### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 15, 2001 Session
JESSE C . MINO R by and through counsel, Hal Hardi n v. STATE OF TENN ESSEE
Appeal from the Criminal Court for Davidson County No. 97-C-2096(A) Cheryl Blackburn, Judge

No. M2001-00545-CCA-R10-PC -Filed December 5, 2001

We accepted

this extraordinary appea

l, see Tenn. R. App. P. 10, to review certain pre-hearing actions of the Davidson County Criminal Court in this post-conviction case. Our grant of review extends to these issue s: (1)whet

her a “next friend” may file a post-c onviction petition on behalf of an incompetent

prisoner ; (2) if so , may

the post- convicti on court, sua sponte , order a mental evaluation of the prisoner or conduct other inquiries into the matter to determine whether the “next f

riend” petition was properly

filed on the prisoner’s behalf; and (3) whether the court below properly

denied the petitioner’s motion for recusal. We conclude that we improvidently granted extraordinary

review in part, but we otherwise affirm the rulingsof the low er cour t and remand for f

urther p roceed ings. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d and Rem anded.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AV ID H. W ELLES and J OE G. R ILEY , JJ., joined.

J. G. Mitchell, II

I, Murfreesboro, Tennessee, and Hugh C. Howser, Jr., Nashville, Tenne ssee, for the Appellant, Jesse C. Minor.

Paul G. Summers , A tt or ne y Genera l & Repor

ter; David H. Find

ley , Assistan

t Attorne y General ; Victor S. Jo hns on, III, District Attorney Gene ral; and Roger D. Moore, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

Facts and Procedural History

An understanding of the procedural history of this case is essential to comprehending the outcome of this appeal. Equally critical is an under standing of the various representative capaci ties of the involved p arties a

nd of cou nsel.1 Curio usly, the court als o foun d tha t the pet it ion w as not ti mely fi led. It appears, however, that the petiti on was prem ature, no t untimely.
-2-

In 1997, the petitioner was charged with three counts of ra pe of a child, two counts of aggravated sexual battery , and one co unt o f aggravated a ssault. See State v. Jesse Cleo Minor , No. M199 8-00424-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App, Nashville, Dec. 15, 1999). Pursuant to settleme

nt with the

state, Minor enter

ed a best -intere st guilty

plea on Ma

y 21 , 1998 to
one count of attempted rape of a child and received an eight-y

ear, Range I

sentence. The remaining charges were dismissed. At a sentencing hearing , the trial court imposed incarceration as the manner of service of

the sentence. Id. On direct appeal, we affirmed the tria l court’s denial of probation. Id. , slip op. at 4-8.

The mother of

the minor v

ictim in th e crimina l case filed a civil lawsuit in the Davi dson County

Circuit Cou

rt aga inst the pe

titioner, his wife, and his co -defendant, Step hanie Patton, in the criminal case. The lawsuit alleged sexual assault of

the daughter and sought the awa rd of money damages. Alana Dowe ll v. Jesse C. Minor , No. M2000-00378-COA-R9-CV, slip op. at 2 (Tenn. Ct. App., Nashville, Apr. 26, 2000).

A review of the record in this case, which c ontains discovery material from

the civil
case that is exhibited to the post-conviction petition, along with the court of appeals’ opinionin the civilca se , r ef

le ct s t he in vo lv em en t o f s ev er al at to rn eys in the civil case. Although the information is not entirely consistent, the following appearance s of couns el are reflected at various stag es of those proceedings. Attorney s Hal D. Hardin and Hugh C. Howser, Jr. have appeared for Mr. Minor in the civil case. Attorney s Howser and Kenneth Mark Bry ant have appeared for Mrs. Minor, the petitioner’s wife, and

Leann Morrison, the petitioner’sdaughter and guardia n ad litem in the civil
case. In one proceeding, Attorney s Howser and Har din are r efle cted a s appearing for “the defendants,” which technically would include the co-defendant from the criminal case, Ms. Patton,
as well as Mr. andMrs. Minor. It further appea rs that Attorneys Howse

r and Bry ant practice in the same law firm.

On February 2, 2000, the petitioner, by and throug h his “next friend,” L e ann Morrison, filed a p etition fo r post-c onviction

relief. This plea

ding wa s filed by

att orney J.G

. Mitchell, II

I as counsel

of record. The post-conviction court dismissed this petitionas prema turely filed. 1 Apparently, no a

ppeal of that dismissal was taken.

On April 20, 2000, the petitioner, through Ms. Morrison as “next friend,” ag ain filed a petition for post-conviction relief. Attorney Mitchell filed this action as c ounsel of record. The state moved to di smiss the petiti on, arg uing tha t the petit ion was imp

roperly file d thro ugh a “next friend,” that the p etitioner was at tha

t timeincompet

ent to main

tain the a ction, and that the

statute of limitations would be tolled during the petitioner’s incompetency. A lthough a writtenorder of that dismissal does not a

ppear in the rec ord, the c ourt minute s reflect that the s tate’s motion to dismi ss was granted on Jun e 30, 2000. Other information in the record indicates that the basis for that dismissal was the petitioner’s “next friend” status, which the trial court ruled was not a permiss ible2 It i s unneces sary for us to determine whet her coun sel’s belie f regard ing the b est-interes t plea’s effect on the
c ivi l lit igat ion is well founded. Accordingl y, not hing i n thi s opini on should be cons trued as addressi ng the a ctual admissibili ty of t

he petiti oner’s best-i nterest gui lty pl ea in the coll ateral civi l li tigati on. -3- manner in which to bring a post-conviction action. As with the previous filing, it appear s that no appeal of the dismissal was taken.

On July 13, 2000, the petitioner filed a third petition for

post-conviction relief styled “Jesse C. Mi no r, in di vi du al ly, an d b y an d through counsel, Hal D. Hardin v. State of Tennessee.” Attorney Mitchell filed this action as counsel of record. This pleading alleges that the petitioner was assisted in prepa

ring it by A ttorney s Hardin, Howser, Mitchell, Bry ant, and P aige A bernath y H ill. At to rn eys Hardin, Howser, Mitchell, and Hill have at s ome poin t sign ed pos t-con victi on pl eadin gs found in the app ellate r

ecord, a nd all fou

r have li sted thems elves ascounse l of record on the petitioner’s appellate brief. Attorney s Howser, Bry ant, and Hill a ll practi ce in the

same fir m, members of which have represented the petitioner, his wife, and his daughter in the civil action.

This third p etition alleges that the petitioner is in poor health and suffers from irreve rsible de menti a that se

riously affec ts his cognitive ab ilities. Th e petition er attac ks his attemptedrape of a child conviction based upon four allegations: (1) he was incompet ent and un able to understand the prior proceedings and theref ore inca pable of enterin g a voluntary

guilty plea; (2) the state failed to disclose material exculpat ory evi dence; (3) false and/or materially misleading statemen ts were offered to the trial court by t he victim and her mother; and (4) trial counsel did not provide effec tive assis tance. Ba se d u po n s ta te me nt s i n t he re co rd , a t l ea st on e o f h is at to rn eys b elie ves that a post-conviction petition successful in overturning the guilty plea that underlies the petiti o ner’s conviction will positively affect the civil litigation. See Tenn. R. Evid. 803(22) (judgment

of previous conviction exception to hearsay rule). But cf. Tenn. R. Evid. 4 10(2) ( nolo contende re plea is ina

dmissible a

gainst p arty

who made

it); Helen Bell v. Tennessee Farmers Mut. Ins. Co. , No. 01A01-9802-CV-00079 (Tenn. Ct. App., N as hville, Jan. 22, 1999) (although court declinedto rule on admissibility of best-interest plea of g uilty to f acilitation of arson

in civil ca se seeking recovery

for loss unde r homeowner’s policy , it held that plea did not, as a matter of law, preclude insured’s recovery on policy that excluded losses occasioned by action by or at the direction of the insured). 2 In a

ny e vent, shou

ld the pet itioner ul timately be gra nted the r elief re quested in his post-conviction petition, he would face criminal charge s more numerous and a potentialeffe ctive sentenc e of much

great er leng th than the

one conviction and sentenc e he pre sently has.

A hearin g o n the merits of the post-conviction case was scheduled for October 11, 2000. At the beginning of that heari ng, the trial court expressed concerns that the petitioner’ s at to rn eys in the post-conviction case had conflicting interests due to their re presentation of th e petitioner and vari ous family members in the civil proceeding. Attorney s Hardin and Howser acknowledged

involvement in the civil case. Attorney Mitchell admitted that, although he did not represent a party in the civil case, he had attended and observed a civil deposition of the victim in order to observe her demeanor because he and Attorney Hardin thought it w as a “g ood idea. ” It i s apparent from the record that the lower court was concerned that the petitioner’s best interests in the3 The pe titi oner’ s compet ence t o choose couns el wou ld ne cess ari ly ent ail his abil it y t o waiv e th e conf li ct of int eres ts that

the lower

court percei ved.

4 From this point in t

he post-convicti on liti gation forward, t he petiti oner’s fi lings have ut ilized t he caption he adopted in this motion.

5 The motion does not specify the dat e of the order regarding the “ next fri end” issue. Review of a memorandum fil ed by the pet it ioner

wit h th e moti on in dicates the orde r of whi ch t he pet it ioner

complai ns i s t hat of Ju ne 30, 2000, when the court dismissed the second petition for post- conviction reli ef. As we have noted, the dismissal was not appealed and apparently became a final order.

6 Although this l etter appears to hav e bee n filed with the clerk of the lo wer co urt, it has not been included in the app ellate record. The i nformat ion we have a bou t this letter co mes fro m the lo wer co urt’s order denying the reli ef the let ter reque ste d.
-4- civil c ase and criminal case were diver gent. Specifically , the relief sought in the post-conv ictio n case, setting aside of the convi ction and ju dgment , alth ough possibly beneficial to the petitioner’ s interest s in the civil case, m ight ultimately result in the imposition of multiple convictions and a much greater effective sentenc e in the c riminal c ase. Because of

these div ergen

t interes ts, the lower court perceived that

the petiti oner’s c ounsel, if the same in both proceedings, would have conflicting interest s in the two actions. Based u pon this co ncern, t

he lower court expr

essed itsintent to appoint
an a tt or ne y ad litem and orde r an inde pendent e

valuatio n of the pe

titioner t o determ ine his competency

to cho ose co unsel and st rategy in the post-conviction case. 3 The record reflects that the court entered a written order for the pe titioner to be evaluated. Apparently, the c ourt also entered an order appointing Attorney

Jeffrey Loy a s a tt or ne y ad litem to assist with the mental evaluation, althoug h this orde

r is not in th

e appell ate rec ord cer

tified to u s by

the cler k of the lo wer cou

rt.
On October

21, 2000, the petitioner fileda motion to reconsider the orders appointing the at to rn ey ad litem and requ iring the mental e

valuatio n . Curiously, the caption of this pleading
s tyled the case “Jesse C. Minor, b/n/f Leann Morrison and by and throug h counsel, Hal Hardin v. Stateof Te

nnes see. ” (Em

phas is add

ed.) This w as the

firs t atte mpt to inject Ms. M orri son a s “next friend” into the third petition for post-conviction relief. 4 A memorandum accompany

ing that motion complainedof the trial court’s “pre v ious rulin g” 5 that M s. Mor rison coul d not p

roceed as“next friend.” Followin g a hea ring, th e court d enied thi s motion to r

econsi der by

writ ten order on December 4, 2000.

On or about D ecembe

r 7, 2000, petitio ner’s couns el sen t a let ter to the tr ial j udge requesting that she recuse herself because she had se

rved as a n assistan t district a ttorney at the time of the offe nse to whic

h the petitioner eventuall y pl eaded g

uilty , and th ere was anappearance of improprie ty a nd a ques tion of pe

rceive d bias. 6 The lower court entered an order on December 12, 2000 denying

the request for recusal and amended that order on December 14, 2000. As a fac tual predica te for its denial, the judge fo und that she had no role in her former employ ment in the investigation, indictmentand prosecution of the petitioner’s underly ing case. Further, she found that the indictment was not returned until over one y ear after her appointment to the bench.7 Page t welv e of t his moti on is absen t f

rom th e appel lat e recor d.
-5- The petitioner filed a motion in the lower court for certification of an interlocutory appeal. See Tenn. R. App. P. 9 (interlocutory re view by permission of the trial a nd appellate courts). Alth ough this motion i s not pres erved in th e a pp el la te re co rd in it s e nt ir et y, 7 evidently the petitioner sought review of the trial court’s rulings that Ms. Morrison could not proceed a s the pe titioner’s “n ex t f ri en d, ” a pp oi nt in g t he at to rn ey ad litem , and ordering the mental evaluation.

The petitioner then followed up with a motion for recusal on January 10, 2001. This motion raised threebases for recusal: (1) the appea ranceof partiality due to the trial judg e’s former employment in the district attorney’s of

fice; (2) theappearance of bias beca use the trial judge met withone of the petitioner’s p otential witnesses in chambers without the parties or counsel being present ; and (3) the trial judge conducted an investig ation into the court records of the co llatera l civil procee dings.

On March 7, 2001, the trial court denied both the petition for interlocutory appeal and the motion for

recusal. On that same date, the petitioner filed an application for extraordinary appeal with this court. See Tenn. R. A pp. P. 10. We

granted the appl

ication to review t hree iss ues: (1) Whether

a “ne xtfrien d” may file a

petition for post-conviction relief on behalf of an incompetent prisoner; (2) If so, may a trial cour

t, sua sponte , order

a mental evaluationof the prisoner
or conduct other inq ui ries into t he ma tter to determ

ine wheth er the “ne

xt friend” petition was properly filed on the prisoner’s behalf; and (3) Whether

the tr ial judge in this case properly denied the petitioner’s motion to recuse.
The parties have submitted their briefs and oral arguments, and the case is now before us for disposition.

I

The first issue upon which we ac cept ed re view of thi s cas e is wheth er a “next friend” may file a post-conviction petition on behalf of an incompetent prisoner. This issue pertains to the petitioner’s complaint that the trial court prevented his daug hter, Ms. Morrison, from maintaining the action as his “next friend.” Upon consideration, we c o nclude that we improvidently g ranted extraordinary re

view of this question, as it is not justiciable in this case.

Th e first two post-conviction actions were brought by Leann Morrison as “ne

x t friend” of the petitioner. Both of those pet itions wer e dismisse d, and in neither c ase doesa notice of appeal appear to have

been filed. See Tenn. R. App. P. 4 (notice of appeal must befiled with in 30 days afte

r entry of judg

ment).8 The only effort to include M s. Morrison as “next frien d” ap pea rs to be coun sel’s unilater al ado ption of the style

“Jesse C. M inor, b /n/f Lean n M orriso n and by and throug h cou nsel, Hal Hardin v. State of Tennessee” after t he lower court app ointed the attor ney ad lit em and ordered th e mental eval uati on. We are aware of no basi s upon whic h a per son may unilater ally i nject herself into pending li tigati on without permissi on of the court, and the peti tioner has made no attempt to just

ify t his anomalous action.

9 At this j uncture, we are compelled to comment that when the peti tioner applied to thi s court for extraordinary review, he obfuscated the true nat ure of t he proc eedin g by e mploy ing in t he appl icat

ion a uni lat eral ly adopte d capt ion indicating Ms. Morris on was proceedi ng as “nex t f rie nd” of

her f athe r, Mr. Minor. We have now r evie wed t he ful l app ellate rec ord transm itted to u s, and it is ap pare nt that there is no “ne xt friend ” con trove rsy in the p resen t case.
-6- The t hi rd an d p re se nt ac ti on wa s f il ed , “ Je ss e C . M in or , i nd iv id ua ll y, a nd by a n d t hrough counsel, Hal D. Hardin v. State of Tennessee.” The allegations of the pet

ition includ e claims that the p etitioner

himself isincompet

ent to bring the action on his o wn behalf and tha t his at to rn ey, Mr. Hardin, is filing the action on his behalf. The allegations make it clear that Mr. Hard in is acting in a representative ca pacity. We believe the alleg ations ar e such tha

t Mr. Har

din is essentia lly a de facto

“next friend” although not designated assuch. Significantly, this action was not filed by Ms. Morrison as “ne xt friend” of the petitioner. 8

In the present action, there has been no ruling tha t the petitioner may not proc ee d throu gh a “next friend,” whether that indivi dual is Mr. Hardin or Ms. Morrison. Indeed, the present acti on has been maintained from its inception to the present time with Mr. Hardin acting as the petitioner’s de facto

“next frie

nd,” and the judg e of the l ower court has allowed t he petitio n to proceed in that form notwithstanding her ruling in the prior action that the petitioner coul d not proceed through a “next friend.” Without a ruling that the petition in the present case ma y not be maintainedthrough

a “next fr

iend,” th e questio n whethe

r a “next f

riend” may

maintain a

postconvi ction petit ion i s not just iciab le in t his p roceed ing. 9

Alth ough this litigation is related to, and even resultant from, the lower court’s ruling in the prior action that a post-conviction petition may not be maintainedby a “ne

xt friend,” review of the adverse ruling of the lower cour t should have been pursued via direct app eal o f the prior action. See Tenn. R. App. P. 3(b) (appeal as of right from fina l judgment in post-conviction proceeding). We must conclude that we improvidently g ranted review of this question.

II
The second issue is whether a p os t- co nv ic ti on co ur t m ay, sua sponte , order a mental evaluation of the pr

isoner or conduct other inqu

iries into the matter

to determ

ine wheth er the “ne

xt friend” petition was properly f iled on the prisoner’s behalf. We agreed to review this iss ue only if
we first det

ermined that a “next f

riend” may ma

i ntain a post-conviction petition on behalf of an incompetent

prisoner. Because we have held that there is no justiciable question of the propriety of
a “next friend” petition beforeus, the second issue, as stated, is likewise not justiciable. We believe,10 An unauth enticate d co py of w hat pu rpo rts to be this ord er was filed as an exhib it with the petition er’s

appli cati on for Rul e 10 review. W hile this do cum ent was pro perly su bmitte d in support of the Rul e 10 applicat

ion, an authent icat ed cop y of it was, f or some reason, excluded f rom the appel late record th at was certi fied to us by the l ower court clerk. See Te nn. R. A pp. P . 24(a ). Th e par ties were not po werles s to pla ce this document befor e us. The Rules of App ellate Proce dure allow a party to add any item to the record which is “ ne cessary to convey a f air, accurate and complete accoun t of wh at transpi red in t he tri al cour t with resp ect to those issues that are t he bases of appeal.” Tenn. R. App. P. 24(g). Neither party chose to s eek supple mentati on of th e record. Although the petiti oner inc luded a document purp orting to be suc h an o rder in the ap pen dix to h is brief, that document is not evi dence that we may consider. See, e.g., Ha rtsell v. Fort Sand ers Reg ional M ed. Ctr. , 905 S.W .2d 9 44, 9 49 ( Te nn. Ct. A pp. 1 995 ); Willi am Sturm v. Evelyn Hu nnic utt , No. 01A01- 9201-CH-00003 (Te nn. Ct. A pp., N ashville, O ct. 7, 19 92) ; Inman v. I nman , 840 S. W.2d 927, 930 (Te nn. Ct. A pp. 1 992 ). Th is cour t is bound by the record as certif ied on appeal from the lower court clerk and judic ially knows only t hat whic h appear s of recor d. Nei ther

the uncerti fi ed documen ts accompany ing the Rule 10 app lication n or the d ocu men ts in the ap pen dix to th e petitio ner’s b rief qua lify as such.

W ith respe ct to the a ppe ndix to the pe titioner’s brief , it bears not ing t

hat t he content s of an appendix are l imit ed to doc ume nts that ap pea r in the rec ord

. See gen erally Tenn. R. App. P. 28. Thus, document s t hat do not appear in the record are not even legiti mately incl uded in an appendix.

-7- however, that examination of aclosely rela ted question is appropriate. That questionis whether the lower court pr operly entered a sua sponte

order for a mental

evaluation of the allegedly incompetent prisoner to assist the court in determining (1) whether the petitioner is competent to make decisions regarding pursuit of the case, and (2) if not, whether the petitioner’ s best interests are being served by his present attorne

ys.
The post-conviction petition, brou g ht “by and throug h counsel” on the petitioner’s behalf by o ne of his s everal

attorne ys, allege s that the p etitioner “lack[s] the requis ite menta l capac ity andco m petence” to bring the action on his own. Because of the involvement of several of the petitioner’s post-conviction attorneys in var ying capacities in the civil case arising out of the

same underlying

facts, the lower co urt became concerned about possible conflicting interests of the petitioner’s goals in the post-conviction and civil cases as well as those of counsel in representing the petiti oner and

/or his fa mily members in both actions. For this reason, the lower court ordered
a mental evaluat

ion of the petitione r at Middle

Tenness ee Menta

l Health I nstitute to determin e his “present mental competency

to as sist couns e l and par ticipate meaning fully

in his pend

ing postconv iction pet ition . . . .” Although it does not appear in the appellate recor d, we discern that the lower court entere d a com panio n orde r appo inti ng A tt or ne y Loy to assist with the mental examination in th e r ol e o f a tt or ne y ad litem

. 10 In the absence of the pertine nt order from the appella te record, we are unable to know wha t the lower court

envisioned as the precise contours of the at to rn ey ad litem ’s role. From statements made by the court at a hearing transcribed a nd placed in the appellate record, however, it appe ars that the court anticipated Attorney Loy ’s role as a dual
one of court-appointed advocate an d inter im guardian for the petitioner during the menta l examination and hearing on competency

.-8- This issue is a complex one. We begin wi th an examination of the lower court’s authority to address, sua sponte , questions related to best interests of an incompetent

petitioner and conflic ting inte

rests of c ounsel.

We understand the basis for the lower court’s conc ern about the possibility of conflicting interests. The petitioner’s interes ts in th e civil litigation are likely better served by avoiding the guil

ty p lea he ma

de in the p

rior criminal cas e, while h is intere sts i n t he criminal liti gation are p erhaps better served by preserving the plea. Moreover , at least some of the petitioner’s post-conviction attorneys pre sently or previously have represented mem bers of the petitioner’s family

who may have

interests in preserving the estate o f the eld

erly and appa rently ill petitioner via the petitioner’s avoidance of the guilty plea

and thereby

potentia l avoidance of ci vil li ab il it y. If the petitioner is competent, he may resolve the question of these conflicting interests by choosing the course of action which he prefers. If he is not, t hese d ec is io ns sh ou ld be ma de by a representative who owes him an undivided duty of loyalty

. The lower

court sou ght todetermine whether the petitioner was competent to make these decisions, and if not, whether his interests were properly being protected byth e a tt or ne ys involved in representing his interests, one of whom stands as his repre sentative in this action. To that end, the court ordered the mental evaluation and appointed Attorne y Loy a s t he at to rn ey ad litem for purposes of the competency inquiry.

With respect to Attorney Har din’s cont inuing involvement as the de facto “next friend” of the petitioner, our supreme court has sa id,

While a next friend may in a c ertain sense be a volunteer in bringing suit, the continua nce of th e exerci se of his function is within the power of the court. I

t is in the province of the court of pendency , at any time, to inquire into hi s f itness to represent the interests of the incompetent, and to allow or

direct th at some one else be substituted in his place.

Williams v. Gaither , 139 Tenn. 587, 5 91, 20 2 S.W . 917, 918 (1 918) ( citi ng Kingsbury v. Buckner , 134 U . S. 65 0, 10 S. Ct. 638 (1890)). Therefore, the court had the authority to inquire into the proprie ty of At to rn ey H ar di n’ s i nv ol ve me nt as re pr es en ta ti ve of th e p et it io ne r, an d i f n ec es sa ry, appoint a substitute representative.

Si mi la rl y, a court may

disqualif y c ounsel if

it finds that counsel’s representation of
a party is contrar

y to the Code of Professional Responsibility. In re Ellis , 822 S.W.2d 602 (Tenn. Ct

. App. 1991). The lower court in this case has not, at this juncture, disqualified any of th e petitioner’s attorne

ys f rom furth er repr esentat ion, although it

has appointed Attorney

Loy in adual
ca pa ci ty o f g ua rd ia n a nd ad vo ca te fo r p ur po se s o f t he co mp et en cy i nq ui ry.

In view of the que stion of potential c onflicts a ffecting Attorn

ey Hardin a s de facto next friend and other members of the petitioner’s leg al team, we are convinced that the appointment11 Counsel for t he peti tioner

argues that

the l ower cour t’s actions have d enied the pe titioner his r ight to counsel of his choosing in vi olati on of th e Sixth Amendment. Any such ri ght has not been i mplicat ed at thi s stage. The court has not disc harge d the p etitioner ’s post-c onvic tion co unsel. As t he case pres entl y st ands, At torney Hardin is the de facto next frien d and Att orneys Mitche ll, Howser, Hardin a nd Hill are counsel of record. Attorn ey Loy has not been appointed in prefe rence to any o f these ind ividua ls; he is me rely the atto rney ad litem forthe li mit ed p urpose of the competency inqui ry. If t he court does at s ome point di squali fy t he pet itioner’s counse l, t hen the petit

ioner may then present any Sixth Am end men t claim o f this nature that he b elieves exists. B efore doin g so, ho weve r, t he pe titio ner’s counsel may wis h to revi ew Ca ruthe rs v. Sta te , 814 S.W .2d 64, 69 (T enn. Crim. App. 1991), in w hichthi s court s aid, consistent

withthe United States Supreme Court, that the S ixt h Amendm ent does not apply to pos t- convi cti on proce edings.
-9- of Attorney L

oy as guardian and advocate f or a limited purpose was a proper exercise of the court’ s au th or it y. See Goins v. Yowe ll , 41 Tenn. App. 280, 286, 293 S.W.2d 251, 254 (1956) (appointment of a guardian ad litem is for purpose of protecting the incompetent in the litigation).

Once the competency

inquiry is completed, Mr. Minor will either be before the court
as a compet

ent part y, in which ca se he may

retain o r discha rge hispr es en t c ou ns el , o r a lt er na ti ve ly, he will be before the court as an incompetent par ty , in which

case the court ma y a llow him to proceed through Attorney

Hardi n as his representative or appoint Attorney Loy or some other individual as his guardian ad litem for the remaining lit igation. 11 If the latter situation of incompetency

arises a nd if the petitioner is not indigent, the petitioner’s representative would have the duty of choosing

counsel to represent Mr. Minor, subject to the court’s authority to discharge any at to rn ey w ho se re pr es en ta ti on wo ul d r un afou l o f t he Co de of Pr ofes si on al Re sp on si bi li ty. Having determined that the court h ad the au thority to inquire

into compe

te nc y a nd conflicting interests, we next consider the court’s authority for ordering the mental examination as
a means of effecting the i nquiries

. The order directing the mental examination does not state any underlying

le ga l a ut ho ri ty. During the hearing which preceded this order, the court posited that its autho rity for the examination was “not through your regular competency to stand trial statute, . . . [T]his more comes under the inherent authority of the Court . . . as opposed to any pig eon hole that I can fin d . . . .” In a subsequent order deny ing reconsideration of the ruling, the c ourt held that Code section 3 3-7-301 p

rovided a uthority for the c ourt’s sua sponte action.

Section 33-7-301 provides for mental examinationof crimin al defe ndants and postconviction petitioners in limited circumstances. The pertinent portions of that statute provide:
(a)(1) When a defendant cha rg ed with a criminal offense is believed to be incompetent

to stand tr

ial, or the re is a question about the defendant's mental capaci ty at the time of the commission of the crime, thecriminal , circuit, or general sessions court judge may , upon such judge[’]s own motion or upon petition by the district attorney general or by

the attorney f

or the defendant andafter hearing, order the defendant to be evaluated on an outpatie

nt basis.

. . .-10-

(2) At an y stage of a f elony cri minal procee ding, inclu ding a p re-tri al hear ing, trial, sentencing, or po st-conv iction proceeding, the state may move or pe tition the court to authorize the district attorney general to designate a qualifiedexpertto examine the defendant if the defendant gives notice that the defendant intends to offer testimony about the defendant's mental conditio n, whether in support of a defense of insanity or for any

othe r purpose. . . .
Tenn. Code Ann. § 33-7-301(a)(1)-(2) (2001). Simply put, the court may on its own motion order
a mental ev aluation

in a trial procee ding, bu

t it has no sp ecific a

uthority under thi s statute

to do so in a post-conviction proceeding. The post-conviction co urt’s re liance on section 33-7-301 as authority for the menta

l examination is misplaced.

This does not endour inquiry, howeve r. Tennessee Rule of Evidence 706 provides that, in bench-t ried ca ses, “the

court ma y on its own motion or on the

motion of a

ny p arty enter an order to sh ow ca us e w hy expert witne sses shoul d not be ap pointed a nd may request the part ies to submit nominations.” Tenn. R. Evid. 706. Moreover, Supreme Court Rule 28, the rule governing post-conviction cases, allows the court the latitude to enter such orders “ as are necessary to the efficient management of the case” a n d “a s may be required.” See Tenn. R. Sup. Ct. 28, §§ 6(B)(3)( e), 6(B)(7 ). We belie ve that these prov

isions ga ve the low er cour

t the leg al author

ity t o order the mental evaluation.

The next question is whether that author it y was prope rly exercised. Rule 706 provides , “[T]he court may on its own motion or on the

motion of a

ny p arty enter a n order t o show
c ause why expert witnesses should not be appointed and ma y request the pa

rties to submi t nominations.” Tenn. R. Evid. 706. In most cases, the appointed experts should be agreed upon by the parties, although the rule does allow the court to appoint experts of its own choosing

. Id.

The lower court did not follow the Rule 706 procedure of entering a preliminary show
cause order a nd permitt

ing the p arties to

submit nominations forthe mental evaluation expert. Upon consideration, we believe that any error is de minimus because the lower court afforded the parties the opportun ity

to address the propriety

of the mental evaluation. This took place at what was origina lly scheduled to be the evidentiary hearing and evolved into essentially a de facto show cau se hea ring. The record reflects that the petitioner wa s allowed a thorough opportunity to oppo se th e mental evaluation at this hearing, which he did at some length. The petitioner w as afforded an additional opportuni

ty to voice his opposition atthe subsequent hearing on the motion to reconsider, and he also did so in an extensive memorandum filed with the court.

Likewise, we see no prejudice to the petitioner in the court’s choice of expert without accepting nominations. The court ordered the eval uation at Middle Te

nnessee Mental He alth Institute, one of the entities authorized to perform mental evaluations in criminal cases or onmotion of a party in a post-c onviction case. See Tenn. Code Ann. § 33-7-301 (2001). Even though we have held above that section 33-7-301 does not apply to post-conviction

mental evaluations on the court’s12 The first three re cusal issu es pre sented on ap pea l were ra ised an d ad dress ed in the petitioner’s second request

for recusal. The fourth i ssue was not rais ed as a basi s for r ecusal below. The pet iti oner’s fir st r equest f or recusa l has not been incl uded in the record. Apparentl y, t he fi rst request

was in the form of a letter se nt to the cour t whi ch was t hen fil ed wit h th e cl erk w hen r ecei ved by the court . A docu ment appeari ng t o be a copy of th is l ette r appear in the ap pen dix to the petitioner’s brief but not in the reco rd itself. As discus sed in n ote 6 ab ove , doc ume nts app earing in the ap pen dix b ut not t he appel lat e recor d are n ot prope rly befor e th e appel lat e cour t. We have not consi dered an y i nfor mati on or allegatio ns co ntained in the first req uest for r ecusa l, excep t insofar a s they we re also raised in the sec ond requ est.
-11- motion, that statu

te does provide guidance in determining the propriety of the trial court’s choice of expert. We therefore hold that the choice of expert was a re asonable and logical one.

We decline to find error in the lower court’s order of a ment a l examination, ap po in tm en t o f t he at to rn ey ad litem , and inquiry into competency and conflicting interests.

III

Fi na ll y, we consider whether the court below prope rly denied the pe

titioner’s motion for recusal. The petitioner

cla ims that recusal is r

equired because (1) the ju dge wa s previou sly employed in a supervisory position with the district attorney ’s office; (2) the judge met with one of the petitione

r’s pros pective

expert wit

nesse s in chambers without the presence of counsel; (3) the trial court made an ex parte investigation by re

viewing the circuit

court file in the civil case; and (4) the trial court has issued “egregious rulings” and has not adhered to Supreme Court Rule 28. 12

Recusal is approp

riate wh enever

a trial ju dge’s impartial ity c an be re asonably questioned. Tenn R. Sup. Ct. 10, C anon 3(E)(1); State v. Cash , 867 S.W.2d 7 41, 749 (Tenn. Crim. App. 1993). A t

rial judg e's de

nial of a motion to recuse will

be upheld

absent a showing of abuse of discretion. Cash , 867 S.W.2d at 749. Reasons which warrant recusal include: (a) the judge h as a per sonal bia s or prejudice co ncerning a party or a party’s lawyer, or personal knowledg e of dispu ted evide ntiary facts concerning the procee ding; (b) the judge served as a lawy er in the matter i n controv ersy , or a lawye r with whom the judge previously practiced law served

during such association as
a lawyer con cernin g the matter, or t he judg e has bee

n a mater ial witne ss concerning it. Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E(1)(a), (b).

In support of his first argument for recusal, the pe titioner relied in part on the lower court judg e’s appl

ication f or judicia l nominatio n. This ap

plication reflects that the

judge w as, indeed, fulfilling a supervisory role in the district attorney’ s office prior t o her appointment. She stated in the application that she “supervise[s] the Criminal Court and G eneral Sessions Team Assistant s (approximately 19).” He r practice involved “complex drug, homicide, a nd othertypes of cases which may

require in-depth investigation and prepara tion [with which she] worksclosely13 As state d in no tes 6 an d 12 abo ve, the p etitioner ’s firs t request f or recusal is not

properly before us as part of the appel late rec ord . The ord er de nying it is, how ever. It is ap pare nt from the rec ord that the trial ju dge ’s fo rme r e mplo yme nt was at iss ue in both the first and second motions. The judge’s findi ngs in her f irst order are t

herefore perti nent t o resolut

ion of t his i ssue. -12- withthe Vice

and Homic ide Divisi ons of the Police De

partment.” In her

order de nying the f

irst request for rec usal, 13 the judge found that she was one of over 40 a ttorneys in the district attorney ’s office at the time the petitioner committed his crime that resulted in the unde

rly ing proc eeding s. She found that she had no role in the investigation, indictment and prosecution of the petitioner in her prior employment and

that she had no knowledge of the facts of the case other than

those ga ined in her capaci ty as judge. She also f

ound that s he had been appoin ted to the bench ov er a y

ear pri or to the return of the petitioner’s indictment. At a subsequent hearing on the issue, the court found that her former role in the district attorney’soffice did not include supervisory authority over c

hild sex abuse ca ses.
In his brief , the petitioner a

rgues t h at the dist

rict atto rney ’s offic e was actively involved in the case against the petitioner “[a]lmost from the inception of the alleg edoffense.” He also claims that his proof

at the pos t-conviction evide ntiary hearing will involve the conduct of the districtattorney’s of

fice and onepa rt ic ul ar as si st an t d is tr ic t a tt or ne y, and the ju dge should not be in the position of assessing the credibility of her former

subordinate employee . Notwithstanding these clai ms, the petitioner has not demonstrated that any thing in the record belies the lower court’ s findi ngs that she had no involvement, whether investigatory or supervisory, wi

th the p etitioner’s criminal case while she was in the district attorney ’s office.

The Comme

ntary to the Code

of Judicial

Conduct sa

ys,
A lawyer in a

government agency

does not ordinarily have

an association with other lawyersemployed by

that agency

within the meaning of Sec tion 3(E)(1 )(b); a judge formerl y employed by

a government agency, however , should disqualify himself or herself in a proceeding if the judge' s impartiality might reasona bly be questioned because of such association. Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E(1)(b) (Commentary).

This Commentar

y isinstructive in the case at bar. The judge ha s dispelled, without contra diction, any conc erns about her actual involvement as a prosecutor or supervisor of th e prosecu tor in this case. The district attorney ’s office was a large one, with over 40 attorney s. The judge, when emp loy ed as a pr osecutor , perfor

med dutie s in the dist

rict a ttorn ey’s off

ice unrelated to this case. Furthermore, there is nothing in the vague allegations about the conduct of a nothe r prosecutor

that so much as indicates that the conduct transpired dur ing the judge’s tenure in the districtattorne

y’ s office or that the

allegedly culpable individual was employed during the same time periodthat t

he post-con viction jud

ge ser ved as a p

rosecut or. I t appear s from doc

uments fil ed in suppo rt of the pos t-conviction petiti on that the prosecu torial misc onduct allegati on perta in s t o-13-

discovery violationsand allowing fal se testim ony at the sentenc ing hea ring, both of which would
necessa rily have occurred after the

retur n of th e indi ctmen t. The judge found that she had departed from the distri ct attorney ’s offic e over on e y ear pri or to the indictment’ s return . On these facts, we
see no abuse of discreti o n in the lower court’s denial of the motion to recuse based upon for mer employment

as a prosecutor. Accord O wens v . State , 13 S.W.3d 742, 757-58 (Tenn. Crim. App. 1999), perm. app. denied

(Tenn.), cert. denied , 531 U.S. 846, 121 S. Ct. 116 (2000).

The second basis upon which the petitioner sought recusa l of th e tria l jud ge was her in-chambers conference with Professor Neil Cohen, a prospective expert witness for the petitioner. The petitione

r does not

allege that the me

rits of the case wer e discussed, but he claims that an appearance

of impropriety exists. The ju dge found that her communications with Professor Cohen
were related

to an ear lier, unr elated c onversa

tion about

jury selectio n in capit al c ases. We see nothing ac tu al ly i mp ro pe r a bo ut th is co mm un ic at io n. Wi th re sp ec t t o t he ap pe ar an ce of im pr op ri et y, Professo r Cohen is, at this poin

t, only a prospective wit

ness. He is the p etitioner ’s witnes s, and if the judge has misrepresented the nature of their co mmunicati on, it is with in the petitioner’s power to bring that evid ence to light. He has not done so. Nothing in the disciplinary rules for judges or lawyersprohibits j udges, lawyers and p rofesso rs of law from comm

unicatin g with

one another

about unrelated matters when they

are involved in vary

ing capacities in on goi ng litigation, and no improper appearance

is generated in the usual circumstances. The lower court

did not abu se its disc

retion in denying the motion to recuse on this basis. See State v. Jones , 735 S.W.2d 803, 8 10 (Tenn . Crim. App. 1987) (no basis for recusal when trial court held ex parte

conference with prosecutor mid-trial about unrelated matter and defendant fa iled to show prejudice).
Next, the petitioner takes issue with the lo wer cou rt’s rev iew of the circuit c ourt file in the civil case. He claims this was an improper independent investigation by the court. The law is clear that the court must generally restrain itself to consideration of those fa cts that are

before it andmay not conduct an inde pendent investigation. See Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E( 7)(e) (Commentary ) (“A jud ge must not indepe

ndently investig ate facts in a ca se andmust consider only the evide nce pre sented.” ); State v. Hart , 911 S.W.2d 3 71, 376 (Tenn. Crim. App. 1995). We believe, however, the court was empowe red to judicially notice the civil file.

A court may take

judicial notice of facts “not subject to

reasonable dispute” that are “capab le of

accura te and re ady

determin ation by

resort to sourceswhose ac curacy

cannot r easonab ly be questioned.” Tenn. R. Evid. 201 (a). “Co urt rec ords fall within

the gen eral ru bric of f acts re adily andaccurately

determined.” State v. Nunley , 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999), perm. app. denied

(Tenn. 2000). But cf. Sta te v. Cash , 867 S.W.2d 741, 748-49 Tenn. Crim. App. 1993) (trial judge should have recused himself after ex

parte communication with prosecutor and review of appellate court record relative to prior a ppeal of case, those actions culminatingin the cou rt sua sponte entering an order attempting to re instate a conv iction p reviousl y va cated by the appe llate court).

When a court intends to rely upon judic ial notice

principle s to bring

facts oth erwise outside the record into play in a proceeding, Rule 201 provides a mecha nism for hearing upon14 We reco gnize th at a crim inal de fenda nt’s con stitutional rig ht to jury tria l preve nts j udici al n oti ce f rom operating as a co nclusive deter minatio n of the fa ct notice d. See gen erally Co hen, et al. , at § 2.01[8][c]. However, when the issue i n a criminal case i s one to be determined by the court, rat her than a jury, the court’ s act of taki ng judic ial notic e is coter mino us with its ac cep tance , in its role as finder of f act, of t he notice d fact a s con clusively d eterm ined. S uch is the cas e here.
-14- request “as to the propriety

of taking judicial notice and the tenor of the matter noticed.” Tenn. R. Evid. 201(e). Implicitly , the aggrieved par ty must register

a timely objection under subsection (e); otherwise, the noticed facts are taken a s given in the trial and appe llate pro ceeding s. 14 Nunley , 22 S. W.3d at 28; see Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Pay ne, Tennessee L aw o f Evidence § 2.01[6][b] (4 th ed. 2000) ("Failure to re quest a hearing can bar later a

ppellate review of judicial notice.").

In this case , the rec ord ref lects th at the low er cour

t refer red to records of

the civil procee dings on two occasions. First, at the October 11, 2000 hearing which resulted in the appointment

of th e a tt or ne y ad litem and the me ntal examin ation ord

er, the j udge r

eturned from a
recessand announced that she had obtained the cour t file from the civil case. She said, “I hope nobody objects. ” Both pa

rtie s were s ilent. Coun sel for th e petitioner expre ssed oppo sition to appointment

of t he at to rn ey ad litem and the competency inquiry, but none of the petitioner’ s attorne ys, at least three of

whom were present, voiced any objection to the court’s reference to the civilcase file. Thereafter, in the Decemb er 4, 2 000 or der den ying the m otio n to re consi der rul ings that resulted from the October 11, 2000 hearing , the court recited facts gleaned

from the civil file. Int er es ti ng ly, however, it was not until January 10, 2001 that the petitioner registered any objection to the court’s reference to the c ivil file, just one day shy of three months af

ter the court first referred, without obj ection, t

o the civi l pleadin gs and f ilings.

The court record s of the c ivil case were fa cts capa ble of re ady

and acc urate determination. Nunley , 22 S.W.3d at 288; see Tenn. R. Evid. 201(a). The court expressed its intent to rely on those facts in October, and counsel stood mute as the court proceeded to do so. The court didso a second

time in December, and again counse l was silent. No objection was regist ered unt il nearly three mo nths afte

r the cou rt’s fir st reliance on judicially

noticed facts and one month after the secondoccurrence. Even then, counsel did not make a request under Rule 201 for a hea ring on the proprie ty of judicial notice. We hold that the petitioner’s counsel waived any complaint they

might have under Rule 201 to the court’s reference to the civil file by failing

to promptly request a hea ring on the propriety of judicia l notice.

Becau se the court pr

operly exercise d its powers of judic ial notice , the ref erence s to the civil file did not constitute an improper, ex parte investigation, and provided no ba sis for recusal.

Fi na ll y, we consider thepetitione r’s arg ument tha t recusa l is appro priate because of the lower court ’s “egre gious rulin gs and ref usal to ad here to Supreme C ourt Rule 2 8." Fir st of all, this issue wasnot raise d as a basis for recusal below, and it was not a basis upon which we granted Rule 10 re

view. I t is therefore not

properl y be fore us.-15- Ho wever, w e feel c ompelled to commen

t on the low er cour

t’s handling of th

ese procee dings. As discussed above , we find no thing eg regiou s about the

lower co urt’s rul ings. Mo reover, we do not b elieve th e lower c ourt has r

un afoul o f Rule 28' s schedul ing gu idelin es fo r promptdisposition of post-conviction actions. Fir st, it must be noted that the evidentiary hea ring in this case was scheduled within the guidelines of Rule 28. The lower court postponedthat hearing upon discerning the necessity of inquiry into the petitioner ’s mental c ompetency a

nd conflicting interest s of counsel. The petitioner’s counsel then pursued s eve ral lengthy motions in the lower court and the Rule 10 application to this court. The petitioner’s counsel’s objections to the competency

andconflicts inquiry

have contributed to the delay . While counsel certainly ha s the right to oppose tha

t inquiry , we will n ot lay the ca use for the delay

at the feet of the trial court, which acted appropriately

in the situation presented. In fact, we are compelle d to comme

nd the low er cour

t. Due to the many unique motions filed by the petitioner ’s counsel and the unusual circumstances presented, the lower court has done an exemplary job of ma naging the case and proceedings unde r challenging c ircumsta

nces.
In conclusi on, we hol d that we improvidently g ranted review of the first issue. On the other two issues , we aff

irm the rulings of

the lower court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE