In Re: Anna L. J. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 17, 2013 Session
IN RE: ANNA L. J.
Appeal from the Juvenile Court for Williamson County
No. 37304 Sharon Guffee, Judge
No. M2013-00561-COA-R3-JV - Filed March 20, 2014
Husband and wife in dependent and neglect proceeding who were each held in criminal
contempt for violating an order that they have no contact with other parties to the proceeding
appeal their convictions, the sentences imposed, and other rulings of the trial court. We
affirm the holding that the husband was in contempt, vacate the sentence imposed and
remand the case for resentencing. We affirm the holding that the wife was in indirect
contempt and the sentence imposed; we reverse the holding that wife was in direct contempt.
In all other respects we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part and Reversed in Part; Case Remanded
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT, J.,
joined. F RANK G. C LEMENT, J R., J., filed a concurring opinion.
Brenda Rhoton Clark, Nashville, Tennessee, for the appellants, Robert H. Jackson and
Sabrina S. Jackson.
William P. Holloway and Michael T. Fort, Franklin, Tennessee, for the appellees, Dennis
Johnson and Wanda Johnson.
OPINION
FACTUAL AND PROCEDURAL HISTORY
On October 18, 2011 Robert and Sabrina Jackson filed a petition in Williamson
County Juvenile Court to declare Anna Johnson (“Anna”), the daughter of Dennis and
Wanda Johnson, dependent and neglected. The Jacksons asked the court to remove Anna
from the Johnsons’ home and place her in their care pending a hearing on the petition. A
preliminary hearing was begun on October 21, in the course of which the court appointed a
Guardian ad Litem, referred the matter to the Court Appointed Special Advocate to conduct
an investigation and make a report to the court, and reset the hearing for November 15; the
court allowed that Anna would remain in her parents’ home pending the later hearing. The
November 15 hearing was continued and on December 14 the court entered an agreed order
wherein the parties represented that they had settled the matter and had agreed “to certain
requirements regarding the child,” which were set forth in the order; the provision at issue
in this appeal states:
A reciprocal Restraining Order is in effect that [Jacksons and Johnsons], as
well as their families, must not have any contact with each other. The minor
children of both families are only allowed to have contact during school.
On June 18, 2012, the Johnsons filed a petition to hold Mr. Jackson in criminal
contempt of court, alleging that he had violated the “no contact” provision of the agreed
order on 183 occasions; on October 3 the Johnsons filed a petition for criminal contempt
against Ms. Jackson alleging that she violated the “no contact” provision of the agreed order
on June 18. On November 6 Mr. and Ms. Jackson filed answers to the contempt petitions
along with counter-petitions seeking to have the Johnsons held in criminal contempt for
alleged violations of the December 14, 2011 order. On December 4 Mr. Jackson filed a
motion to continue a hearing on the Johnsons’ petition against him which had been set for
January 25, 2013; as grounds Mr. Jackson stated that he had been indicted on charges related
to the events covered by the contempt charges1 and that a continuance was needed in order
that his counsel could adequately and competently defend him on the contempt charges. The
motion was denied.
A hearing was held on the contempt petitions which had been filed against the
Jacksons on January 25, 2013.2 At the conclusion of the testimony the court found Mr.
Jackson guilty of four counts of criminal contempt, fined him $50.00, and sentenced him to
ten days in jail on each count, with the jail sentences to run consecutively. The court found
Ms. Jackson guilty of one count of criminal contempt, fined her $50.00, and sentenced her
1
Mr. Jackson had been indicted for aggravated stalking, coercion of a witness and contributing to
the delinquency of a child.
2
There were several matters pending before the court at the time of the hearing, including the
Jacksons’ counter-petitions against the Johnsons; following a discussion between the court and counsel, the
court ruled that the Jacksons’ petitions should have been filed as separate petitions rather than counter-
petitions and would not be heard. That ruling is not an issue on appeal.
2
to ten days in jail.3 As court was adjourning and the parties were leaving the courtroom, the
court held Ms. Jackson in direct contempt and sentenced her to an additional ten days in jail;
the court ordered that she begin serving the sentence immediately.4 On January 31 Ms.
Jackson moved the court to suspend her sentence for direct contempt and/or to reinstate her
bond; the court denied the motion. The Jacksons appeal.
DISCUSSION
I. M OTION TO C ONTINUE
Mr. Jackson contends that the court erred in denying his request for a continuance of
the contempt proceeding because he could not “adequately and competently defend himself”
in the contempt proceeding until the matters for which he had been indicted were resolved.
The decision to grant or deny a motion for a continuance is within the discretion of
the trial court. Freeman Indus. LLC v. Eastman Chem. Co., 227 S.W.3d 561, 565 (Tenn. Ct.
App. 2006). The trial court’s decision will not be disturbed on appeal unless the record
shows an abuse of discretion. Burks v. Spurlin, No. M2006-00122-COA-R3-CV, 2007 WL
1341769 (Tenn. Ct. App. May 7, 2007). A discretionary decision will be set aside only when
the deciding court applied incorrect legal standards, reached an illogical conclusion, decided
the case on a clearly erroneous assessment of the evidence, or employed reasoning that will
cause injustice to the complaining party. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008).
Mr. Jackson does not contend that the court applied an incorrect legal standard,
reached an illogical conclusion, or that the court based its decision on a clearly erroneous
assessment of the evidence; rather he asserts that he was “unduly prejudiced by the procedure
employed by the Juvenile Court.”
The motion for continuance stated the following ground:
On November 16, 2012, [Mr. Jackson] was arrested at his home and
served with a Grand Jury indictment. . . . Every count alleged against him in
that indictment is covered in some way in [the Johnson’s] Petition for Criminal
Contempt against Mr. Jackson. Likewise, the facts alleged in the indictment
3
The Jacksons’ attorney moved the court to stay the execution of their sentences; the court granted
the motion and set a $1,500.00 bond for Mr. Jackson and a $500.00 bond for Ms. Jackson.
4
On February 4 the court entered an order incorporating its rulings from the bench.
3
also have bearing on the Jackson’s Counter Petitions for Criminal Contempt
against [the Johnsons] resulting in the Jackson’s inability to adequately present
their case against the Johnsons. Counsel cannot adequately and competently
defend Mr. Jackson or prosecute the contempts against the Johnsons until the
criminal matter is resolved against Mr. Jackson.
In his brief on appeal, he asserts that as a result of the denial of the continuance:
At that hearing, Mr. Jackson had to make the election to remain silent
and allow untruthful testimony to be introduced to the Court in support of the
Petition for Criminal Contempt against him or testify knowing that his
testimony could be admissible in the criminal matter pending against him. His
witness and daughter, Kem Jackson, who was also arrested and served with a
Grand Jury indictment pleaded the Fifth and did not provide any testimony as
to the June 5, 2012 incident with Anna Johnson. Her refusal to testify
prejudiced Mr. Jackson’s ability to defend himself.
Mr. Jackson has failed to show that the court abused its discretion in denying his
motion for a continuance. The fact that the conduct alleged in the indictment had some
bearing on the subject matter of the criminal contempt proceeding being prosecuted by the
Johnsons does not, in and of itself, show how Mr. Jackson’s counsel could not “adequately
and competently” defend him or how the denial of the continuance would cause him an
injustice. Similarly, the fact that the contempt proceeding occurred before the criminal
prosecution does not support a holding that his counsel could not defend the contempt
proceeding or that the denial of the continuance caused him an injustice in any other regard.5
We affirm the denial of the motion for a continuance.
5
Mr. Jackson does not specifically allege that his Fifth Amendment privilege against self-
incrimination was violated by the denial of the continuance and we fail to see how he could make such a
claim. In Rachels v. Steele, 633 S.W.2d 473 (Tenn. Ct. App. 1981), a defendant in a civil proceeding
asserted that the trial court abused its discretion in denying her request for a stay of proceedings in light of
a pending IRS criminal investigation; after discussing at length the contention that without a stay of the
action the defendant was facing “compulsory self-incrimination”, we affirmed the trial court, rejecting the
argument that proceeding in the civil matter forced the defendant to abandon her Fifth Amendment privilege
against self-incrimination. Mr. Jackson was examined by the court and confirmed that his decision to testify
was made knowingly, voluntarily and with the advice of his counsel in both cases; he then proceeded to
testify. Similarly, we fail to see how the fact that Mr. Jackson’s daughter, a witness in the contempt
proceeding, asserted her Fifth Amendment privilege and did not testify would support a holding that the trial
court erred in denying Mr. Jackson a continuance.
4
II. C RIMINAL C ONTEMPT
“An act of contempt is a willful or intentional act that offends the court and its
administration of justice.” Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000).6 A criminal
contempt proceeding is punitive in nature and its primary purpose is to vindicate the court’s
authority. Simmons v. Simmons, No. M2007-01582-COA-R3-CV, 2009 WL 837725 (Tenn.
Ct. App. 2009) (citing Thigpen v. Thigpen, 874 S.W.2d 51 (Tenn. Ct. App. 1993)). The
Tennessee Supreme Court has described such a proceeding as “sui generis—neither a civil
action nor a criminal prosecution as ordinarily understood, nor a criminal prosecution within
the Sixth Amendment of the United States Constitution.” Bowdon v. Bowdon, 278 S.W.2d
670, 672 (Tenn. 1955). As we explained in Brown v. Latham:
Although criminal contempt is a crime, for constitutional purposes, it is not the
same as a violation of the criminal law. A defendant committing an act that
is both contemptuous and a violation of the criminal law may be punished for
both without violating his right to plead former jeopardy. The proceeding in
contempt is for an offense against the court as an organ of public justice, and
not for a violation of the criminal law. . . . Thus, a defendant may be jailed for
criminal contempt without a trial by jury, but the same defendant may demand
a jury trial in a charge of violating a criminal statute if the statute provides that
incarceration is one of the choices for punishment.
Nos. 01-A-01-9401-CV00008, 01-A-01-9402-PB00061, 1994 WL 570102, at *2 (Tenn. Ct.
App. 1994) (citations and quotations omitted). As pertinent to the issues involved in this
case, our Supreme Court noted in State v. Maddux:
[T]here are two species of contempt, direct and indirect, which differ . . . in the
minimal procedures that will satisfy the requirements 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 819, 821 (Tenn. 1978).
6
An act of contempt may be either civil or criminal in nature, Reed v. Hamilton, 39 S.W.3d 115,
118 (Tenn. Ct. App. 2000); determining whether a punishment for contempt is civil or criminal depends on
the character and the purpose of the sanction imposed. Robinson v. Fulliton, 140 S.W.3d 304, 309 (Tenn.
Ct. App. 2003).
5
A person charged with criminal contempt is presumed innocent and may not be found
to be in criminal contempt absent proof beyond a reasonable doubt. Thigpen, 874 S.W.2d
at 53. Before a court can hold a person in contempt for violating a court order, the court
must find that: the order alleged to have been violated is lawful; the order is clear, specific,
and unambiguous; the person disobeyed or resisted the order; and the person’s violation was
“willful.” Konvalinka, 249 S.W.3d at 354–55. A person found guilty of criminal contempt
can be fined $50.00, imprisoned up to ten days, or both. Tenn. Code Ann. § 29-9-103.
On appeal “[i]ndividuals convicted of criminal contempt lose their presumption of
innocence and bear the burden of overcoming their presumption of guilt.” Thigpen, 874
S.W.2d at 53 (citing Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 912 (Tenn. 1964)
and Nuclear Fuel Servs. v. Local No. 3-677, Oil Chem., & Atomic Workers Int’l Union, 719
S.W.2d 550, 552 (Tenn. Crim. App. 1986)). We review the evidence in a light most
favorable to the prosecution and will only reverse a criminal contempt conviction when the
evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable
doubt. Thigpen, 874 S.W.2d at 53; Tenn. R. App. P. 13(e).
A. M R. J ACKSON
1. Finding of Guilt
The court found Mr. Jackson guilty of four counts of contempt, based on events which
occurred on May 28, June 1, June 3, and June 5, 2012. Mr. Jackson does not contest the
sufficiency of the evidence to support the court’s finding; rather, he contends that the court
erred in finding him guilty because his actions were not willful.
In Konvalinka, our Supreme Court discussed willfulness of conduct in the context of
contempt as follows:
[W]illful conduct consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent. Conduct is ‘willful’ if it is the
product of free will rather than coercion. Thus, a person acts ‘willfully’ if he
or she is a free agent, knows what he or she is doing, and intends to do what
he or she is doing.
Konvalinka, 249 S.W.3d at 357 (citations omitted).
In holding Mr. Jackson in contempt, the trial court made the following specific
findings:
6
As to the May 28th and June 1st contact, I find that the initial contact was
made by Elizabeth Johnson, but Mr. Jackson did nothing to terminate the
contact, and by his own admission, participated in an extended conversation
with the child.
Mr. Jackson testified he knew of the Court’s restraining order, and for some
reason that is simply implausible to this Court, he feels that just because he
didn’t initiate contact, he had the right to ongoing communication. It is
completely irrelevant to the Court what the conversation consisted of. Mr.
Jackson should have never responded. Emergencies are handled by the police.
As to June 3rd contact, the Court finds Mr. Jackson initiated contact with
Elizabeth Johnson, and she responded. The Court simply does not find Mr.
Jackson’s testimony credible, that it was accidental.
As to the June 5th contact with Anna Johnson, the Court finds him guilty
beyond a reasonable doubt by crediting the testimony of Anna Johnson, and
the defendant witness, Allena Every, that Mr. Jackson intentionally sought out
Anna, had extended conversation with her, offered her to stay at his home, if
there was nowhere safe for her to go.
He told Allena he saw Anna’s ID in the car, so he knew she was there. And
yet, he did not leave. He knew she had run away and threatened to call the
police, if she didn’t talk to him. He also told Allena he knew he wasn’t
supposed to talk to Anna because of the Court Order. If that’s not willful, I
don’t know what is. He admitted to being there and talking at length with the
child.
The evidence supports the finding that Mr. Jackson’s actions were willful. Mr.
Jackson testified that he received text messages from Elizabeth Johnson on May 28 and June
1 and that he responded to those messages. We agree with the court below that the fact that
he did not initiate the contact is irrelevant to the determination of willfulness; Mr. Jackson
made the determination to respond and to persist in the contact. With respect to the contact
on June 3, the trial court found Mr. Jackson’s explanation not to be credible; in his brief, Mr.
Jackson points to testimony which he contends shows that the contact was accidental. We
give “considerable deference” and “great weight” to the factual findings made by the trial
court that rest on determinations of credibility. See Cutler-Hammer v. Crabtree, 54 S.W.3d
748, 753 (Tenn. 2001); Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996). As to the
June 5 incident, Mr. Jackson testified that he drove to Nashville looking for Anna and that,
when he found her at her friend’s apartment, he spoke with her at length in his vehicle and
7
in the friend’s apartment. Mr. Jackson’s testimony with respect to this incident likewise
satisfies the standard of willfulness set forth in Konvalinka. We affirm the holding that Mr.
Jackson was in criminal contempt.7
2. Sentencing
Mr. Jackson was sentenced to ten days in jail, to be served consecutively, and fined
$50.00 for each of count of contempt. He contends that sentencing him to the maximum jail
time for each count was excessive and the court should have imposed concurrent rather than
consecutive sentences.
The standard we apply in reviewing sentencing decisions, including the determination
to impose consecutive sentences, is abuse of discretion, accompanied by a presumption of
reasonableness. See State v. Bise, 380 S.W.3d 682 (Tenn. 2012); State v. Pollard, ___ S.W.
3d ___, 2013 WL 6732667 (Tenn. Dec. 20, 2013). Where the trial court states in the record
the reasons it has imposed a particular sentence, we are able to afford the sentencing decision
the presumption of reasonableness; where it fails to do so, we may conduct a more detailed
review of the record and uphold the decision “so long as the statutory purposes and
principles, along with any applicable enhancement and mitigating factors, have been properly
addressed.” Bise, 380 S.W.3d at 706; see also Pollard, 2013 WL 6732667, at *9.8
In imposing the sentence, the court stated:
THE COURT: As to sentencing for Mr. Jackson, I do find that the events that
occurred on May 28th and June 1st are all part of a continuing event and not
separate actions. So therefore, it constitutes one count. One ten-day sentence
for May 28th; a ten-day sentence for June 1st. And I also sentence him to ten
days for the June 5th occurrence. Order him to pay a $50 fine for each of
7
We reject Mr. Jackson’s argument, based on Bowers v. Bowers, No. M2010-00311-COA-R3-CV,
2011 WL 1344258 (Tenn. Ct. App. April 7, 2011), that the trial court should have included in its written
order findings that Mr. Jackson had the ability to comply with the order and that his conduct was willful.
In Bowers, this court reversed an order holding a Father in criminal contempt because the trial court did not
make the requisite finding in its order that the Father had the ability to pay; we rejected the argument that
statements made by the court at the hearing constituted the requisite findings. In this case, however, the
written order attached and incorporated a transcript of the court’s ruling; this is sufficient. Moreover, the
order of which Mr. Jackson was found in contempt was a “no contact” order and, unlike a finding of
contempt in a delinquent child support proceeding, the only “ability” Mr. Jackson needed in order to comply
with the order was not to contact the Johnson family.
8
Tenn. R. Crim. P. 32(c)(1) requires the court to specify the reasons it has imposed concurrent or
consecutive sentences.
8
those days, May 28th, June 1st, June 5th, and order that the sentence be served
consecutively for a total of 30 days.
***
MS. CLARK: May it please the Court, if I could ask for a motion for a stay.
MR. HOLLOWAY: June 3rd, is that sentence going to be just suspended or
sentencing him to zero on that one? I had the 28th, the 1st, and the 5th were
Anna, and the June 3rd was the initial contact from Mr. Jackson.
THE COURT: I didn’t add that. You’re absolutely right. That’s an additional
ten days for a total of 40. I’m sorry, Mr. Holloway. Math is not my forte.
Tenn. Code Ann. § 29-9-103 provides that the punishment for contempt may be a fine
to the maximum amount of $50.00, imprisonment to a maximum of ten days, or both.
Statutory authority for the court to impose consecutive sentences is set forth at Tenn. Code
Ann. 40-35-115(b)(7):
(b) The court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:
***
(7) The defendant is sentenced for criminal contempt.
While the fact that Mr. Jackson was found guilty of four counts of criminal contempt
establishes a basis for imposing consecutive sentences, it is not apparent from the record why
the court imposed the maximum sentence for each count of contempt. In the absence of an
explanation from the court of why it imposed the maximum sentence for each count and for
the sentences to be served consecutively, in our review we cannot afford the sentencing
decision a presumption of reasonableness or conclude that the court did not abuse its
discretion.
Mr. Jackson requests that we suspend or substantially reduce the sentence, that the
sentences be ordered to run concurrently, and that we order that he be allowed to serve his
time on weekends. As we consider his request, we are mindful of the substantial discretion
vested in the trial courts in punishing contempts of court; we are equally mindful, as
instructed by In Re Sneed, that “the overall length of the sentence must be ‘justly deserved
in relation to the seriousness of the offense[s]’ and ‘no greater than that deserved’ under the
circumstances.” In re Sneed, 302 S.W.3d, 825 at 828–29 (internal citations omitted).
Appellate courts have authority to modify a sentence for criminal contempt when it appears
to be excessive. Thigpen, 874 S.W.2d at 54; Simpkins v. Simpkins, 374 S.W.3d 413, 425
(Tenn. Ct. App. 2012). We have determined, however, under the unique facts and
circumstances of this case, that it is appropriate to vacate the sentence imposed on Mr.
Jackson and remand the case for resentencing. Upon resentencing, the court shall state its
9
reasons for imposing concurrent or consecutive sentences and why the overall length of
sentence (the sum of the days sentenced for each count of contempt) was chosen.
B. M S. J ACKSON
On October 3, 2012, the Johnsons filed a petition seeking to hold Ms. Jackson in
criminal contempt alleging that, following a court hearing on June 18, Ms. Jackson verbally
confronted one of the Johnson children, Elizabeth; at the January 25 hearing, the court found
Ms. Jackson guilty. As the parties were leaving the January 25 hearing the court also held
Ms. Jackson in contempt for conduct directed toward the Johnsons.
1. Indirect contempt as alleged in the petition
In its ruling from the bench holding Ms. Jackson in contempt for the conduct alleged
in the petition, the trial court stated:
As to Defendant, Sabrina Jackson, I find her guilty of the one count on June
18th, and credit the testimony of Libby Johnson, that Ms. Jackson said, you
just put your sister in the grave, and also that the officers surrounded them. I
credit the testimony of the eye witness, Ms. Herr, that corroborates Libby’s
testimony. I agree with Mr. Holloway that it is absolutely ridiculous, the
testimony that we heard from Ms. Jackson, and I don’t find her to be a credible
witness.
In her brief on appeal, Ms. Jackson cites her testimony at the hearing and argues that the
evidence is insufficient to support the court’s finding of criminal contempt.
Ms. Jackson testified that she did not make the statement attributed to her on June 18;
other witnesses testified that she did. In resolving this conflict in testimony, the court
determined that Ms. Jackson was not credible and the witnesses were. As noted earlier, we
are to give substantial deference to a trial court’s factual findings based on credibility. See
Cutler-Hammer, 54 S.W.3d at 753; Randolph, 937 S.W.2d at 819. Accordingly, we affirm
the trial court’s finding that Ms. Jackson was in contempt for violating the December 14,
2011 order.9
9
For the reasons stated in footnote 7, we reject Ms. Jackson’s argument that the court should have
included in its written order findings that Ms. Jackson had the ability to comply with the order and that her
conduct was willful.
10
Ms. Jackson contends in the alternative that the sentence imposed was excessive and
should be reduced or suspended; she does not set forth reasons for her contention. The
sentence imposed was within the statutory authority of the court, see Tenn. Code Ann. § 29-
9-103, and we discern no abuse of discretion on the part of the trial court in this regard.
2. Direct Contempt
On January 25, 2013, after court adjourned and as the parties were leaving the
courtroom, the court summarily held Ms. Jackson in contempt of court, sentenced her to ten
days, and ordered that she begin serving the sentence immediately. Ms. Jackson contends
that the conduct for which she was held in direct contempt was not witnessed by the court
and, consequently, that “there should have been notice of the charges and a hearing by an
independent judge.”
The transcript of the January 25 proceeding shows the following colloquy took place
after court adjourned:
MR. PLUMMER [Anna’s Guardian ad litem]: Your Honor - -
MS. CLARK [the Jacksons’ attorney]: Excuse me, Your Honor - -
MR. PLUMMER: Please - - could you ask Ms. Jackson to come back in here,
please? She’s here. She’s walking past the Johnsons; and she’s giving them
a look and holding her hands up to her. She hasn’t learned a thing.
MS. CLARK: Well - - and he said, we like it.
MR. PLUMMER: Well, she went - -
MS. JACKSON: I didn’t say a word. I just held up my hands.
MS. CLARK: I watched her. She - -
MR. FORT [the Johnsons’ attorney]: Your Honor, exactly - - exactly what - -
in the presence of the Court during a proceeding.
THE COURT: Ten more days - -
MS. CLARK: Your Honor - -
THE COURT: - - to Ms. Jackson for contempt in the open presence of the
Court.
MR. FORT: Your Honor, I request there be no bond for that.
THE COURT: She’ll serve it right now.
As noted earlier, “[d]irect contempt is based upon acts committed in the presence of
the court, and may be punished summarily.” Maddux, 571 S.W.2d at 821. The colloquy
shows that the Guardian ad Litem reported to the court that Ms. Jackson while exiting the
courtroom raised her arms as she walked past the Johnsons and gave them some sort of look;
there is nothing to indicate that the court saw the conduct which led to Ms. Jackson’s being
held in contempt. The mere fact that the alleged conduct occurred in the same room as the
11
judge is not sufficient to deprive Ms. Jackson of her due process rights to notice of the
conduct alleged to constitute the contempt and opportunity for a hearing on that charge. This
is particularly true where the holding of contempt was based on the unsworn and
unchallenged statement of Mr. Plummer. See Maddux, 571 S.W.2d at 821 (noting that the
minimum due process requirements of notice and opportunity to be heard are not required
in direct contempt actions, but are required in indirect contempt actions). Moreover, the
court did not certify that the court saw the conduct, as required by Tenn. R. Crim. P. 42(a).
For these reasons, we must reverse the holding, including the sentence imposed.
III. O THER I SSUES
A. P AMELA H ERR AS A R EBUTTAL W ITNESS
Max Herr, a witness who had been subpoenaed to testify by the Jacksons, was ill and
unable to appear at the January 25 hearing; his mother, Pamela Herr, appeared to advise the
court of his condition. After three witnesses had testified and with the assistance of Pamela
Herr, Max’ testimony was taken by phone. After the Jacksons completed their proof, Ms.
Herr was called to testify on behalf of the Johnsons as a rebuttal witness. The Jacksons
objected to her testifying because she had been present in the courtroom throughout the
proceedings; the court overruled the objection. On appeal, the Jacksons contend that
allowing her to testify violated the rule of sequestration at Tenn. R. Evid. 615.10 They argue
that the Johnsons’ counsel was not “genuinely surprised” by the need for a rebuttal witness
and that Ms. Jackson was prejudiced by Ms. Herr’s testimony because the court relied upon
it in corroborating the testimony of Elizabeth Jackson, the only witness to the incident which
led to the finding of contempt.
10
Tenn. R. Evid. 615 states:
At the request of a party the court shall order witnesses, including rebuttal witnesses,
excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested
sequestration may be effective before voir dire, but in any event shall be effective before
opening statements. The court shall order all persons not to disclose by any means to
excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness.
This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person
designated by counsel for a party that is not a natural person, or (3) a person whose presence
is shown by a party to be essential to the presentation of the party’s cause. This rule does
not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court’s
discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony
from an unsequestered witness.
12
The trial court has discretion as to whether and how to apply Rule 615 and in
determining whether the Rule has been violated. Robinson v. State of Tenn., 340 F. Supp.
82, (1972). Allowance or disallowance of testimony by someone who has violated the rule
is likewise a matter of the trial court’s discretion. Ezell v. State, 413 S.W.2d 678 (Tenn.
1967). Accordingly, we apply the abuse of discretion standard in reviewing the decision to
allow Ms. Herr to testify. Applying these standards, the record does not support a
determination that the court abused its discretion in allowing Ms. Herr to testify.
In their brief on appeal, the Johnsons state that they did not become aware of Sabrina
Jackson’s theory relative to the event on June 18—that she did not make the remark to
Elizabeth Johnson but made a similar statement to her husband—until Ms. Jackson testified
at the January 25 hearing.11 Giving context to counsel’s decision to call her as a rebuttal
11
The petition for contempt alleged with respect to the June 18 incident that:
3. On June 18, 2012, the parties attended a final hearing on the Petition for Dependency and
Neglect filed in this matter. During a break and prior to the conclusion of the case, with
blatant disregard for this Court’s prior orders and the Court’s authority, Sabrina Jackson,
approached the minor child Elizabeth Johnson after her testimony and stated:
“I hope you know you killed your sister.”
According to witnesses, including a Williamson County Sheriff’s Department employee,
Ms. Jackson made this statement to the child more than one time.
In her Answer, Ms. Jackson responded: “Sabrina S. Jackson admits that she attended a motion and
judicial review hearing on the Petition for Dependency and Neglect filed in this matter. Mrs. Jackson denies
the remainder pf paragraph 3.” At the January 25 hearing, Ms. Jackson testified as follows relative to the
June 18 incident:
We, as the petitioners, Bob and I, and you [the Jacksons’ counsel]. And we had
been discussing the possibility of a settlement. And I was a little heated. We were the only
ones in the courtroom. Everyone else had left the courtroom. I did not believe that it was
to Anna’s best interest to settle. I didn’t believe that that would keep Anna safe. You left
prior to me. Bob and I continued our conversation, and we proceeded to exit the courtroom.
At that time, I believed the courtroom and the lobby would be totally clear since we
had lingered to talk. I was talking to Bob about how I felt, and he put his two hands on my
shoulders to try and calm me down. As I was exiting the door, I swung the door open. My
husband had his hands on my shoulders and I took a step out of the courtroom. As I was
swinging the doors open, I said to my husband - - and I was angry. My statement was, y’all
are putting Anna in her grave. And I was referring to Bob and you. I disagreed with how
things were proceeding.
13
witness, in the course of her examination Ms. Herr testified to the circumstances that led to
her being called as a witness:
Q. So have you just been sitting here in the courtroom, listening to the
proof, and all of a sudden, you let Counsel know that you were a witness?
MR. HOLLOWAY: Objection to relevance.
THE COURT: Overruled.
BY MS. CLARK:
Q. Have you been sitting in here in the courtroom, and when you heard
the testimony, is that when you let Counsel know that you were a witness to
that conversation?
A. I let Mr. Johnson know.
Q. When did you tell Mr. Johnson?
A. I think when these two were telling their story.
Q. Is it your testimony that you have not told either Mr. Holloway or
Mr. Fort about what you saw before you testified?
A. No, I did.
Q. And when did you tell them?
A. I don’t know. A half hour ago.
MS. CLARK: Thank you.
***
QUESTIONS BY MR. PLUMMER:
Q. Did you tell these attorneys during their testimony that this
is what happened, or did you tell them somewhere outside of
this courtroom?
A. No, during.
Q. While court was going on?
A. Yes.
MR. PLUMMER: That’s all.
The testimony of Ms. Herr supports counsel’s statement that counsel did not know that she
was a witness to the event and could rebut the testimony of Ms. Jackson until one half hour
before she was called; this was after she had heard the testimony of the other witnesses.
Under these circumstances, it was not an abuse of discretion for the court to allow her to
testify as a rebuttal witness.
And I took a step into the lobby after swinging the door open, and he proceeded to
walk me to the front door. I did not hesitate, did not stop, did not look at Libby directly. .
..
14
B. O BJECTION TO INTRODUCTION OF T EXT M ESSAGES
In the course of his testimony, Mr. Jackson sought to introduce an exhibit he had
created which consisted of a compilation of text messages between Elizabeth Johnson and
himself on May 28, 2012. The court sustained an objection to the introduction of the exhibit
on the grounds that it was not properly authenticated. In reliance on Dockery v. Dockery, No.
E2009-01059-COA-R3-CV, 2009 WL 3486662 (Tenn. Ct. App. Oct. 29, 2009), Mr. Jackson
asserts that the proposed exhibit was authenticated as required by Tenn. R. Evid. 901(a) and
that the trial court erred in excluding it.
Generally, questions concerning the admissibility of evidence rest within the sound
discretion of the trial court and this Court will not interfere with the exercise of this
discretion in the absence of a clear showing of abuse appearing on the face of the record. See
State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion
occurs when the trial court applies an incorrect legal standard or reaches a conclusion that
is “illogical or unreasonable and causes an injustice to the party complaining.” State v. Ruiz,
204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)). “[D]iscretionary choices are not left to a court’s inclination, but to its judgment; and
its judgment is to be guided by sound legal principles.” Martha S. Davis, Standards of
Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 58
(2000) (citations and internal quotation marks omitted).
Tenn. R. Evid. 901(a) states:
(a) General Provision. The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to the
court to support a finding by the trier of fact that the matter in question is what
its proponent claims.
Subsection (a) makes the trial court the arbiter of authentication issues. See Tenn. R. Evid.
901, cmt. (a).
Mr. Jackson testified that he had two numbers by which he could send and receive text
messages; he had more than one number because he lived in the country and that “the cell
phone service is erratic” and that he “couldn’t get texts reliably.” He testified that he
established one number, which he referred to as the “google voice text number,” in order to
send and receive text messages from his computer as well as his cell phone. The testimony
by which Mr. Jackson sought to establish the authenticity of the exhibit was the following:
15
Q. Mr. Jackson, can you identify what the document that was just handed to
you is?
A. Yes, this is - - I’ve cross-matched the charges, the accounts, against the
actual text transmissions between Libby and myself on 5/28. And since I use
Google Voice, it keeps a log of your texts. And because of this court hearing
starting sometime ago, I’ve started, also, logging all other texts that go to the
other number. I have programs that do that.
It’s not just because of court. Because of business, I make arrangements.
I make deals. I make contracts. And sometimes, now, we’re doing it by texts.
So I need to be able to recall it.
Q. Okay. Is this a document that your computer-generated program put
together, or did you type this out, listening to the text?
A. No. This is strictly all cut and paste from what the history is. I changed
the color so it would be easier for the Court to understand, you know, what
texts we’re offering here that isn’t in the count that helps explain the
conversation.
Q. So when you talk about cut and paste, you took the portion of the texts that
relate to the May 28th, 2012, text exchange; you cut that out?
A. Uh-huh.
Q. And that is what this document is?
A. Yes, ma’am.
The court then asked if the underlying records had been subpoenaed and was advised that
they had not; the court sustained the objection, expressing the following reservations:
THE COURT: Well, certainly, Mr. Jackson can testify as to any conversations
that he remembers from these text conversations. But if you want to introduce
this as a piece of evidence, I don’t think there’s any way to authenticate it
unless it was from the Google records, as they have introduced that’s been
authenticated from the provider.
MS. CLARK: Well, Your Honor, I would submit we don’t have to submit
records from Google. I don’t know that they keep them there, but they’re
certainly on Mr. Jackson’s computer.
THE COURT: Ms. Clark, what’s to say that this hasn’t been made up?
There’s nothing - - there’s no authenticity about this, other than that this could
have been conversations that Mr. Jackson just made up.12
12
After considering counsel’s argument that the court’s concern was a “question of credibility” of
Mr. Jackson, the court allowed that Mr. Jackson could testify regarding the events:
16
The holding in Dockery is not dispositive of the issue presented in this case. In
Dockery a wife sought to have her husband held in criminal contempt for violating an order
of protection. During the trial, Ms. Lowe, a witness called on behalf of Ms. Dockery,
testified that on two occasions Mr. Dockery contacted her on MySpace 13 and asked Ms. Lowe
to have Ms. Dockery contact him. When Ms. Dockery sought to introduce printouts of the
conversations into evidence, Mr. Dockery objected on the ground that the printouts were not
properly authenticated in accordance with Tenn. R. Evid. 901; the court overruled the
objection. On appeal, we affirmed the holding that Ms. Lowe’s testimony that she had
printed the text messages directly from her computer and that the copies accurately depicted
the conversation was sufficient authentication to allow the admission of the records into
evidence. Dockery, 2009 WL 3486662, at *7.
Unlike the proposed exhibit in Dockery, which was a printout of messages directly
from the witness’ computer, the exhibit Mr. Jackson proposed to introduce was compiled—
in part for purposes of trial—from records created and maintained by Google; the
information contained on the proposed exhibit was specifically chosen by him to be included.
There was no guarantee that the information contained on the exhibit was complete or,
indeed, what it purported to be. The proposed exhibit was introduced for identification
purposes and, having viewed it, we share the trial court’s reservations.
Mr. Jackson has failed to show that the trial court abused its discretion in excluding
the compilation of text messages; consequently, we affirm the trial court.14
IV. C ONCLUSION
For the foregoing reasons we affirm the holding that Mr. Jackson was in criminal
contempt of court, vacate the sentence imposed and remand the case for resentencing; we
THE COURT: Ms. Clark, you can ask your client anything you want about the events that
happened on this date. You can ask him anything that he recalls about it whatsoever.
We do not agree that the court’s concern was a credibility determination. The requirement that an exhibit
be authenticated is a condition precedent to the admissibility of evidence, unlike a credibility determination
which is a consideration of the weight to be afforded testimony which has already been admitted as evidence.
13
MySpace is a social networking website where individuals can communicate with each other by
posting messages. See http://mashable.com/category/myspace.
14
In any event, the court allowed Mr. Jackson to testify about the events covered in the text
messages and Mr. Jackson makes no complaint on appeal that he was denied the opportunity to testify
regarding those matters.
17
affirm the holding that Ms. Jackson was in indirect contempt and the sentence imposed for
that offense; we reverse the holding that she was in direct contempt and the sentence imposed
for that offense. In all other respects we affirm the judgment of the trial court.
________________________________
RICHARD H. DINKINS, JUDGE
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