FILED

August 19, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL 1999 SESSION

STATE OF TENNESSEE * C.C.A. #03C01-9812-CC-00430

Appellee, * Blount County

vs. *

HUBERT D. PATTY, * Hon. D. Kelly Thomas, Jr., Judge

Appellant. * (Order of Contempt)

*

For Appellant: For Appellee:

Hubert D. Patty Paul G. Summers

P.O. Box 5449 Attorney General and Reporter

Maryville, TN 37804-2401 425 Fifth Avenue North

Nashville, TN 37243

Michael J. Fahey II

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

Nashville, TN 37243

OPINION FILED: 

REVERSED AND REMANDED

NORMA MCGEE OGLE, JUDGE
1

In comp liance with T enn. R. App. P. 30(b )(2) a nd (d )(2), th e parties have s tyled th eir

pleadings before this court “State of Tennessee v. Douglas Boruff.” Tenn. R. App. P. 30 provides that

papers a ddre ssed to th is cou rt sho uld co ntain a cap tion setting forth the title of the case as it

appeared in the trial court. In this case, the trial court included its order of contempt in its order

granting Mr. Patty’s motion for a continuance on behalf of his client, Douglas Boruff. Notwithstanding

the title of the case in the trial co urt an d bec ause Mr. Patty, rathe r than Mr. Boruff, is the appe llant in

these p roceed ings, we h ave styled th is opinion “State v. Hub ert D. Pa tty.”

2

OPINION

Attorney, Hubert D. Patty,1 appeals as of right the judgment of the

Blount County Criminal Court summarily holding him in criminal contempt and

imposing a fine of fifty dollars ($50.00). The trial court also taxed the appellant with

court costs stemming from his conduct, amounting to nine hundred and twenty-five

dollars and twenty-two cents ($925.22). The appellant presents the following issues

for our review:

1. Whether the evidence is sufficient to

support the trial court’s judgment.

2. Whether the trial court denied the appellant

due process of law.

3. Whether Judge D. Kelly Thomas, Jr.,

should have recused himself from the

contempt proceedings.

Following a thorough review of the record and the parties’ briefs, we reverse the

judgment of the trial court and remand this case for proceedings consistent with this

opinion.

Factual Background

On June 1, 1998, a Blount County Grand Jury indicted Douglas Boruff

for the offense of rape of a child. The trial judge, D. Kelly Thomas, Jr., appointed

the District Public Defender, Mack Garner, to represent Mr. Boruff. On July 21,

1998, Judge Thomas entered an order scheduling, among other items, a discovery

deadline of September 14, 1998, and a trial date of November 12, 1998. 
3

On October 26, 1998, the appellant appeared before Judge Thomas

on behalf of Mr. Boruff. According to the appellant, Mr. Boruff had asked that the

appellant replace Mr. Garner as his attorney in the pending rape of a child case. 

The appellant asked the trial court to authorize a substitution of counsel. He further

indicated that he would not be ready for trial on November 12, 1998, and requested

a continuance of the trial date. Judge Thomas denied the motion to continue 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

attorney on the 12th, that is between him - - Mr. Boruff

and the attorney. And if the case, for some reason,

doesn’t go to trial on the 12th, then the attorney can

change then, too. But it’s too late to come in, in a rape of

a child case, two weeks before trial and say, I’ve hired a

lawyer and have the case knocked off the docket.

An entry in the record on the same day, signed by the trial court and entitled

“Arraignment,” provided:

This matter came on the Court’s docket this date,

represented by Hubert Patty. It appearing that the

defendant has retained Hubert Patty to represent him in

this matter, the District Public Defender’s office is allowed

to withdraw. Upon oral Motion for Continuance filed by

defendant’s counsel and after hearing argument from

counsel for both parties, the Court is of the opinion that

this motion is not well taken and is overruled. This

matter shall remain set for trial on 11/12/98.

Subsequently, the appellant signed an agreed order, entered by the

court on October 29, 1998, which authorized substitution of counsel. The order

provided:

Upon motion of the Defendant, Douglas Boruff, 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 represent the

Defendant in the above styled case at trial on November

12, 1998, and that respondent’s original counsel, Mack

Garner, should be allowed to withdraw.

IT IS ORDERED by the Court that Mack Garner be
4

allowed to withdraw as the attorney of record for

Defendant, Douglas Boruff, and that Hubert Patty is

substituted as attorney of record 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 appellant again filed a motion to continue

the trial date in Mr. Boruff’s case and attached an affidavit 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 district attorney

general provided the appellant with information which suggested that a Dr. Cecil

Howard possessed exculpatory 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 scheduled trial date.

On November 12, 1998, the appellant renewed orally his motion for a

continuance. However, upon questioning by the trial court, the appellant admitted

that, contrary to his affidavit, he had reviewed Mr. 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 order. He was also

aware at that time that he would be unable to adequately prepare for trial by the

agreed date. 

In defense, the appellant asserted to the trial court that, when he

signed the October 29, 1998 order, he did not realize that he was agreeing to the

November 12, 1998 trial date. He believed that the order 
5

was a step necessary to switch counsel, I just assumed.

* * * 

I think I never indicated to the Court that I could be ready

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 course to get it up there. But I

represented to the Court from the very 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 trial court concluded:

[T]he Court finds that from what you’ve told me here

today that you knew on the 26th of October, by having

talked with Mack Garner and seeing the file, that not

enough work had been done for you to possibly be able

to try this case on November 12th. The Court further

finds - - and on that same day, I had already denied a

continuance for a general reason 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 signed this order on the

29th day of October of ‘98, which is in the court file,

saying that you agreed to represent the Defendant in the

above-styled case at trial on November 12th of ‘98 and

you knew at that time when you signed that order and

you had known for at least three or four days that you

could not be ready for trial - - or signed an order stating

that you would be anyway, in order to get in the case as

Mr. Boruff’s lawyer. 

And then on the 6th of November, filed a motion for a

continuance because you hadn’t had time to fully

prepare. Having time to fully prepare is not the point. 

The point is that when you told me you couldn’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 his own counsel on the trial date and you

cannot be his lawyer. 

And in order to be his lawyer, 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 Court’s order. And I am finding
6

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 order that he agreed to be here ready for trial today .

. . . But instead Mr. Patty signed that order and

defrauded me when he knew full well that he couldn’t be

ready.

The court also reported the appellant’s conduct to the Board of Professional

Responsibility.

Analysis

The purpose of criminal contempt proceedings is to vindicate a court’s

authority and to maintain the integrity of court orders. 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 said, a trial court “must abide

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 contempt proceedings:

(1) The willful misbehavior of any person in the

presence of the court, or so near thereto as

to obstruct the administration 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, order, rule, decree, or

command of said courts.

(4) Abuse of, or unlawful interference with, the
2We reject the State’s argument in its brief that the contemptuous conduct occurred 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. Boruff’s tria l.

7

process or proceedings of the court.

(5) Willfully conversing with jurors . . . .

(6) Any other act or omission declared a

contempt by law.

Our supreme court has further observed that the power to punish for contempt

“should be exercised only when necessary to prevent actual, direct obstruction of, or

interference with, the administration of justice.” Robinson, 377 S.W.2d at 912. 

[C]riminal contempt that obstructs 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 court held the appellant in contempt for

“subverting and disrupting the Court’s docket and the Court’s order.” Specifically,

according to the trial court’s findings at the conclusion of the November 12, 1998

hearing, the contemptuous conduct occurred when the appellant 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 supported 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 reasonable doubt. Black, 938 S.W.2d at 398. On appeal, 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” could have found the essential elements 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 not 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. However, in reviewing the record,

we note that the appellant’s conduct did not occur in the presence of the trial court. 

As noted earlier, the trial court in this case invoked summary contempt proceedings. 

Tenn. R. Crim. P. 42 (a) provides that a judge may summarily punish a criminal

contempt only if the judge certifies that he saw or heard the conduct constituting the

contempt and that it was committed in the actual presence of the court. 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 defense. 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 “sparingly, . . . in cases of

‘exceptional circumstances’” 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 short,

“the court[s] have evinced a preference for proceedings that involve notice, a

hearing, and even, a different judge. Turner, 914 S.W.2d at 959.
9

In light of these principles and on the basis of the record before this

court, we must conclude that the appellant was entitled to notice and a hearing prior

to the imposition of contempt sanctions and that the trial court abused its discretion

by summarily holding the appellant in contempt. However, while the trial judge was

understandably upset by the turn of events, this record does not establish that he

was biased in any way against the appellant. Nevertheless, we 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 court and remand this case for

proceedings consistent with this opinion and Tenn. R. Crim. P. 42.

 

Norma McGee Ogle, Judge

 

Jerry L. Smith, Judge

 

Joe G. Riley, Judge