State v. Turner

• Decision Date: 23 August 1995
• Citation: 914 S.W.2d 951
• Parties: STATE of Tennessee, Appellee, v. Melvin G. TURNER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 951

914 S.W.2d 951

STATE of Tennessee, Appellee, v. Melvin G. TURNER, Appellant.

Court of Criminal Appeals of Tennessee at Jackson.

Aug. 23, 1995.

Permission to Appeal Denied by

Supreme Court Feb. 5, 1996.

Lionel R. Barrett, Jr., Nashville, Kim Sims, Memphis, for Appellant.

Charles W. Burson, Attorney General & Reporter, Joel W. Perry, Assistant Attorney General, Criminal Justice Division, Nashville, John W. Pierotti, District Attorney General, Phillip G. Harris, Assistant District Attorney General, Memphis, for Appellee.

OPINION

WHITE, Judge.

Appellant, Melvin G. Turner, appeals as of right from three judgments of contempt summarily ordered by the Criminal Court for Shelby County. Appellant was sentenced to ten days in the county jail and a fifty dollar fine for each contempt. ¹ The sentences are to be served consecutively. ²

On appeal, appellant questions whether his conduct constituted criminal contempt, whether the trial court's summary contempt orders denied his right to due process, and whether the multiple contempt orders violated the double jeopardy provisions of the United States and Tennessee Constitutions. ³ We affirm the trial courts imposition of summary contempt orders and the sentences in this case.

The record indicates that the contempt orders arose from a misdemeanor trial held in Shelby County Criminal Court before Judge Joseph McCartie. Appellant was counsel of record for the defendant in the criminal trial. There was no court reporter present; as a result, preparation of the record of the contempt proceedings has involved some procedural difficulties which have complicated the resolution of this appeal. We will recount the procedural history in detail to place this case in proper perspective.

I.

The summary orders of contempt were certified by the trial court pursuant to Rule 42(a), Tennessee Rules of Criminal Procedure. Appellant filed a notice of appeal on the same day and also made a $1000 appeal bond. On May 25, 1993, counsel for appellant filed a motion asking the court to reconsider the contempt orders. There is no ruling on this motion in the record. On July 23, 1993, appellant filed a designation of the record that indicated a statement of the evidence would be filed pursuant to Tennessee Rules of Appellate Procedure Rule 24(c). On September 16, 1993, this court granted appellant an extension of time in which to file the statement. A statement of evidence was filed thereafter with the clerk of this court, rather than with the clerk of the trial court as required by Rule 24(c).

After appellant filed a brief in this court, the state moved to have the statement of the evidence stricken from the record due to its procedural deficiencies. This court granted the motion and ordered appellant and the state to file proper statements of the evidence and any objections with the clerk of the trial court pursuant to Rule 24(c). The trial court was directed to resolve disputes pursuant to the Rule. Tenn.R.App.P. 24(e).

Appellant and the state filed proposed statements of the evidence in the trial court. The trial court certified the following statement of the evidence:

Pursuant to Tennessee Rules of Appellate Procedure 24(c) and after examining the Statement of the Evidence filed by the Defendant and the State in this cause, the Court finds that there is a conflict between the two and therefore will submit the following as the Statement of Evidence in the matter of the summary contempt finding against [appellant].

On April 21, 1993 the Court was engaged in the trial of Emmett Woods. This trial was being conducted with a jury but there was no court reporter retained by the defense. Mr. Woods was being defended by [appellant]. The State was represented by Assistant District Attorney Phillip G. Harris. The State called as a witness, Beverly Lester, and during the cross-examination of this witness the State made an objection. The Court sustained the objection and [appellant] began arguing with the Court in a disrespectful and loud voice. The Court talked firmly but professionally with [appellant] and urged him to calm down. [Appellant] then shouted at [the court], in the presence of the jury, "don't you raise your voice to me." [The court] sent the jury out of the courtroom and after they left found [appellant] in summary contempt for his outburst and assessed 10 days in jail and a fine of $50. [Appellant] then responded, "I don't care what you do. Send me to jail." At that point [appellant] turned to leave the court room and had to be stopped by deputies. He stated that "I am not going to jail." [Appellant] then spoke to the Court in a loud and disrespectful voice, "You think you are powerful on that bench, send me to jail." The Court then assessed another summary contempt on [appellant] and sentenced him to an additional 10 days and a fine of $50 to be served consecutively to the first sentence. [Appellant] then demanded that the Court declare a mistrial. He went on to challenge the Court by saying, "You are not going to have anything to do with any of my cases. I am not afraid of you or your contempts." The Court again found [appellant] in summary contempt and assessed 10 days and a fine of $50 to be served consecutively to the previous sentence. [Appellant] was then removed from the courtroom. This all occurred in the courtroom, in the presence of the judge, the courtroom personnel and the prosecutor.

Subsequently, the trial court entered an order approving the above statement of the evidence and making it part of the record on appeal. The order, signed by the trial judge, bears a handwritten notation that "[t]he Court does not approve the delayed statement of the evidence as filed by the [attorney] for [appellant] and has filed its own statement of the evidence." The order is also signed by an assistant district attorney and includes the handwritten statement that "[t]he State objects to [appellant's] statement of the evidence and pursuant to TRAP 24(c) has prepared an alternative statement and had filed [it] with the Clerk." Finally, the order is signed by counsel for appellant. ⁴

Appellant filed an objection to the statement of evidence approved by the trial court. ⁵ Appellant conceded that "[a]bsent extraordinary circumstances the determination of the trial court is conclusive" regarding the content of the record. However, appellant asserted that the case presented "extraordinary circumstances" to nullify that rule. However, he did not pursue this issue in his brief, nor did he request permission to file a supplemental brief after the trial court approved a different statement of the evidence than that reflected in appellant's brief. Likewise, appellant did not file a reply to the brief of the state. ⁶ It is with this procedural backdrop that we turn to the law governing contempt in Tennessee.

II.

A.

Contempts may be criminal or civil in nature depending on whether the purpose of the contempt is to coerce or to punish. In State ex rel. Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974 (1917), our supreme court made the following distinctions:

A "civil contempt" is one where a person refuses or fails to comply with an order of court in a civil case; and punishment is meted at the instance and for the benefit of a party litigant. The proceeding is in furtherance of the right of a private person which the court determined that he, as a litigant, is entitled to. To this class of contempt belong such an act as the refusal to pay alimony, as ordered.... If imprisonment be ordered it is remedial and coercive in character, having relation to the compelling of the doing of something by the contemnor which when done will work his discharge. As has been said, in such case the one imprisoned "carries the keys to his prison in his own pocket...."

"Criminal contempts," on the other hand, are punitive in character, and the proceeding is to vindicate the authority of the law, and the court as an organ of society. Such contempts, while they may arise in private litigation, in a very true sense "raise an issue between the public and the accused."

State ex rel Anderson v. Daugherty, 191 S.W. at 974 (citations omitted). See also Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542, 543 (1966); Sherrod v. Wix, 849 S.W.2d 780, 786, n. 4 (Tenn.App.1992), perm. to appeal denied, (Tenn.1993). ⁷ Contempt may be further categorized with regard to where the contemptuous conduct takes place. In State v. Maddux, 571 S.W.2d 819 (Tenn.1978), our supreme court said:

[T]here are two species of contempt, direct and indirect, which differ, among other ways, in the minimal procedure that will satisfy the requirement of due process in the case of each. Direct contempt is based upon acts committed in the presence of the court, and may be punished summarily. Indirect contempt is based upon acts not committed in the presence of the court, and may be punished only after the offender has been given notice, and the opportunity to respond to the charges at a hearing.

State v. Maddux, 571 S.W.2d at 821 (emphasis added) (citations omitted); see also State v. Creasy, 885 S.W.2d 829, 833 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1994).

In Tennessee, the court's authority to punish certain acts as contempt derives from statute, and is limited to the forms of conduct set forth in Tennessee Code Annotated Section 29-9-102:

(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administrations 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 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 process or proceedings of the court.

(5) Willfully conversing with jurors in relation to the merits of the...