U.S. Supreme Court
Eaton v. City of Tulsa, 415
U.S. 697 (1974)
Eaton v. City of Tulsa
No. 73-5925
Decided March 25, 1974
415
U.S. 697
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF OKLAHOMA
Syllabus
Petitioner was convicted of criminal contempt for referring to
his alleged assailant as "chicken shit" in answering a question on
cross-examination at his trial for violating a Tulsa, Oklahoma,
ordinance. The Oklahoma Court of Criminal Appeals affirmed,
rejecting petitioner's contention that the conviction must be taken
as resting solely on the use of the explective, and holding that,
since the record showed that petitioner, in addition to using the
explective, made "discourteous responses" to the trial judge, there
was sufficient evidence upon which the trial court
could
find petitioner in direct contempt.
Held:
1. The single isolated usage of street vernacular, not directed
at the judge or any officer of the court, cannot constitutionally
support the contempt conviction, since, under the circumstances, it
did not "constitute an imminent . . . threat to the administration
of justice."
Craig v. Harney, 331 U.
S. 367,
331 U. S.
376.
2. Where the trial court's judgment and sentence disclosed that
the conviction rested on the use of the explective only, the Court
of Criminal Appeals, in relying on petitioner's additional
"discourteous responses," denied petitioner constitutional due
process in sustaining the trial court by treating the conviction as
one upon a charge not made.
Certiorari granted; reversed and remanded.
PER CURIAM.
In answering a question on cross-examination at his trial, in
the Municipal Court of Tulsa, Oklahoma, for violating a municipal
ordinance, petitioner referred to an alleged assailant as "chicken
shit." In consequence, he was prosecuted and convicted under an
information that charged him with "direct contempt," in violation
of another Tulsa ordinance, "by his insolent behavior during open
court and in the presence of [the judge],
Page 415 U. S. 698
to it: by using the language
chicken-shit.' . . ." The
Oklahoma Court of Criminal Appeals, in an unreported order and
opinion, affirmed.
This single isolated usage of street vernacular, not directed at
the judge or any officer of the court, cannot constitutionally
support the conviction of criminal contempt.
"The vehemence of the language used is not alone the measure of
the power to punish for contempt. The fires which it kindles must
constitute an imminent, not merely a likely, threat to the
administration of justice."
Craig v. Harney, 331 U. S. 367,
331 U. S. 376
(1947). In using the explective in answering the question on
cross-examination.
"[i]t is not charged that [petitioner] here disobeyed any valid
court order, talked loudly, acted boisterously, or attempted to
prevent the judge or any other officer of the court from carrying
on his court duties."
Holt v. Virginia, 381 U. S. 131,
381 U. S. 136
(1965);
see also In re Little, 404 U.
S. 553 (1972). In the circumstances, the use of the
explective thus cannot be held to "constitute an imminent . . .
threat to the administration of justice."
In affirming, however, the Court of Criminal Appeals rejected
petitioner's contention that the conviction must be taken as
resting solely on the use of the explective. Rather, that court
concluded from its examination of the trial record that, in
addition to the use of the expletive, petitioner made "discourteous
responses" to the trial judge. The court therefore held that the
conviction should be affirmed because
"[c]oupling defendant's explective with the discourteous
responses, it is this Court's opinion there was sufficient evidence
upon which the trial court
could find defendant was in
direct contempt of court."
(Emphasis supplied.)
However, the question is not upon what evidence the trial judge
could find petitioner guilty, but upon what evidence the
trial judge
did find petitioner guilty. There
Page 415 U. S. 699
is no transcript of the contempt proceeding, since the
proceeding was not stenographically recorded. The trial judge did,
however, enter a "Judgment and Sentence," and we read that document
clearly to establish that the trial judge rested the conviction
upon the use of the explective only. For the single charge of
"insolent behavior" specified in the information was "to-wit: by
using the language
chicken-shit' . . . ," and the Judgment and
Sentence, referring expressly to the information, records that
petitioner was "duly and legally tried and convicted of said
offense," and, further, that "the Court does now hereby
adjudge and sentence the said defendant for the said
offense by him committed." (Emphasis supplied.) The Court of
Criminal Appeals thus denied petitioner constitutional due process
in sustaining the trial court by treating the conviction as a
conviction upon a charge not made. Cole v. Arkansas,
333 U. S. 196
(1948). *
Page 415 U. S. 700
The motion to proceed
in forma pauperis and the
petition for certiorari are granted, the judgment is reversed, and
the case is remanded for further proceeding not inconsistent with
this opinion.
It is so ordered.
* Assuming,
arguendo, (1) that the information
sufficiently charged petitioner for both use of the explective and
his allegedly "discourteous responses," and (2) that there was
evidence of the latter offense, reversal is still required, since
the record fails to "negate the possibility,"
Street v. New
York, 394 U. S. 576,
394 U. S. 588
(1969), that the conviction was based solely or in part on the use
of the explective.
"[W]hen a single-count . . . information charges the commission
of a crime by virtue of the defendant's having done both a
constitutionally protected act and one which may be unprotected,
and a guilty verdict ensues without elucidation, there is an
unacceptable danger that the trier of fact will have regarded the
two acts as 'intertwined,' and have rested the conviction on both
together."
Ibid. Cf. Stromberg v. California,
283 U. S. 359
(1931);
Thomas v. Collins, 323 U.
S. 516 (1945);
Bachellar v. Maryland,
397 U. S. 564
(1970). And this principle is not limited, nor should it be, to
cases in which the conviction may have been based on protected
speech.
See Williams v. North Carolina, 317 U.
S. 287,
317 U. S.
291-292 (1942). Here, the "Judgment and Sentence" not
only does not dispel the possibility that petitioner's conviction
was based solely or partially on the use of the explective, but
plainly supports the opposite conclusion.
MR. JUSTICE POWELL, concurring.
I concur in the Court's per curiam opinion. I write briefly only
to make clear my understanding of the limited scope of its holding.
Whether the language used by petitioner in a courtroom during trial
justified exercise of the contempt power depended upon the facts.
Under the circumstances here, the imposition of a contempt sanction
against petitioner denied him due process of law.
The phrase "chicken shit" was used by petitioner as a
characterization of the person whom petitioner believed assaulted
him. As noted in the Court's opinion, it was not directed at the
trial judge or anyone officially connected with the trial court.
But the controlling fact, in my view, and one that should be
emphasized, is that petitioner received no prior warning or caution
from the trial judge with respect to court etiquette. It may well
be, in view of contemporary standards as to the use of vulgar and
even profane language, that this particular petitioner had no
reason to believe that this explective would be offensive or in any
way disruptive of proper courtroom decorum. Language likely to
offend the sensibility of some listeners is now fairly commonplace
in many social gatherings as well as in public performances.
I place a high premium on the importance of maintaining civility
and good order in the courtroom. But
Page 415 U. S. 701
before there is resort to the summary remedy of criminal
contempt, the court at least owes the party concerned some sort of
notice or warning. No doubt there are circumstances in which a
courtroom outburst is so egregious as to justify a summary response
by the judge without specific warning, but this is surely not such
a case.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
The Court summarily reverses petitioner's conviction for
contempt of court on the grounds that the explective which
petitioner used could not, by itself, constitute a contempt, and
that the additional "discourteous responses" petitioner made to the
trial judge could not be properly considered by either the
Municipal Court of Tulsa or the Oklahoma Court of Criminal Appeals,
which affirmed petitioner's conviction. I disagree with the Court
as to each of these grounds.
I
Even the Court appears to shy away from a flat rule, analogous
to the hoary doctrine of the law of torts that every dog is
entitled to one bite, to the effect that every witness is entitled
to one free contumacious or other impermissible remark. The Court,
quoting language from
Holt v. Virginia, 381 U.
S. 131,
381 U. S. 136
(195), says that "
[i]t is not charged that [petitioner] here .
. . talked loudly, acted boisterously, or attempted to prevent the
judge or any other officer of the court from carrying on his court
duties.'" But we do not have any transcript of petitioner's trial
for contempt, and we simply do not know whether the evidence in
that trial may or may not have shown that petitioner "talked
loudly" or "acted boisterously" in the course of his rather unusual
colloquy with the judge. Respondent, in its brief in
opposition,
Page 415 U. S. 702
certainly makes no concession in petitioner's favor. If, as
appears likely, neither party is in a position to furnish any
judicially cognizable account of the petitioner's contempt trial,
this hiatus in the record cannot be filled in by what amounts to no
more than speculation in favor of petitioner's position:
"If the result of the adjudicatory process is not to be set at
naught, it is not asking too much that the burden of showing
essential unfairness be sustained by him who claims such injustice
and seeks to have the result set aside, and that it be sustained
not as a matter of speculation, but as a demonstrable reality."
Adams v. United States ex rel. McCann, 317 U.
S. 269,
317 U. S. 281
(1942).
See Stroble v. California, 343 U.
S. 181,
343 U. S. 198
(1952).
II
Having assumed that the "single explective" uttered by
petitioner could not, by itself, constitutionally constitute a
contempt, the Court goes on to hold that the Court of Criminal
Appeals' reliance on petitioner's discourteous additional remarks
during the course of his colloquy with the trial court, amounted to
"treating the conviction as a conviction upon a charge not made,"
in violation of
Cole v. Arkansas, 333 U.
S. 196 (1948). While we do not have the transcript of
the contempt trial, the record does show the colloquy which
occurred between petitioner and the trial judge in the Municipal
Court during petitioner's trial for an alleged violation of a Tulsa
ordinance. During cross-examination in response to a question asked
him by the assistant city prosecutor, the following exchange
occurred (emphasis supplied):
"Q. What did you do?"
"A. I sensed something from behind me, and I turned maybe enough
to look over my shoulder. At
Page 415 U. S. 703
the time I turned and looked over my shoulder, I could see this
guy's face and shoulders coming at me; almost simultaneously, he
hit me and he knocked me over on my back a bench down. Luckily,
somebody grabbed him and pulled him back, and I got up off of my
back after being knocked down on my back, wrenched my elbow, got up
to a vertical posture where I would have some kind of defensibility
and moved up to where I had some square footing."
"Q. What's defensibility?"
"A. I think that would be a place where you were able to get
your feet to stand square so you would be half ready for some
chicken shit that had jumped you from behind."
"THE COURT: Mr. Eaton, you will have until tomorrow morning to
show me why you should not be held in direct contempt of this
Court. I'm not going to put up with that kind of language in this
Court."
"THE WITNESS:
That's fine. I don't feel as though I need to
put up with why I received this."
"THE COURT: Mr. Eaton, did you hear what I just said?"
"THE WITNESS: Yes, sir."
"THE COURT: That kind of language you used in this Court, I will
not put up with any more of that talk in this courtroom. That was
not responsive to any type of question whatsoever, and I'm not
going to have profanity in this courtroom, and you're going to be
held in direct contempt of this Court unless you can show me, by
tomorrow morning, cause why you should not be."
"THE WITNESS:
Fine. I'm not going to show you anything in
the morning any more than I can show you now, but I think me being
asked to speculate
Page 415 U. S. 704
as to why someone would jump on me from behind is not within any
kind of realm of prosecution --"
"THE COURT: The Court will be in recess."
On November 6, 1972, petitioner returned to the court in
response to the judge's direction, and was at that time found
guilty of direct contempt of court in violation of another Tulsa
ordinance. Petitioner was fined $50 plus costs. Petitioner appealed
his conviction to the Court of Criminal Appeals of Oklahoma. His
principal contention in that court was that the use of the
explective "chicken shit" was not directed at the trial judge, and
also that the conviction for direct contempt was based solely on
the use of the explective, in violation of his First and Fourteenth
Amendment rights.
The Court of Criminal Appeals affirmed the conviction in this
language:
"Counsel submits in his brief the explective used by defendant .
. . does not constitute direct contempt
per se. We find
the explective to not be the only comment in question. After
studying the entire portion of the record above reproduced, we note
that the record clearly manifests in its entirety discourteous
responses to the trial court upon the trial court's observations
made during the course of trial. In
Champion v. State,
Okl.Cr.,
456
P.2d 571 (1969), this Court held such discourteous responses
are sufficient to warrant a citation for contempt. Coupling
defendant's explective with the discourteous responses, it is this
Court's opinion there was sufficient evidence upon which the trial
court could find defendant was in direct contempt of court."
Yet the Court reverses petitioner's conviction on its
determination that the trial judge "rested the conviction
Page 415 U. S. 705
upon the use of the explective only." The Court reads the
criminal information to charge solely the use of the explective,
and relies on the fact that the Judgment and Sentence refers
specifically to the "offense" charged in the information.
The Court's reading of the language of the information seems to
me much too restrictive; the information charged that
petitioner
"did . . . commit a contempt of court by his insolent behavior
during open court and in the presence of Judge Thomas S. Crewson,
to-wit: by using the language 'chicken-shit,' in the City of Tulsa
Municipal Court. . . ."
I am not prepared to say that this language would not put
petitioner on notice that he was being charged with contempt of
court by his course of conduct which began with the use of the
explective and ended with his discourteous remarks to the trial
judge. In the absence of a transcript of the contempt proceedings,
the Court is simply not in a position to know whether the trial
judge based the contempt conviction solely on the use of the
explective, as the Court assumes, or whether the trial judge found
petitioner guilty of contempt based on the course of conduct which
began with the explective and ended with the discourteous
remarks.
The Oklahoma Court of Criminal Appeals apparently felt that the
trial judge had considered the other remarks made by petitioner in
finding him guilty of contempt. [
Footnote 1]
Presumably, that court was aware of what the
Page 415 U. S. 706
information charged and what the judgment and sentence said. The
"Judgment and Sentence" heavily relied upon by the Court for its
reference to the "[said] offense" charged in the information is
simply a pre-printed standardized form in which the only thing to
be filled in by the sentencing judge is the name of the defendant,
the date of the judgment, the sentence imposed, and the ordinance
the defendant is charged with violating.
Cole v. Arkansas, 333 U. S. 196
(1948), was a very different case from the instant one. There, the
petitioners were tried under an information charging them only with
a violation of a section of a state statute making it an offense to
promote an unlawful assemblage during a labor dispute. The trial
court had instructed the jury on that section, and the jury had
returned a conviction. On appeal to the Supreme Court of Arkansas,
petitioners had contended that the section of the state statute
violated the Constitution. Without passing on that question, the
State Supreme Court sustained petitioners' convictions on the
grounds that the information charged and the evidence showed that
petitioners had violated
an entirely different section of
the same statute, which proscribed the distinct offense of using
force and violence to prevent a person from engaging in a lawful
vocation. This Court reversed, noting that the trial judge had, at
the request of the prosecutor, read the former section to the jury
and had instructed that the "
offense . . . on trial in this
case'" is the "`promoting, encouraging or aiding of such unlawful
assemblage by concert of action among the defendants as is charged
in the information here.'" Id. at 333 U. S.
199.
Page 415 U. S. 707
Here we have no basis to conclude with any degree of certainty
that the petitioner's contempt conviction rests solely on the use
of the explective. Both
Street v. New York, 394 U.
S. 576 (1969), and
Williams v. North Carolina,
317 U. S. 287
(1942), were cases where al of the relevant lower court proceedings
were incorporated in the record before this Court, and ambiguity
was present despite that fact. [
Footnote 2] Here,
however, there is no such ambiguity arising out of a full record;
there is instead a total absence of any record of the trial which
resulted in the conviction which the Court now reverses. I have no
doubt that a majority of this Court would refuse to reverse
petitioner's conviction in this case if it had a full record before
it and the record indicated that, at the contempt hearing, the
trial judge had made it clear to petitioner that he was being
charged with contempt based on the course of conduct beginning with
his use of the explective and ending with his discourteous remarks
to the judge. Whatever the force of
Street and
Williams on their own facts, where ambiguity was present
despite the fact that there was a full record available in this
Court, I would not extend them to reach this case, where petitioner
has failed to preserve a full record of what transpired below.
This Court each year reviews thousands of cases from the state
courts, many of which, like this one, are characterized by less
than perfect records. Reversal of state court judgments of
conviction, especially in summary fashion, without argument, should
be reserved for palpably clear cases of constitutional error.
Adams v.
Page 415 U. S. 708
United States ex rel. McCann, 317 U.
S. 269 (1942);
Stroble v. California,
343 U. S. 181
(1952). Since here the basis for the Court's reversal is its own
highly speculative judgment as to essentially factual matters on a
record which offers no more support for petitioner than it does for
respondent, I dissent.
[
Footnote 1]
There is no indication that petitioner was so unsophisticated or
perhaps even so illiterate as to be unaware that his language was
inappropriate for a courtroom. To the contrary, petitioner's
statements in the courtroom, for example, "I think me being asked
to speculate as to why someone would jump on me from behind is not
within any kind of realm of prosecution," indicate that he was not
a victim of his own lack of awareness of the demands of the
situation.
[
Footnote 2]
In addition, since I conclude that petitioner herein could
constitutionally be punished for the use of the explective, cases
such as
Street and
Williams are, for me,
inapposite, since they dealt with situations where the Court felt
that convictions may have been based on constitutionally
impermissible elements in the charges or in the evidence.