### FILED
August 19, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE * C.C.A. #03C01-9812-CC-00 430 Appellee, * Blount County

vs. * HUBERT D. PATTY, * Hon. D. Kelly Thom as, Jr., Judge Appellant. * (Order of Contempt)

*

For Appellant : For Appellee : Hubert D. Patty Paul G. Summers P.O. Box 5449 Attorney General and Repor ter Maryville, TN 378

04-2401 425 Fifth Avenue North Nashville, TN 37243 Michael J. Fahey II Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243

OPINION FILED:

REVERSED AND REMAND ED

NORMA MCGEE OGLE, JUD GE1 In co mp liance with T enn . R. A pp. P . 30(b )(2) a nd (d )(2), th e par ties h ave s tyled th eir pleadings bef

ore this co urt “Stat

e of Tennessee v. Dougl as Boruff.” Tenn. R. App. P. 30 provides that pap ers a ddre sse d to th is cou rt sho uld co ntain a cap tion s etting forth the title of the cas e as it appeared in t he trial

court. I n this case, the tri al court i ncluded it s order of contempt in its order granting Mr. Patty’s motion for a cont inuance on behal f of his cl ient, Douglas Boruff. Notwithst anding the title of the cas e in the trial co urt an d bec aus e Mr . Patty, rathe r than Mr. B oruf f, is the appe llant in these p roceed ings, we h ave styled th is opinion “S tate v. Hub ert D. Pa tty.” 2 OPINION

Attorne y, Hubert D. Patty, 1 appeals as of right the judg ment of the Blount County Criminal Court summarily holdi ng him in criminal contempt and imposing a fine of fifty dollars ($50.00). The trial court also taxed the appellant w ith
court cos ts stemm ing from h is conduc t, amoun ting to nin e hundre d and twen ty-five dollars and twenty-

two cents ($925.22). The appel lant presents the followi ng issues for our re view:

1. Whether the evidence is sufficient to support the trial court’ s judgment. 2. Whether the trial court denied the appellant due proc ess of la w. 3. Whether Judge D. Kelly Thomas, Jr., should have recused himself from the contempt proceedings. Following a thoroug h review of the recor d and the parties’ briefs, w e reverse the judgment of the trial court and remand this case for proce edings consistent with this opinion.

Factual Background

On June 1 , 1998, a

Blount C

ounty G rand Jur

y indi cted Dou glas Bo ruff for the offense of rape of a child. The trial j udge, D. Kelly Thomas, Jr., appointed the District Public Defender, Mack Garner, to repr esent Mr. Boruff. On July 21, 1998, Judge Thomas entered an order scheduling, am ong other items, a discovery deadline of September 14, 1998, and a tri al date of November 12, 1998.3 On October 26, 1998, the appellant appeared before Judge Thomas on behalf of Mr. Boruff. According t o the appellant, Mr. Boruff had asked that the appellant replace Mr. Gar ner as his attorney in the pending rape of a child cas e. The appellant asked the trial c ourt to authorize a substi tution of counsel. He further indicated that he would not be ready for trial on Nov ember 12, 1998, and requested a continuance of the trial date. J udge Thomas denied the motion to contin ue the trial date and further stated to the appellant:

The case is set for trial on the 12th. He’s got an appointed attorney. And if someone else wants to be his attorne y on the 12th, th at is be

tween h im - - M r. Boruff and the attorney. And if the cas e, for some reason, doesn’t go to trial on the 12th, then the attorney can change then, too. But it’s t oo late to come in, in a rape of a child case, two w

eeks before trial and say, I’ve hired a lawyer and have the

case knocked off the docket. An entry in the record o n the same day, signed by the trial court and entitl ed “Arraignment,” prov

ided: This matter came on the Court’s docket this date, represented by Hubert Patt y. It appearing that the defendant has retained Hubert Patty to represent him in this matter, the Distri ct Public Defender’s office is a llowed to withdraw. Upon oral Motion for Continuance fil ed by defendant’s counsel and after hearing argument from counsel for both parties, the C ourt is of the opinion that this motion is not well taken and is overruled. This matter shall remain set for tr ial on 11/12/98.

Subsequently, the appellant signed an agreed order,entered by the court on October 29, 1998, w hich authorized substitution of counsel. The order provided: Upon motion of the Defendant, Douglas B oruff, for an Order allowing the substitution of his attorney of record in the above-noted cause, and it appearing that respondent has hired Hubert Patty, who agrees to represe nt the Defendant in the above style d case at trial on Nove mber 12, 1998, and that respondent’s original counsel, Mack Garner, s hould be allowed to withdraw. IT IS ORDERED by the Cou rt that Mack Garner be4 allowed to withdraw

as the attorney of record for Defendant, Douglas Boruff, and tha t Hubert Patty is substituted as attorney of r ecord for Defendant, Douglas Boruff . . . . It is further ordered that this case shall remain on the trial docket to be heard on November 12, 1998.

On November 6, 1998, the appell ant again filed a motion to conti nue the trial date in Mr. Boruff’s case and attached an af fidavit to the motion. In his affidavit, the appellant attested that he had contacted the appellant’s prior attorney immediately following

the entry of the October 29, 1998 order authorizing substitution of counsel. However, Mr. Garner was able to provide very little information about Mr. Boruff’s case, as the State had not yet responded to Mr. Garner’s discovery

requests. On November 2, 1998, the assistant distr ict attorney general provided the appellant with information which suggested that a Dr. Cecil Howard possessed exc ulpatory evidence in Mr. Boruff’s case. The appellant contacted Dr. Howard’ s office, but was informed that Dr. Howard could not meet with the appellant until

November 12, 1998, the schedul ed trial date.

On November 12, 1998, the appellant renewed orally his motion for a continuance. However, upon questioning by the trial court, the appell ant admitted that, contrary to his affidav it, he had reviewed M r. Garner’s file on October 26, 1998. Accordingly, he was aware of the prior lack of preparation and lack of discovery in Mr. Boruff’s case before signing the October 29, 1998 agreed orde r. He was also aware at that time that he w ould be unable to adequately prepare for trial by the agreed date.

In defense, the appellant asserted to the trial court that, w hen he signed the October 29, 1998 or der, he did not realize that he was agreeing to the November 12, 1998 trial date. He believed that the order5 was a step necessary

to switch counsel, I just assumed. * * * I think I never indicat

ed to the Court that I could be r eady except what might be reflected in these orders. * * * I’m - - again, I say I didn’t draft this order and I just signed it as a matter of cour se to get it up there. But I represented to the Court from the v ery beginning, I thought it - - I couldn’

t be ready by the 12th.

The trial court continued Mr. Boruff’s case until December 16,1998, but also held the appellant in criminal contempt of court. The tr ial court concluded: [T]he Court finds that from what you’ve told me here today that you knew on the 26th of October, by havi ng talked with Mack Gar

ner and seeing the file, that not enough work had been done for you to possibly be able to try this case on Nov

ember 12th. The Court further finds - - and on that same day, I had already denied a continuance for a general reas on of not being able to prepare and for that reason didn’t allow you to take the case as counsel

for Mr. Boruff. The Court further finds that you s igned this order on the 29th day of October of ‘98, whi ch is in the court file, saying that you ag reed to represent the Defendant in the above-styled case at trial on November 12th of ‘98 and you knew at that time w hen you signed that order and you had known for at least three or four days that y ou could not be ready for tria l - - or signed an or der stating that you would be anyw ay, in order to get i n the case as Mr. Boruff’s lawyer

. And then on the 6th of November, filed a mot ion for a continuance because you hadn’t had time to fu lly prepare. Having ti me to fully prepare is not the point. The poin t is that wh en you tol d me you co uldn’t be ready, I felt like that was a reasonable statement and I said it’s too late to be substituting counsel, he’s going to have to go to trial with hi s own counsel on the tri al date and you cannot be his lawyer

. And in order to be his law yer, you signed an order agreeing to something that you knew when you signed it that you could not perform. And that is plain and simple contempt of court for subverting and disrupting the Court’s docket and the Cour t’s order. And I am finding6 you in contempt. * * * . . . But I would never have signed the order allowing Mr. Patty in this case had there not been a clear statement in that ord er that he agreed to be here re ady for tr ial today . . . . But instead Mr. Patty signed that order and defrauded me when he knew full w ell that he couldn’t be ready. The court also reported the appel lant’s conduct to the Board of Pr ofessional Respons ibility.

Analysis

The purpose of criminal contempt proceed ings is to vindicate a court’s authority and to maintain the integrity of court or ders. Wilson v. Wilson , 984 S.W.2d 898, 904 (Tenn. 1998); Robinson v. Air Draulics Engineering Company, Inc. , 377 S.W.2d 908, 912 (Tenn. 1964). That having been sai d, a trial court “must abi de strictly by the ‘absolute provisions of the law’” in exercising its power to impose contempt sanctions. Sanders , No. 01A01-9601-GS-00021, 1997 WL 15228, at *3.

Thus, the trial court may only “issue attachments, and inflict punishments for contempt of court” on the basis of conduct described in Tenn. Code. Ann. § 29-9-102 (1980). See also Black v. Blount , 938 S.W.2d 394, 397-398 (Tenn. 1996); State v. Turner , 914 S.W.2d 951, 955 (Tenn. Crim. App. 1995). Tenn. Code. Ann. § 29-9-102 sets forth the following grounds for conte mpt proceedings:

(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administrati on of justice. (2) The willful misbehavior of any of the officers of said courts, in their official transactions. (3) The willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other

person, to any lawful writ, process, orde r, rule, decree, or command of said courts. (4) Abuse of, or unlawful interferenc e with, the2 We reject the State’ s argument in i ts brief that th e contemptuous conduct occur red when the appellan t announ ced to the court on Novem ber 12, 1 998, that h e was n ot prepa red to pro ceed w ith Mr. B oruf f’s tria l. 7

process or proceedings of the court. (5) Willfully conversing wi th jurors . . . . (6) Any other act or omissi on declared a contemp t by law. Our supreme court has further ob served that the power to punish for contempt “should be exercised onl y when necessary to prevent actual, direc t obstruction of, or interference with, the administration of justice.” Robinson , 377 S.W.2d at 912.

[C]riminal contempt that obstr ucts the administration of justice has generally

been defined as any willful misconduct which embarrasses, hinders, or obstructs a court in its administration of justice or derogates the court’s authority or

dignity, thereby

bringing the administration of law into disrepute. Black , 938 S.W.2d at 399.

In this case, the trial c

ourt held the appellant in cont empt for “subverti ng and dis rupting th e Court’s docket an d the Cou rt’s order .” Specif ically, according to the trial

court’s findings at the c onclusion of the November 12, 1998 hearing, the contemptuous conduct occurred when the appell ant signed the October 29, 1998 agreed order, knowing that the scheduled trial date was a condition of his representation and knowing that he would not be prepared for trial on the scheduled date. 2 Assuming that the trial court’s findings of fact are s upported by sufficient evidence, the appellant’s conduct was encompassed by Tenn. Code. Ann. § 29-9- 102 (2), (3), or (4).

In a criminal contempt case, the guilt of the accused must be established beyond a reasonabl e doubt. Black , 938 S.W.2d at 398. On a ppeal, this court applies the same standard of review to criminal contempt cases as the court applies in other criminal proceedings. Id. at 399; State v. Creasy , 885 S.W.2d 829,8 833 (Tenn. Crim. App. 1994). Thus, the appellant must establish that no “reasonable trier of fact” co uld have found the essential ele ments of contempt beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e) . This court will n ot reweigh the proof on appeal. Black , 938 S.W.2d at 398.

Applying this standard, we must conclude that the trial court’s judgment was supported by sufficient evidence. How ever, in review

ing the record, we note that the appellant’s conduct did not occur in the presence of the trial court. As noted earlier, the tri al court in this case i nvoked summary contempt proc eedings. Tenn. R. Crim. P. 42 (a) pr ovides that a judge may summarily punish a cri minal contempt only if the judge ce rtifies that he saw or hea rd the conduct constituting the contempt and that it was commit ted in the actual presence of the c ourt. Id. at (a); Black , 938 S.W.2d at 398; State v. Maddux , 571 S.W.2d 819, 821 (Tenn. 1978). In contrast, courts imposing criminal contempt sanctions for acts committed outside of their presence must comply with more stringent

procedural standards, including providing notice to an accused and an opportunity to present a defe nse. Tenn. R. Crim. P. 42(b); Black , 938 S.W.2d at 398; Maddux , 571 S.W.2d at 821. See also Turner , 914 S.W.2d at 955.

Even in the context of conduct committed in its presence, a trial court should utilize summary contempt proceedings “spar ingly, . . . in cas

es of ‘exceptional circumst

ances’” when there is a need to act swiftly and firmly to prevent contumacious conduct from disrupting a judicial proceeding.” Turner , 914 S.W.2d at 957-959; Sanders , No. 01A01-9601-GS-00021, 1997 WL 15228, at *3. In s hort, “the court[s] have ev

inced a preference for proceedings that involve notic e, a hearing, and even, a different j udge. Turner , 914 S.W.2d at 959.9 In light of these principles and on the basis of the record bef ore this court, we must conclude th at the appellant was entitl ed to notice and a hearing pr ior to the imposition of contempt sancti ons and that the trial court abused its discretion by summarily holding

the appellant in contempt. How ever, while the tr

ial judge was understandably upset by the turn of events, this reco rd does not establish that he was biased in any w

ay against the appellant.Nevertheless, w e would suggest that the trial judge recuse himself upon remand. “Recusal is always preferred unless it would result in prejudicial or injurious delay.” See Turner , 914 S.W. 2d at 961.

Conclusion We reverse the judgment of the trial cour t and remand this case for proceedings consistent w ith this opinion and Tenn. R. C rim. P. 42.

Norma McGee Ogle, Judge

Jerry L. Smith, Jud ge

Joe G. Riley, Judge