State v. Cowan, Jr.
| Decision Date | 24 September 2001 |
| Docket Number | 00-02705 |
| Parties | STATE OF TENNESSEE v. THOMAS E. COWAN, JR.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Carter County, No. S15103
The defendant, Thomas E. Cowan, Jr., was found guilty of contempt. The trial court imposed a jail sentence of 10 days, six of which were suspended. In this appeal of right, the defendant argues that the evidence was insufficient; that the trial judge should not have acted as a witness; and that the sentence was excessive. Because the evidence was insufficient, the judgment is reversed and the cause dismissed.
Gary R. Wade, P.J., delivered the opinion of the court, in which Thomas T. Woodall and Robert W. Wedemeyer, JJ., joined.
Thomas E. Cowan, Jr., Pro Se.
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General; and Dennis Brooks, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONOn August 17, 2000, Sharon Nave, a probation officer, appeared before the trial judge charging Neil Friedman, who was represented by the defendant, a licensed attorney, with a violation of probation. Eight days later, just before a hearing to determine Friedman's release status, the trial judge provided a factual summary of the occurrence for the record:
Last Thursday Ms. Nave, the probation officer who's here, came to my office with a warrant for Violation of Probation. And the warrant alleges that that's the second warrant. He has violated the law and has been arrested for Aggravated Assault, felony, in Sullivan County. And Ms. Nave gave me a strange message when she came with the warrant that, Mr. Cowan, you've been calling her and calling her and that you wanted me to call you before I issued the warrant. I've never seen a request like that, and and I don't ask your permission or consider information before I issue warrants. Never have. Don't see any point to it. So I didn't call you, and issued the warrant. And within an hour, your secretary called the office and said you wanted to come over and talk to me. And I told Charlotte White, your secretary, that I did not want to talk to Mr. Cowan about the case, about Neil Friedman. And so she put you on the phone and you started telling me some information. And I asked you, Mr. Cowan, "is this ex parte?" And you said that in a manner it is, and I wished you a good afternoon and hung up on you.
After the trial judge completed his statement, the defendant stipulated the summary as "true."
At the hearing regarding Friedman's release status, the trial court observed that Friedman had since been convicted of assault and had allegedly lied to his probation officer. The trial court ordered that Friedman be held in jail without bail until a hearing in October of 2000. The defendant questioned the propriety of a probation revocation proceeding, arguing that Friedman's period of probation had ended well before the issuance of the warrant. Afterward, the following exchange took place:
The defendant, who appeared to be unaware of the possibility of a contempt citation, stated that he had intended to ask the trial judge to consider either releasing Friedman to participate in an undercover operation the TBI had arranged or to refrain from service of the warrant until the appearance date for the revocation hearing. He explained that he asked the probation officer to have "the judge to call me before he decides to hold [Friedman] without bond" so that he would have the opportunity to explain the mitigating circumstances. The defendant submitted that at the time, "the TBI did not want . . . the State Attorney General's Office to know about their" involvement in the drug investigation. The trial judge observed that some two years earlier he directed that Friedman cease contact with him, his family, or staff outside of the courtroom. At the conclusion of the hearing, the trial judge remarked as follows:
Well, whether you're concerned about drug interdiction or not, you can't violate the rules of ethics. That's fixing a case. And the thing that concerns me is we went through this on Mr. Friedman back in June of 1998 after his in this DUI case. After the Court of Criminal Appeals affirmed his conviction and sentence then people started trying to fix the case with me.(FN1) And it's in the record from the hearing in June the 24th of 1998. I had a bank president call my office and try to intervene on his behalf. I stated that in the record at that time. One of the members of the Industrial Board, which really made me mad, tried to influence me by going to my mother, and and she had been widowed within the last year. And then one of Mr. Friedman's employees went up to the family store and tried to get my brother to intervene. And as a result of that in the hearing on June 24th, the Court put Mr. Friedman that 's how he got on house arrest as was bond monitoring with a court order. Specifically it was it was placed in a minute entry, and I have the transcript of what I dictated into the minutes. On page five (5) of the transcript, "The Clerk is directed to make a minute entry in the record. The Court orders that you (speaking to Mr. Friedman) The Court's concern was that the probation report reflects he's got assets of five million dollars ($5,000,000.00), and setting a bond for him is is something that is not of particular significance like it is most people. And I go on, "Plain and simple, I'm not going to tolerate this kind of stuff," so forth. And but you did the same thing that I instructed him not to do. You contacted the Court in an ex parte conversation. That's called fixing the case.
Initially, the state asserts that the appeal should be dismissed because the notice was not timely filed. Rule 4 of the Tennessee Rules of Appellate Procedure, however, requires the notice to be filed within 30 days of the judgment. Here, the trial court imposed judgment on August 25, 2000. The notice of appeal was filed 31 days later on September 25, 2000. Because the due date of the notice, September 24, 2000, fell on a Sunday, it may not be included in the calculations. See Tenn. R. App. P. 21(a). The notice was timely filed.
The contempt powers of courts are established by statute: "For the effectual exercise of its powers, every court is vested with the power to punish for contempt, as provided for in this code." Tenn. Code Ann. § 16-1-103. Tennessee Code Annotated § 29-9-102 provides as follows:
Scope of power. The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
(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 such courts, in their official transactions;
(3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.
Criminal contempt is distinguished from civil contempt in that the latter is wholly remedial, serves a private purpose, and is not intended as a deterrent to offenses against the public. Higgins v. Lewis, 23 Tenn. App. 648, 137 S.W.2d 308 (1939). The purpose of civil contempt is to enforce a civil remedy. Gunn v. Southern Bell Tel. & Tel. Co., 201 Tenn. 38, 296 S.W.2d 843 (1956). A criminal contempt is designed to preserve the power and dignity of the court and to vindicate law and society. Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966); McCraw v. Adcox, 217 Tenn. 591, 399 S.W.2d 753 (1966); Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908 (1964). Direct contempt is based upon an individual's actions committed in the presence of the court and may be punished summarily; indirect contempt involves an act committed outside the presence of the court and requires notice and a hearing. State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978); State v. Turner, 914 S.W.2d 951, 954-55 (Tenn. Crim. App. 1995). Rule 42(a) of the Tennessee Rules of Criminal Procedure provides as follows:
A criminal contempt may be punished summarily if the judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. . . .
Generally, courts are limited in punishment to a fine of $50 and...
To continue reading
Request your trial