Kesseh v. Commonwealth
| Docket Number | 2021-CA-0092-MR |
| Decision Date | 28 January 2022 |
| Parties | ALFRED T. KESSEH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT:
Christopher B. Thurman
BRIEF FOR APPELLEE:
Alfred T. Kesseh appeals from the Jefferson Circuit Court's order holding him in contempt and sentencing him to six months' incarceration. Because the written decision here is inconsistent with the trial court's oral directives to Kesseh, we must reluctantly reverse.
When orally setting pretrial conditions of release for Alfred Kesseh for numerous charges, including rape, the Jefferson Circuit Court orally instructed Kesseh to refrain from contacting any prosecuting witnesses. However, the court's subsequent bond order omitted that "no contact" language. The question is whether Kesseh could be held in criminal contempt for attempting to contact a victim via telephone. As innumerable Kentucky opinions have explained, when a court makes an oral statement which is inconsistent with a written decision, the written decision controls. See, e.g., Younger v. Evergreen Group, Inc., 363 S.W.3d 337, 340 (Ky. 2012).
The narrow facts germane to the extremely limited issues before us are essentially uncontested. Kesseh was charged with a host of offenses, including multiple counts of robbery and theft and one count of rape. After arraignment, the Jefferson Circuit Court lowered the bond previously set by the Jefferson District Court. During that proceeding, the court orally told Kesseh to refrain from contacting the Commonwealth's witnesses. However, the trial court's subsequent written order did not contain any "no contact" provisions, nor any other nonfinancial conditions.[1] Kesseh apparently was unable to post sufficient bond to be released prior to trial.
At trial, a jury found Kesseh guilty of most charges, including the rape. While in jail awaiting sentencing, Kesseh (or someone using his jail phone account PIN) placed a collect call to the number used to call the police the night of the rape. The recipient of the call, who was the rape victim's roommate's boyfriend, curiously accepted the collect charges and a brief, unpleasant conversation ensued. Kesseh did not succeed in his attempt to speak to the victim.
The Commonwealth filed a motion seeking to hold Kesseh in contempt. The motion states in relevant part that R. at 430. But the Commonwealth did not attach any such order to its motion, nor has it subsequently produced one. Instead, in late April 2019, the Commonwealth filed a motion for a protective order, to be heard on May 6, 2019, which asked the court to order that Kesseh "not be given physical possession" of certain discovery. R. at 51. On May 6, 2019, the court granted the protective order but that order merely states that Kesseh's counsel "may not provide copies of the medical records, associated phot[o]s and/or the victim's identifying information to the Defendant without first obtaining the permission of the Court." R. at 54. In other words, the Commonwealth's motion for contempt was incorrect regarding the existence of a circuit court order expressly forbidding Kesseh from contacting the victim.
The circuit court held a hearing on the motion for contempt, at which an audio recording of the court's oral admonition to Kesseh to refrain from contacting the Commonwealth's witnesses was played. Among other evidence, the audio of Kesseh's call with the victim's roommate's boyfriend was also played. At the hearing, the court forthrightly admitted that the lack of a written order prohibiting Kesseh from contacting the witnesses was problematic.
Nonetheless, soon thereafter, the court issued an order finding that there "was no doubt" that Kesseh tried to contact a witness and thus "acted in willful disregard toward and open disrespect for the aforementioned 'no contact' Order . . . ." R. at 469. The court thus granted the Commonwealth's motion and found Kesseh to be in contempt and ordered him to serve six months in the Jefferson County Jail consecutive to the twenty-seven-year sentence he received for the rape and other offenses. Kesseh then filed this appeal.[2]
Kesseh raises a number of interrelated issues but does not contest the trial court's factual conclusion that he placed the collect call from jail seeking to speak with the victim. Indeed, the evidence on that point is overwhelming.
Instead, as we construe it, the main issue raised by Kesseh (albeit framed somewhat differently than the manner in which we shall address it) is whether he may be held in contempt for violating a court's oral admonition which the court failed to include in its subsequent written order. A court possesses discretion in utilizing its contempt powers, and so we review under the abuse of discretion standard. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007).
The Commonwealth cites precedent generally standing for the proposition that a person may be held in contempt for violating a court's oral directive. See, e.g., Leibson v. Taylor, 721 S.W.2d 690 (Ky. 1986), overruled on other grounds by Shaffer v. Morgan, 815 S.W.2d 402 (Ky. 1991). But that precedent is materially distinguishable because it does not involve a later written order which omitted the oral directive.
We have not independently located, nor have the parties McCloud v. Commonwealth, 286 S.W.3d 780, 789 (Ky. 2009). We therefore need not address any of Kesseh's other arguments or the Commonwealth's responses thereto as we deem them to be irrelevant, redundant, unnecessary, or otherwise without merit.
"In Kentucky, a court speaks through the language of its orders and judgments." Glogower v. Crawford, 2 S.W.3d 784, 785 (Ky. 1999). Indeed, the Commonwealth admits in its brief that "[a]s a general rule, an oral pronouncement is not a judgment until it is reduced to writing." Brock v. Commonwealth, 407 S.W.3d 536, 538 (Ky. 2013). That rule is sound because the courts of Kentucky are courts of record and "[i]t is elementary" that the "only" official record is the written decision issued and signed by the court. Commonwealth v. Wilson, 280 Ky. 61, 132 S.W.2d 522, 523 (1939). After all, not every person can be in a courtroom to hear a judge's oral pronouncements but every person may review a court's final, written decision. Here, for example, the victim who Kesseh attempted to contact would have had no way of knowing from reviewing only the written record that Kesseh had been orally instructed not to contact her.
Similarly, though Kesseh did not actually post a sufficient bond to be released, any surety who would have assisted him in posting a bond would not have been able to discern from the circuit court's bond order that a condition of Kesseh's release was to refrain from contacting any witnesses. Thus, Kesseh's contempt is based upon grounds which would have been insufficient to lead to forfeiture of any bond posted by a surety. See Passmore v. Commonwealth, 580 S.W.3d 558, 563 (Ky. App. 2019) ().
In addition, during court proceedings judges "often voice views and opinions which may be inconsistent with their final judgments." Commonwealth v. Hicks, 869 S.W.2d 35, 38 (Ky. 1994), overruled on other grounds by Keeling v. Commonwealth, 381 S.W.3d 248, 258-59 (Ky. 2012). Judges, especially on motion days, must make numerous decisions in numerous cases involving numerous areas of the law. In so doing, judges may posit Socratic or leading questions to counsel or parties to test the logical underpinnings of any party's position. Moreover, the judge may have an initial view of a matter which evolves after the judge has had an opportunity to reflect and conduct legal research. In short, it would lead to "chaos" if a judge's oral comments "could be used to impeach the effect of a court's final judgment . . . ." Hicks, 869 S.W.2d at 38. Therefore, there is an ironclad line of cases stretching back many years espousing the same core tenets: a court officially speaks through its written decisions and so a written decision controls over any even "arguably contrary" oral comments made by a court. Terry v. Commonwealth, 253 S.W.3d 466, 477 (Ky. 2007...
To continue reading
Request your trial