted him, a necessary prerequisite to standing;
     neither did he cite authority or make a convincing argument in
     support of his position; appellant merely asserted that the
     trial court erred by prompting the State's motion for mistrial
     over the defendant's objection, and he failed to demonstrate
     his personal stake in the outcome of the controversy. 

9.   Mistrial -- assessment of fees argument not supported by
     argument or authority -- argument not addressed. --
     Appellant's contention that the trial court's assessment of
     fees for the costs of the trial constituted error was not
     addressed on appeal where appellant failed to offer any
     authority or convincing arguments in support of his assertion,
     and it was not apparent without further research that his
     argument was well taken. 


     Appeal from Monroe Circuit Court; Harvey Yates, Judge;
affirmed.
     Louis A. Etoch and Edward W. Chandler, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     W.H."Dub" Arnold, Chief Justice.
     This case presents a question regarding the discipline of
attorneys-at-law.  The primary issue on appeal arises from the
Monroe County Circuit Court's order holding Louis Etoch in contempt
of court and fining him $250.00.  First, Etoch challenges this
contempt order.  Second, Etoch contends that the trial court
erroneously prompted the State to move for a mistrial.  Third,
Etoch contests the trial court's charging him $780.00 in juror fees
after granting the State's motion for mistrial.  Finding no merit
in appellant's arguments, we affirm the trial court's contempt
order and its order assessing defense counsel juror fees.
     Attorneys Louis Etoch and Edward Chandler represented Kimberly
Whitaker in criminal charges relating to the death of Jamison
Williams.  Whitaker was initially charged as an accomplice to
capital murder, but the charges were later reduced to accomplice to
first-degree murder.  During her trial before the Monroe County
Circuit Court, which preceded Devrick "Dee" Meachum's trial for the
capital murder of Jamison, Whitaker's defense attorneys suggested
that if Whitaker was an accomplice to Meachum, Meachum was acting
in self-defense.
     In furtherance of its theory, defense counsel Etoch attempted
to elicit certain testimony from the State's first witness,
Detective Tim Prestwood, the police officer in charge of the
Jamison murder investigation.  Prior to trial the State and defense
counsel had agreed to stipulate to an autopsy report prepared by
the state medical examiner.  The medical examiner's report included
the following notation: "Recovered loosely on the right testicle a
plastic bag containing multiple gray-white crystalline, irregular,
drug-like material."
     Subsequently, the State filed a motion in limine requesting
that the language, regarding what was determined to be 1.7 grams of
crack cocaine, be struck from the medical examiner's report. 
Defense counsel objected to the exclusion, arguing that the
evidence was relevant to their theory of the case, particularly
that the language demonstrated evidence of the victim's violent
character.  Specifically, the defense contended that the evidence
was relevant to the issue of who was the aggressor and whether or
not the accused, Whitaker, reasonably believed she was in danger of
suffering unlawful deadly physical force.  After hearing counsels'
arguments, Judge L.T. Simes, II, held that the language regarding
the drugs "does not come in" and that the defendant, Whitaker,
could not have known at the time of the killing that Jamison had
1.7 grams of cocaine on his right testicle.
     During the State's direct examination of Detective Prestwood,
Prestwood testified that his investigation indicated that the
victim was entering Ned's Caf at the time of the shooting and that
he had been shot from behind.  On cross-examination, Etoch
attempted to impeach Detective Prestwood's statement by asking the
following question:
     You know Jamison Williams could not enter Ned's Caf because
     of those pictures right there (indicating).  Ned does not
     allow anyone in his caf who had drugs on them, and Jamison
     had 1.7 grams of crack on him when he died, didn't he?
Etoch was referring to a sign by the front door of Ned's Caf that
stated, "You cannot bring liquor or drugs inside" and the medical
examiner's discovery of the 1.7 grams of crack cocaine on the
victim's testicle.
     Following the State's objection to Etoch's question, Judge
Simes moved the discussion to his chambers, outside the presence of
the jury.  After allowing the attorneys an opportunity to respond
on the record, Judge Simes recalled his ruling on the State's
motion in limine.  He reiterated that he had examined the Arkansas
Supreme Court rules and had advised the parties that he believed
the stricken language to be extremely prejudicial.  He advised the
attorneys that he had ruled on the issue and now found that Etoch
had disregarded that ruling.
     Moreover, Judge Simes concluded that Etoch's conduct was
deliberate with respect to how the question was phrased,
particularly in his reference to the items of cocaine.  Judge Simes
deduced that there was no misunderstanding about his ruling but
that defense counsel disagreed with the court's ruling and
strategically decided to proceed.  Judge Simes also noted that
defense counsel did not seek further instructions from the court
but specifically went into an area specifically prohibited. 
Accordingly, the trial judge found Etoch in contempt of court for
intentionally disregarding the court's order and fined him $250.00.
     Where fines were imposed, as here, and the punishment could
not be avoided by an affirmative act, the case is one of criminal
contempt.  The standard of review in a case of criminal contempt
requires this Court to view the record in the light most favorable
to the trial judge's decision and to sustain that decision if it is
supported by substantial evidence and reasonable inferences. 
Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).  If an act
interferes with the order of the court's business or proceedings or
reflects upon the court's integrity, that act is deemed
contemptuous.  A court's contempt power may be wielded to preserve
the court's power and dignity, to punish disobedience of the
court's orders, and to preserve and enforce the parties' rights. 
Moreover, while an attorney may make a proper objection to a
court's ruling, once made, the attorney should abide by that ruling
so long as it remains in effect.  An attorney should not engage in
conduct that offends the dignity of the court.  Hodges, 321 Ark. at
14.
     Significantly, where the failure or refusal to abide by a
court's order is the issue, this Court does not look behind the
order to determine whether the order is valid.  Carle v. Burnett,
311 Ark. 477, 845 S.W.2d 7 (1993).  In Carle, the appellant argued
that his constitutional and statutory rights were impinged because
the judge conducting the contempt proceedings refused to consider,
in defense of the appellant's contempt charge, that the trial court
abused its discretion in ordering appellant to proceed to trial. 
Responding to the appellee's contention that the judge had made a
finding that the trial court had not abused its discretion, this
Court noted the long-settled law that we do not look at the
validity of the underlying order.  Carle, 311 Ark. at 480.
     This Court's decision in Carle recalled an earlier decision in
Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906), where we upheld a
contempt order and refused to review the underlying order.  In
Meeks, we declared that the fact that a decree was erroneous would
not excuse disobedience on the part of those bound by its terms
until the order was reversed.  Meeks, 80 Ark. at 582.  The United
States Supreme Court agreed with this principle in United States v.
Rylander, 460 U.S. 752 (1983), when it stated:
     It would be a disservice to the law if we were to depart from
     the long-standing rule that a contempt proceeding does not
     open to reconsideration the legal or factual basis of the
     order alleged to have been disobeyed and thus become a retrial
     of the original controversy.  The procedure to enforce a
     court's order commanding or forbidding an act should not be so
     inconclusive as to foster experimentation with disobedience.
Rylander, 460 U.S.  at 756-57 (quoting Maggio v. Zeitz, 333 U.S. 56,
69 (1948)).  
     Notably, there are exceptions to this general rule.  If the
contemnor was making a legitimate and successful challenge to the
validity of the order, we may look beneath the order and recognize
substantive error as a defense to contempt.  See Carle, 311 Ark. at
481-82.  However, where the contemnor merely refused to comply with
an order that was clearly within the court's jurisdiction and
power, we will not look behind that order.  Id. at 482.
     A court order must be in definite, express terms, rather than
implied, before a person may be held in contempt for violation of
that order.  Hodges, 321 Ark. at 17.  Here, the trial court
thoroughly visited, during the pre-trial discussion of the State's
motion in limine, the issue of the exclusion of the language
regarding the crack cocaine.  Again, at the time of the State's
objection to Etoch's cross-examination of Detective Prestwood, the
trial judge discussed in chambers his prior ruling and gave each
party time to respond on the record before reiterating his ruling. 
The trial judge believed his order was clear and that Etoch
deliberately disobeyed that order.
     Viewing the record in the light most favorable to the trial
judge, there is substantial evidence in the case at bar to support
the holding of contempt when Judge Simes clearly instructed Etoch
that the language from the state medical examiner's report
regarding the crack cocaine "does not come in" because he believed
it was extremely prejudicial and that the defendant, Whitaker, had
no knowledge that the drugs were on the victim's person.  In clear
defiance of that order, Etoch proceeded to use the exact language
during his cross-examination of Detective Prestwood.  Accordingly,
we find that the trial court did not err in holding Etoch in
contempt and in fining him $250.00.
     Etoch also assigns as error the trial judge's comments made
prior to the State's motion for mistrial.  Specifically, Judge
Simes remarked, "I think you all are getting too involved in the
defense of your case and making speculations and innuendoes before
the jury.  The prosecution has not asked for a mistrial, but I want
you to know that I think I might grant one anyway."  Etoch argues
that, in this manner, the trial court improperly prompted the State
to move for a mistrial.  However, Etoch lacks standing to raise
this particular issue on appeal because he fails to explain how the
trial courtþs ruling granting the Stateþs motion for mistrial
adversely impacted him, a necessary perquisite to standing.  See
Goodwin v. Harrison, 300 Ark. 474, 483, 780 S.W.2d 518 (1989). 
Neither does Etoch cite authority or make a convincing argument in
support of his position, urging this Court to vicariously review
the merits of the trial courtþs order in the absence of the
defendant as the real party in interest.  Etoch merely asserts that
the trial court erred by prompting the Stateþs motion for mistrial
over the defendantþs objection, and he fails to demonstrate his
personal stake in the outcome of the controversy.  Accordingly, we
decline to address appellantþs second point on appeal.  See
Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).
     In any event, the trial court's order granting the State's
motion for mistrial cited Etoch's deliberate violation of the
court's ruling regarding the crack cocaine reference and his
continued improper comments and characterizations about testimony
and evidence, in spite of the court's rulings sustaining the
State's objections.  Furthermore, the trial court found that
Etoch's responses to the State's objections were not posed as legal
arguments but constituted attempts to present the jury with
objectionable and inadmissible information.  The trial judge
considered that the cumulative effect on the jury of defense
counsels' misconduct tainted the jury and deprived the State of a
fair trial.
     At the close of its order granting the State's motion for
mistrial, the trial judge concluded that the mistrial was a result
of defense misconduct and assessed defense attorneys the costs of
the trial, namely, juror fees in the amount of $780.00.  In his
third point on appeal, Etoch contends that this assessment
constitutes error.  However, Etoch fails to offer any authority or
convincing arguments in support of his assertion, and it is not
apparent without further research that his argument is well taken. 
Accordingly, we will not consider this point on appeal.  See
Williams, at 325 Ark.
     In conclusion, we affirm the trial court's contempt order,
$250.00 fine, and its order assessing defense counsel juror fees in
the amount of $780.00.