Alfred T. Kesseh v. Commonwealth of Kentucky

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0092-MR
ALFRED T. KESSEH APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 19-CR-000237
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: 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.
1
In its entirety, the body of the order provides:
This matter came before the Court on February 1, 2019, 2019, [sic] for a
bond hearing. The Defendant and counsel were all present.
Following discussion of record, and the Court being otherwise sufficiently
advised;
IT IS HEREBY ORDERED that, for the reasons stated on the record, the
Defendant’s bond is fixed at $100,000 full cash.
-2-
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 “[o]n May 6, 2019, the
Commonwealth moved for the entry of an order forbidding contact between the
defendant and his rape victim. The Court granted the motion.” 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
SO ORDERED this 1st day of February, 2019.
Record (R.) at 42. Similarly, the “bail conditions” section of the accompanying form AOC-
365.3 bond decision, which was not even signed by the judge, states only “corrected bond[.]” R.
at 41.
-3-
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
2
This appeal focuses exclusively on the contempt conviction. Kesseh’s appeal from his
conviction for rape and other felony offenses is pending before the Kentucky Supreme Court in
Kesseh v. Commonwealth, No. 2021-SC-0032-MR.
-4-
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 “cited us to
any precedent for this [precise factual] question. And we believe the issue can be
settled within the framework of our general precedent regarding the precedence
written orders take over verbal statements.” 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.
-5-
“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) (noting that “so far as this Court is aware, in
every case where a nonfinancial condition has been contemplated as a basis of
-6-
bond forfeiture, the nonfinancial condition at issue was – whether by a checked
box, filled-in blank, or otherwise – explicitly stated in an effective court order and
ensuing bond agreement.”).
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).
Perhaps the written order and the trial court’s oral comments could be
construed not to be in direct opposition to each other since the written order does
-7-
not expressly countermand the oral directive by granting permission for Kesseh to
contact the witness(es). However, viewed from another perspective, the written
order is contrary to, or at least inconsistent with, the court’s oral pronouncements
since the court orally imposed a nonfinancial condition of release whereas the
written order contains no nonfinancial conditions. Whether the written order and
the court’s oral comments are viewed as directly conflicting or only being
inconsistent with each other, the bedrock principles previously discussed regarding
the primacy of written orders apply.
Courts of record, including the Jefferson Circuit Court, speak only
through their written orders, Glogower, 2 S.W.3d at 785, and so oral
pronouncements not later included in the written decision are not considered part
of a judgment. Brock, 407 S.W.3d at 538. As our Supreme Court succinctly held:
“When there is an inconsistency between oral statements of a court and an order
reduced to writing, the latter must prevail.” Commonwealth v. Taber, 941 S.W.2d
463, 464 (Ky. 1997), overruled on other grounds by Keeling v. Commonwealth,
381 S.W.3d 248, 258-59 (Ky. 2012).
As the written decision here contains no language whatsoever which
prohibited Kesseh from contacting the witness(es), it is, at bare minimum,
inconsistent with the court’s oral statements. Consequently, the written decision
controls. As a result, in practical terms, Kesseh is correct when he argues that the
-8-
oral prohibition on contacting witnesses had been superseded and thus “did not
exist at the time of the misconduct.” Reply brief, p. 2.
The circuit court noted in its contempt decision that the district court’s
bond order(s) prohibited Kesseh from contacting the witness(es). That is true, but
irrelevant. The district court’s bond decision became moot and unenforceable once
the circuit court issued its own bond decision, Jeter v. Commonwealth, 554 S.W.3d
850, 852 (Ky. 2018), and “[n]owhere in its record did the circuit court attach any
conditions upon [Kesseh’s] bail, or specify that it was continuing any of the
conditions set by the district court.” Passmore, 580 S.W.3d at 562. So, once the
issue of Kesseh’s bail passed from district to circuit court, “the district court’s prior
bail order expired, and any requirements which attended it did not automatically
‘carry over,’ but instead became moot and unenforceable.” Id. at 563. Similarly,
though Kesseh admits in his brief that the court could have validly incorporated by
reference its oral findings and statements into the written bond order, Jeter, 554
S.W.3d at 854, the order at issue does not contain any incorporation language.
Boiling matters down to their essence, Kesseh was found in contempt
for violating an oral admonition not contained in the court’s subsequent written
-9-
decision. Since written decisions trump any inconsistent oral comments, Kesseh
cannot properly be held in contempt.3
We recognize that this result is likely distasteful to many, and we
share the circuit court’s disapproval of Kesseh’s conduct. We also in no way
excuse any person from disobeying an oral directive of a court. However, under
the unique facts of this case, the circuit court’s inexplicable failure to include any
“no contact” language in its written order means that Kesseh’s phone call, though
improper, did not violate a then-operative, mandatory court directive. Because a
person cannot be held in contempt for disobeying a command which had been
superseded or otherwise rendered inoperative at the time it was disobeyed, the
circuit court abused its discretion in finding Kesseh to be in contempt. We express
no opinion as to whether on remand Kesseh may properly be charged with any
criminal offense(s) for attempting to contact the victim.
For the foregoing reasons, the order of the Jefferson Circuit Court
finding Alfred Kesseh to be in contempt of court is reversed and the case is
remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
3
At the contempt hearing, there was a discussion about how it is not absolutely necessary for a
written order to be violated for a person to be held in contempt. That is, of course, correct. For
example, as discussed at the hearing, a person who egregiously misbehaves in court may be held
in contempt. But here, there was a written order–it just did not forbid the conduct which forms
the sole basis for Kesseh’s contempt conviction.
-10-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher B. Thurman Daniel J. Cameron
Louisville, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
-11-