State of Tennessee v. Bradley Keith Cathey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 9, 2016
STATE OF TENNESSEE v. BRADLEY KEITH CATHEY
Appeal from the Circuit Court for Dickson County
No. 2015-CR-211, 2015-CR-212, 2015-CR-339, 2015-CR-340
Suzanne Lockert-Mash, Judge
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No. M2016-00384-CCA-R3-CD – September 1, 2016
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The defendant, Bradley Keith Cathey, appeals the Dickson County Circuit Court’s
finding of criminal contempt for failing to appear at a scheduled attorney setting. The
trial court found the defendant in direct contempt of court and summarily sentenced him
to ten days incarceration. On appeal, the defendant contends that the trial court erred in
finding him in summary contempt. Following our review, the judgment of the trial court
is reversed and vacated. The cause is remanded for a hearing in accordance with
Tennessee Rule of Criminal Procedure 42(b).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
Vacated, and Remanded.
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR.,
and ROBERT H. MONTGOMERY, JR., JJ., joined.
Olin J. Baker, Charlotte, Tennessee, for the appellant, Bradley Keith Cathey.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; W. Ray Crouch, Jr., District Attorney General; for the appellee, State
of Tennessee.
OPINION
I. Factual and Procedural History
The defendant, Bradley Keith Cathey, was indicted for domestic assault,
vandalism over $1000 but less than $10,000, and two instances of driving under the
influence. The defendant appeared in the Dickson County Circuit Court on September
18, 2015. The court ordered the defendant to appear again with counsel on January 11,
2016. The defendant failed to appear at the January 11 court setting, and the court issued
a capias warrant and conditional bond forfeiture against the defendant. The defendant
appeared with counsel before the court on January 15, 2016, and through his attorney,
moved to have the capias warrant and bond forfeiture set aside.
The court denied the defendant’s motion. During the hearing on the motion to set
aside, the defendant’s counsel explained that the defendant’s failure to appear was due to
a simple scheduling mistake. Defense counsel represented that the defendant mistakenly
marked Monday, January 18, 2016 as the next court setting, rather than the actual date of
Monday, January 11, 2016. The trial court found the defendant in contempt, stating:
THE COURT: All right. Well, we’re going to try him on January 25th.
The defendant was here on September 18th. He was told to be back here
with counsel. He failed to show up. We revoked his bond. Since he now
has counsel, I’ll hold him in contempt and let him serve 10 days. He can
come out after 10 days.
The record is quite sparse and bereft of any additional findings by the trial court as
to the defendant’s contempt charge. The trial court summarily sentenced the defendant to
ten days incarceration. From the record it appears that the trial court did not enter a
written order, signed by the judge, and establishing the basis for the contempt finding and
the punishment ordered. The defendant requested bond for the contempt charges, and the
court took the matter under advisement. This timely appeal followed.
II. Analysis
On appeal, the defendant argues that the trial court erred when it summarily
convicted him of criminal contempt. The defendant contends that his conduct was not
willful misbehavior, and it did not occur in the presence of the trial court. The State
agrees with the defendant, and concedes that the trial court committed reversible error.
We agree.
Tennessee Code Annotated section 29-9-102 authorizes courts to inflict
punishments for “willful misbehavior.” Tenn. Code Ann. § 29-9-102. Specifically, the
statute states:
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:
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(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 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.
Tenn. Code Ann. § 29-9-102.
Courts generally recognize two distinct forms of contempt, civil and criminal.
State v. Tina M. Dixon, No. M2015-02382-CCA-R3-CD, 2012 WL 2356523, at *9
(Tenn. Crim. App. June 21, 2012). Civil contempt is remedial in nature and is typically
used to ensure compliance with a court order. Whereas criminal contempt is punitive in
nature and is generally intended to protect and uphold the authority of the court. State v.
Christopher Anderson, W2014-02219-CCA-R3-CD, 2015 WL 5278378, at *3 (Tenn.
Crim. App. Sept. 9, 2015) (citing Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.
1993)). Criminal contempt can be further classified as direct or indirect contempt. Black
v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). Direct contempt occurs where the
misbehavior is committed in the court’s presence. Id. Indirect contempt occurs where
the misbehavior is committed outside the court’s presence. Id. Whether conduct is
classified as direct or indirect contempt dictates what process must be afforded the
defendant.
Tennessee Rule of Criminal Procedure 42(a) allows a judge to summarily find a
defendant guilty of direct criminal contempt for willful misconduct committed in the
court’s presence. Tenn. R. Crim. P. 42(a). If the court finds a defendant to be in
contempt the court shall enter an order on the record reciting the facts and signed by the
judge. Id. However, where the court does not witness the defendant’s willful
misconduct, Tennessee Rule of Criminal Procedure 42(b) requires notice, a hearing, and
recusal of the trial court judge if the contempt involves disrespect to or criticism of the
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trial court judge. Tenn. R. Crim. P. 42(b). Rule 42(b) requires the court to: (1) establish
the time and place of the hearing; (2) allow the alleged contemnor a reasonable amount of
time to prepare a defense; and (3) state the essential facts constituting the contempt
charge and describe it as such. Id. The notice must be given either orally in open court,
or in writing on initiation of the judge or the district attorney general, an attorney
appointed by the court for that purpose, or an attorney representing a party in the case.
Id. The charged contemnor is also entitled to bail on the contempt charge. Id. If after
the hearing the court finds the alleged contemnor to be in contempt, the court must enter
an order setting the punishment. Tenn. R. Crim. P. 42 (b)(5). Courts should rigorously
adhere to these procedural safeguards because of the unique due process considerations in
criminal proceedings. Christopher Anderson, 2015 WL 5278378, at *4. The defendant
in a criminal contempt proceeding must be proven guilty beyond a reasonable doubt.
Malmquist v. Malmquist, 415 S.W.3d 826 (Tenn. 2011) (citing Barber v. Chapman,
M2003-00378-COA-R3-CV, 2004 WL 343799, at *2 (Tenn. Ct. App. Feb. 23, 2004)).
The record indicates that the court relied solely on the defendant’s failure to
appear at the January 11, 2016 scheduled appearance in reaching its decision. “A willful
failure to appear as directed is not subject to summary punishment as direct contempt.”
Bailey v. Crum, 183 S.W.3d 383, 389 (Tenn. Ct. App. 2005). In Bailey, the appellate
court observed that although the trial court witnessed the defendant’s absence from the
hearing, the trial court did not witness the defendant’s alleged willful conduct. Id.
The same is true in the instant case. Although the trial court witnessed the
defendant’s absence from the January 11, 2016 attorney setting, the defendant’s alleged
willful conduct occurred outside of the court’s presence or ability to perceive. Thus, the
trial court erred by proceeding summarily under Tennessee Rule of Criminal Procedure
42(a), and should have followed the notice and hearing procedures under Tennessee Rule
of Criminal Procedure 42(b). The defendant was not provided with notice, an adequate
opportunity to prepare a defense, and an opportunity to be heard. Furthermore, the
defendant was entitled to bail on the contempt charge, which there is no indication in the
record, that such bail was provided.
In conclusion, the trial court erred when it summarily found the defendant guilty
of criminal contempt, and denied the defendant notice and a hearing as required by
Tennessee Rule of Criminal Procedure 42(b). Furthermore, the trial court failed to enter
a written order in the record setting forth the punishment as required by Tennessee Rule
of Criminal Procedure 42(b)(5). Therefore, the trial court’s judgment is reversed, the
conviction vacated, and the case remanded for a hearing after proper notice.
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J. ROSS DYER, JUDGE
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