IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-01103-SCT

THOMAS Q. BRAME, JR.

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 07/10/1997

TRIAL JUDGE: HON. ROBERT G. EVANS

COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JAMES WARREN KITCHENS

DANIEL P. SELF, JR.

JEFFERY L. ELLIS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: DEWITT L. FORTENBERRY, JR.

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

DISPOSITION: REVERSED AND RENDERED - 2/17/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/9/2000

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

¶1. Attorney Thomas Q. Brame, Jr. was found guilty of constructive criminal contempt for the attempted

spoilation of evidence. The circuit court imposed sanctions upon him which resulted in his removal from the

list of circuit court attorneys approved for appointment to indigent cases and from those circuit court cases

to which he had already been appointed. The Court of Appeals affirmed, and we subsequently granted

certiorari. Because the trial judge improperly equated gross negligence with willful conduct, we reverse and

render.

FACTS

¶2. Pursuant to an appointment by the Jasper County Circuit Court, Attorney Thomas Q. Brame, Jr.

undertook to represent James Payton who was charged with possession of cocaine and marijuana. Brame

met with Payton the day before trial on March 5, 1997, and after discussing the case with Payton, decided

that he needed to view a prescription bottle which allegedly contained residue of cocaine and marijuana.

Brame contacted Deputy Homer Kemp of the Jasper County Sheriff's Department and requested to view

the bottle.
¶3. Deputy Kemp agreed to meet Brame and Payton in the grand jury room of the Jasper County

Courthouse to allow Brame to view the evidence. Upon arrival, they sat down at a table in the grand jury

room, and Kemp handed Brame a sealed plastic evidence bag which contained the pill bottle. Brame

examined the contents of the evidence bag and then handed it back to Kemp.

¶4. Brame then requested to examine the evidence bag again in order to check the dates on the label of the

pill bottle contained in the evidence bag. Kemp handed the bag back to Brame. While Brame was

examining the pill bottle for the second time, Kemp accused Brame of trying to remove the identification

numbers which had been written on the evidence bag with a pen by rubbing it with his thumb. Brame denied

the accusation and told Kemp that he would not make any challenge to the chain of custody of the pill bottle

and its contents.

¶5. The next morning, the parties appeared for the trial of Payton's case. However, instead of announcing

ready for trial, the State requested a hearing in the trial judge's chambers. The district attorney informed the

trial judge of the allegations made by Deputy Kemp and further advised the judge that there was some

question as to whether the State could still proceed with the prosecution of Payton's case. The trial court

continued the case in order for the State to determine whether it could proceed to trial on Payton's case.

¶6. The State subsequently filed a petition requesting that the trial court determine whether Brame's conduct

was contemptuous. A partial hearing was held on this matter on June 13, 1997, and completed on June 27,

1997. The trial court found Brame's conduct to be contemptuous, and as part of its Final Judgment

rendered on July 11, 1997, the trial court ordered that Brame be removed from the list of attorneys eligible

to receive appointments in criminal cases for a period of one year, and as well as be removed as counsel for

any pending criminal cases in which he had already been appointed. Additionally the circuit court ordered

that a certified copy of its "Findings of Fact and Conclusions of Law" be forwarded to the Ethics

Committee of the Mississippi Bar.

¶7. Brame appealed, and his case was assigned to the Court of Appeals, which affirmed the decision of the

circuit court. His motion for rehearing was denied by the Court of Appeals, and he then filed a petition for

writ of certiorari which we granted.

ANALYSIS

¶8. The circuit court's findings of fact and conclusions of law provided in relevant part:

Findings of Fact

(3) that the certain evidence bag involved in the aforesaid cause (and this matter) was delivered to the

Respondent for inspection by Homer Kemp at the Jasper County Courthouse in Bay Springs,

Mississippi on or about the 5th day of March, 1997;

(4) that the certain evidence bag involved herein had certain identifying numbers affixed thereon by the

Mississippi State Crime Laboratory when received into Respondent's possession;

(5) that Respondent has handled such evidence bags on numerous occasions and was aware that he

was to exercise reasonable, if not utmost, care in handling the same so as to maintain such evidence in

the same condition as he received it;
(6) that when the Respondent returned said evidence the aforesaid bag to Kemp, the subject numbers

had been substantially erased.

Determinations

(1) that the gross negligence of the Respondent in handling the subject evidence bag evidences willful

disregard for preservation of the same and is tantamount to intentional attempted spoilation of said

evidence;

(2) that for such intentional attempted spoilation of evidence, the Respondent should be adjudicated in

constructive contempt as defined in Coleman v. State, 482 So.2d 221 (Miss.1986), in that the

aforesaid attempt was "calculated to impede . . . administration of courts of justice . . .(supra, at page

222);

(3) that preservation of evidence is essential to the administration of justice in the courts; and

(4) that sanctions should be enrolled against the Respondent to punish and deter such conduct . . .

¶9. It should first be noted that Brame was found to be in constructive contempt.

Conduct directed against the court's dignity and authority is criminal contempt. Lawson v. State, 573

So.2d 684, 686 (Miss.1990). It involves an act which brings the court into disrepute or disrespect.

Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994)(citing Lawson, 573 So.2d at 686).

"Constructive contempt is an 'act calculated to impede or embarrass, obstruct, defeat, or corrupt

administration of courts of justice when the act is done beyond the presence of the court.'" Lawson,

573 So.2d at 686 (quoting Coleman v. State, 482 So.2d 221, 222 (Miss.1986)).

Terry v. State, 718 So.2d 1097, 1102 (Miss. 1998).

¶10. In the present case, the Court of Appeals held:

Attorney Brame argues that the State failed to prove beyond a reasonable doubt that he committed

an act of constructive criminal contempt.

Constructive contempt is defined as "any act calculated to impede, embarrass, obstruct, defeat, or

corrupt administration of courts of justice when the act is done beyond the presence of the court."

Coleman v. State, 482 So.2d 221, 222 (Miss.1986).

To establish constructive criminal contempt, the State presented one witness, Deputy Kemp. Deputy

Kemp's sole testimony centered around the fact that he saw Attorney Brame forcefully rub some of

the pen markings from the plastic evidence bag. Though Attorney Brame denied having intentionally

removed any markings from the plastic bag, the trial judge, as the trier of fact in this case, chose to

believe Deputy Kemp's testimony rather than Attorney Brame. The trial judge made detailed findings

of fact which were supported by the record, and this Court, therefore, defers to his findings. There is

evidence in the record from which the trial court could conclude that Attorney Brame committed an

act which was calculated to impede, embarrass, obstruct, defeat or corrupt the administration of

courts.

Finding no error in the instant case, this Court affirms the circuit court judgment.
1999 WL 311335, at *2 (Miss. Ct. App. May 18, 1999).

¶11. In Terry v. State, 718 So.2d 1097 (Miss. 1998), we set forth the standard of review in criminal

contempt cases:

"[T]his Court proceeds ab initio to determine whether the record proves the appellant guilty of

contempt beyond a reasonable doubt." Purvis, 657 So.2d at 797; citing Lamar v. State, 607 So.2d

129, 130 (Miss.1992). The burden of proof to establish that contempt has been committed is on the

party that is asserting that it has. In Interest of Holmes, 355 So.2d 677, 679 (Miss.1978). In a

proceeding for criminal contempt, evidence of guilt must be established beyond a reasonable doubt.

Id.

The State must prove that Terry acted in such a manner that was calculated to impede, embarrass,

obstruct, defeat or corrupt the administration of justice, when the act is done beyond the presence of

the court. Boydstun v. State, 259 So.2d 707, 708 (Miss.1972).

Terry at 1103.

¶12. In Purvis v. Purvis, 657 So.2d 794 (Miss. 1994), we stated:

This Court is not bound by the manifest error rule when the appeal involves a conviction of criminal

contempt. Instead, this Court proceeds ab initio to determine whether the record proves the

appellant guilty of contempt beyond a reasonable doubt. Lamar v. State, 607 So.2d 129, 130

(Miss.1992); Premeaux v. Smith, 569 So.2d 681, 683-84 (Miss.1990); see Miss. Code Ann. §

11-51-11 (Supp.1994) (general statute pertaining to contempt appeals).

Purvis at 797.

¶13. We therefore find that the Court of Appeals erred when it reviewed the present case pursuant to the

manifest error rule. In addition, the record does not support a finding of criminal contempt. In Mizell v.

Mizell, 708 So.2d 55 (Miss. 1998), we explained:

Contempt can only be willful. "A contempt citation is proper only when the contemner has wilfully

and deliberately ignored the order of the court." Cooper v. Keyes, 510 So.2d 518, 519

(Miss.1987), citing Millis v. State, 106 Miss. 131, 63 So. 344 (1913). It is a defense to a contempt

proceeding that the person was not guilty of willful or deliberate violations of a prior judgment or

decree. Dunaway v. Busbin, 498 So.2d 1218 (Miss.1986).

Mizell, 708 So.2d at 64 (emphasis added).

¶14. The circuit court found Brame's conduct to constitute gross negligence. However, gross negligence

does not rise to the level of willful conduct which is required to support a finding of criminal contempt. The

record does not establish beyond a reasonable doubt that Brame willfully and deliberately rubbed the crime

lab markings from the evidence bag, and therefore, lacking proof of willfulness, the evidence is insufficient to

support a finding of criminal contempt. We therefore reverse and render the judgments of the Jasper

County Circuit Court and the Court of Appeals.

CONCLUSION
¶15. We find the circuit court erroneously based its finding of contempt on Brame's gross negligence. We

further find that the Court of Appeals erred when it applied the manifest error rule to the present case.

Finally, we find that the evidence was insufficient to demonstrate that Brame willfully and deliberately

rubbed off the pen markings on the evidence bag, and therefore we reverse and render the judgments of the

Jasper County Circuit Court and the Court of Appeals.

¶16. REVERSED AND RENDERED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH,

WALLER AND COBB, JJ., CONCUR. McRAE, J., NOT

PARTICIPATING.