¶1concurring:
¶2I concur in the majority's affirmance of each of Skolnick's three contempt convie-tions. I feel compelled, however, to make several observations and statements which may serve to clarify my position and to set forth certain points at which my views depart from those of the majority.
¶3The majority opinion separates its treatment by cause number and by numerical delineation of the issues. For simplicity, I will do the same.
¶4PSC 354
¶5ISSUE I
¶6Sufficiency of Evidence
¶7I agree that the evidence supports Skol-nick's two contempt convictions on July 16, 1975.
¶8ISSUE II
¶9Contempt Procedure I would agree that the statutory requirement (LC. 34-4-7-7) for a statement by the trial judge setting forth the contumacious conduct, together with whatever explanatory statement may have been made by defendant, has a purpose which is to provide a record for review. That may be the only purpose when, as here, the situation is such as to require immediate action by the trial judge. But when the situation requires the initial judge, before whom the alleged contempt was committed, to disqualify himself and requires determination by an "impartial" judge, the statement has another purpose. It provides the framework within which the hearing or trial is to be conducted. The "charging" statement by the initial judge serves to inform the defendant of the nature of the contempt charge. It is, in effect, the "notice" required by due process. I read Brennan v. State (1961) 242 Ind. 79, 173 N.E.2d 312, and Garlin v. State (lst Dist. 1975) 163 Ind. App. 570, 325 N.E.2d 515 to so hold. See also State ex rel. Allen v. Vermillion Circuit Court (1967) 248 Ind. 258, 226 N.E.2d 324, and McWhirt v. Fearnow (2d Dist. 1973) 158 Ind.App. 68, 301 N.E.2d 810. Only in this context does the statutory reference to a contempt defendant being "arraigned" have significance. I.C. 84-4-7-4, supra. It is at his "arraignment" that the defendant has an opportunity to make the statutorily recognized statement "in ex*1174planation, extenuation, or denial" responding to the statement of the judge. Further, the defendant's explanatory statement may serve to confine the bounds of his "defense" against the allegations of contempt.
¶10Subject to this caveat, I concur with the majority's treatment of Issue II.
¶11ISSUE III
¶12Right to Counsel
¶13I concur.
¶14ISSUE IV
¶15Self-Incrimination
¶16I concur.
¶17ISSUE V
¶18Entrapment
¶19While I agree that the entrapment defense is not available to Skolnick in this case, I do not agree with the broad statement by the majority: "One cannot be 'entrapped' into obstructing court proceedings or displaying disrespect for a trial judge by insolent remarks or conduct". (p. 1165). The possibility exists, albeit remote, that in certain situations a person might be baited or goaded by an over-zealous trial attorney or by a trial judge made momentarily indignant or vindictive. That person might humanly, but unwisely, retaliate with disrespectful or obstreperous words or conduct, which if purposeful would be directly contemptuous. In this sense one might be "entrapped" into contumacious conduct.
¶20ISSUE VI
¶21Freedom of Speech
¶22I concur.
¶23ISSUE VII
¶24Subpoenas
¶25Skolnick contends erroneously that under the provisions of I.C. 34-4-7-7 he "had the right to compel witnesses to appear for the purpose of establishing his defense . .". (App.Br. p. 73). As the majority points out, the statute is silent with respect to direct testimony as opposed to affidavits. However, I do not believe that direct testimony is absolutely precluded. It is extremely unlikely that an appellate tribunal would find reversible error if the trial judge exercised his discretion and permitted live testimony, in lieu of a sworn written statement.
¶26In addition, I must respectfully disagree with the majority's penultimate paragraph under this Issue. While I do not perceive the error to be reversible in that Skolnick has demonstrated no prejudice occasioned thereby, I believe the trial judge exceeded his authority in requiring Skolnick to obtain prior court permission before issuing further subpoenas duces tecum. Indiana Rules of Procedure, Criminal Rule 2(1) confers no such authority, nor does Indiana Rules of Procedure, Trial Rule 34, insofar as such Rule may be held applicable to direct criminal contempt. It appears to me that the trial judge may only quash or modify a subpoena duces tecum; he may not require that a party gain the blessing of the court before issuing a subpoena. A party or other person requested to produce documents, records, etc. has protection against burdensome or harassing subpoenas. Pursuant to T.R. 34, he may arguably move to quash or object to the request, or may recover damages, if appropriate. He may also arguably seek sanctions under Indiana Rules of Procedure, Trial Rule 37(B).
¶27PSC 356
¶28ISSUE I
¶29Charges
¶30Subject to the observations made with respect to Issue II under Cause Number PSC 854, I concur and agree that Skolnick's argument in this regard is without merit.
¶31ISSUE II
¶32Distinct Statement
¶33I concur subject to the views expressed in relation to Issue II under Cause Number PSC 854.
¶35Proof Beyond A Reasonable Doubt
¶36I concur and agree with the majority's statement that "Citation and punishment for direct contempt is an entirely summary process", so long as the statement is restricted to those direct contempts which must be determined and punished immediately.
¶37ISSUE IV
¶38Notice
¶39I concur.
¶40ISSUE V
¶41Intervention
¶42The sole purpose of Ruman's "intervention" was to obtain the relief afforded under T.R. 37(B)(2). Ruman was not in the proceeding as an intervening party pursuant to TR. 24. As a result, the granting of amicus status to Ruman was surplusage and although perhaps erroneous did not diminish the propriety of Ruman's status before the Court as one seeking relief under TR. 87(B)(2).
¶43ISSUE VI
¶44Bias
¶45Judge Staton's opinion states that a different and "detached trial judge" should make the determination if the conduct is of "an indirect contumacious nature" or if the judge waits until the end of court proceedings to "cite Skolnick for contempt". The need for a detached judge is also present when the original judge cites for contempt immediately but waits until the conclusion of the proceedings to impose the punishment.
¶46The present state of the law did not arise out of logic. The trial judge is less likely to act out of indignation, anger or vindictiveness if the punishment or guilt determination is delayed, yet, it is only when the emotions are most likely to be at a peak, i. e., immediately following the courtroom outburst, that the trial judge is permitted
¶47to judge guilt and impose punishment. The rule of law does not, therefore, appear to be founded upon logic. Rather the rule seems to emanate from a delicate balance between practicality and policy. See Cooke v. United States (1925) 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767 as quoted in Jacobsen v. State (3d Dist. 1979) Ind.App., 384 N.E.2d 1041, at 1048 (Garrard, J., concurring).
¶48ISSUE VIH
¶49Right to Bail
¶50I concur.