ROBERT TARRANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1989-01-06
No. 88-1134
DANAHY, A.C.J., and SCHNOONOVER, J., concur.
537 So. 2d 150 Florida District Court of Appeal, Second District (1989) Positive Treatment
Cited by 6 cases

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Synopsis

Robert Tarrant, a defense attorney, was adjudicated guilty of two counts of direct criminal contempt for conduct during closing argument in a drug trial. The Florida Second District Court of Appeal reversed the contempt conviction on the first count (fair comment on evidence) but affirmed on the second count (personal attacks on the prosecutor).


Holding

The court reversed the contempt conviction on the first ground because Tarrant's remarks were fair comment upon admitted evidence and logical inferences therefrom, which are permissible in closing argument. The court affirmed the contempt conviction on the second ground because Tarrant's repeated and extended personal attacks on the prosecutor's integrity were improper, unethical, and facially contemptuous conduct that lessens the dignity of the court.


Headnotes

[1] An attorney's closing argument comments on admitted evidence and permissible inferences therefrom are not contemptuous.

[2] An attorney's personal attacks on the integrity and credibility of opposing counsel, rather than addressing factual or legal issues, are improper, unethical, and can cons…

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Key Quotes

“Contempt is "any act which is calculated to embarrass, hinder, or obstruct courts in the administration of justice, or which is calculated to lessen its authority or dignity."”

Establishes the legal definition of contempt of court used throughout the opinion

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Facts & Procedural History

During closing argument in a drug trafficking trial, Tarrant was the defense attorney for three defendants. The trial court held a Rule 3.850 hearing …

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Tarrant appeals a judgment and sentence in which he was adjudicated guilty of two counts of direct criminal contempt resulting in sentences of fines, or, in the event the fines were not paid, a jail sentence. We reverse the judgment and sentence as to one count and affirm as to the other count.

Tarrant was the defense attorney for three defendants in a drug trafficking trial. Following final argument and the jury charge, the trial court, pursuant to Florida Rule of Criminal Procedure 3.850, inquired of Tarrant why he should not be held in direct criminal contempt. The first ground asserted by the trial court was Tarrant’s final argument to the jury concerning a certain exhibit which had been admitted into evidence. The second ground asserted by the trial court was Tarrant’s personal attack upon the assistant state attorney during final argument.

As to the first ground, the exhibit was a jail visitation log which indicated that the assistant state attorney prosecuting the case, Susan Sexton, had signed in at the jail on October 25, 1986, was there for three hours, and that the purpose of the visit was to interview Sisto Monserrat, an inmate. Monserrat, who testified for the state on October 27, 1986, stated that he had spoken to Sexton only once two weeks earlier. Sexton asserted at a side bar conference with the judge and Tarrant that in spite of the jail log, she had not spoken with Monserrat on the date indicated by the log and, instead, had been at the jail to speak to another witness. Over the state’s objection, the trial court admitted the jail log as a business record for the purpose of proving the substance of what the log purported to show on its face; that is, the assistant state attorney visited Monserrat on that day. The trial judge stated Sexton could testify, if she wished, to rebut the document. Sexton, however, did not testify, and she failed to call any witness to rebut the jail log. Tarrant utilized the jail log during closing argument to attempt to convince the jury that Sexton visited Mon-serrat shortly before Monserrat testified, thereby discrediting Monserrat’s statement as to when he talked with Sexton.

Contempt is “any act which is calculated to embarrass, hinder, or obstruct courts in the administration of justice, or which is calculated to lessen its authority or dignity_” Clein v. State, 52 So. 2d 117, 119 (Fla.1950). The first ground for contempt cannot stand because it was a fair comment upon the evidence. The rule in Florida is that “considerable latitude is allowed in arguments on the merits of the case. Logical inferences from the evidence are permissible.” Thomas v. State, 326 So. 2d 413, 415 (Fla.1975) (emphasis deleted). Based upon the facts that the exhibit was admitted into evidence and Monserrat’s testimony, Terrant’s remarks during closing argument were addressed to the evidence and were not contemptuous.

The second ground for contempt concerned Tarrant’s remarks in closing argument directed toward Sexton. Tarrant referred to the jail log and noted that Sexton signed in for a three hour visit with Mon-serrat during the trial. Thereafter, Tar-rant accused Sexton of lying and cheating in concert with Monserrat in that Sexton knew Monserrat was lying and failed to disclose it. Tarrant further stated the judge was stopping the prosecutor from cheating when he sustained 400 defense objections. Tarrant continued by asking the jury if they would play miniature golf with the prosecutor. Tarrant commented that the jury would need an impartial observer to watch Sexton constantly to stop her from cheating by kicking the ball. Tar-rant characterized the prosecutor’s trial tactics as “[l]et’s see if we can cheat some more today_ Cheat, cheat, cheat.” Tarrant asked the jury if they would buy a used car from the prosecutor, telling the jury they would need the Department of Transportation to inspect the car. Tar-rant’s concluding remarks against Sexton were as follows:

Do you recall when we started out, I referred to her as a lady throughout all the talk, and she then became a woman, and later on she became a female.

Well, I believe in calling a spade a spade, and I believe in giving somebody the benefit of the doubt until I find out they are cheaters; and when I find out they are cheaters, I realize they can’t be ladies either. I have never met a lady that was a cheater, but I have met a lot of women that were cheaters, and I think you all have gotten to see one right there. You have gotten to see one try and try again to cheat right before your eyes.

But she needs to cheat in this case because there is no evidence other than some other cheaters. There is just a gang of cheaters that she has become associated with.

It is improper and unethical for counsel to attack the personal integrity and credibility of opposing counsel instead of trying the factual and legal issues. Briggs v. State, 455 So. 2d 519 (Fla. 1st DCA 1984). We think it is elementary that conduct of an attorney which is improper and unethical lessens the dignity of the court under the standard set forth in Clein and, as such, is grounds for contempt. Other jurisdictions have recognized that abusive or insulting language directed toward opposing counsel at trial constitutes contemptuous conduct. Eizerman v. Behn, 9 Ill.App.2d 263, 274, 132 N.E. 2d 788, 799 (1956); State ex rel. Cary v. District Court of Hennepin County, 110 Minn. 446, 447, 125 N.W. 1020, 1020 (1910).

A trial judge should exercise his power to adjudge one in contempt with care and circumspection. State v. Clemmons, 150 So. 2d 231 (Fla.1963). Generally, a trial judge is required to caution or warn an attorney that the attorney’s actions can result in contempt. Carroll v. State, 327 So. 2d 881 (Fla. 3d DCA 1976). However, when the conduct is contemptuous on its face, a warning is not required. In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 129, 514 P. 2d 1201, 1209 (1973), cert. denied, 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156 (1974); State v. Johnson, 171 Wash. 388, 389, 18 P. 2d 35, 37 (1933). We find that Tarrant’s conduct was facially contemptuous. There are nine pages of trial transcript containing repeated personal attacks against opposing counsel. Such practice before a court cannot be condoned.

It can be argued that the trial judge should have warned Tarrant. It can also be argued that opposing counsel should have objected to this character denigration. Both arguments have merit. The contemptuous conduct, however, occurred when the words were uttered, and one could not unring the bell. We realize that in the heat of high emotions during a trial, an improper statement by an attorney may occur. When this happens, it should be addressed immediately by the trial court, with or without an objection from opposing counsel. Ailer v. State, 114 So. 2d 348 (Fla. 2d DCA 1959). Tarrant’s continued improper and unethical behavior was not an isolated incident of improper behavior, and such outrageous conduct before a trial court deserves a finding of contempt.

Accordingly, we reverse the trial court’s judgment and sentence of contempt as to the first ground and affirm the judgment and sentence as to the second ground.

AFFIRMED IN PART; REVERSED IN PART.

DANAHY, A.C.J., and SCHNOONOVER, J., concur.


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Citator

Cited By

  • Thomas v. State, 752 So. 2d 679 (Fla. 1st DCA 2000)
    …riminal contempt results from conduct committed in the presence of a judge; indirect criminal contempt concerns conduct that has occurred outside the presence of the judge that violates a court order. (Citations omitted); see also Tarrant v. State, 537 So. 2d 150, 152 (Fla. 2d DCA 1989)(finding it “elementary that conduct [*686] of an attorney which is improper and unethical lessens the dignity of the court Similarly, in Thompson v. State, 618 So. 2d 781 (Fla. 5th DCA 1993), the court observed that criminal…
  • Emilio Lombardo Ippolito and Susan L. Mokdad v. State, 678 So. 2d 381 (Fla. 2d DCA 1996)
    …viction 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 motio…
  • Foxworth v. State, 754 So. 2d 798 (Fla. 2d DCA 2000)
    …ograph the scene. The prosecutor’s arguments were merely an attempt to explain why the officers had not videotaped or photographed the scene. There is no error here. The prosecutor’s argument was proper comment on the evidence. See Tarrant v. State, 537 So. 2d 150 (Fla. 2d DCA 1989). Appellant argues next that the court erred in sentencing him using an erroneous scoresheet. Although appellant failed to raise this issue below, we believe that under Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999), this was f…

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