Robert Patrick Terrell v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KM-00785-COA

ROBERT PATRICK TERRELL A/K/A ROBERT APPELLANT
P. TERRELL A/K/A PATRICK TERRELL

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/21/2014
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: J.M. RITCHEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA H. TEDDER
DISTRICT ATTORNEY: HALDON KITTRELL
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION: CONVICTED OF INDIRECT CRIMINAL
CONTEMPT AND SENTENCED TO SIX
MONTHS INCARCERATION IN THE
CUSTODY OF THE JEFFERSON DAVIS
COUNTY SHERIFF OR ANOTHER
COUNTY WITHIN THE FIFTEENTH
DISTRICT
DISPOSITION: REVERSED AND REMANDED - 06/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., ROBERTS AND JAMES, JJ.

ROBERTS, J., FOR THE COURT:

¶1. Robert Patrick Terrell appeals his conviction of indirect criminal contempt and the

revocation of his bail on other charges. Terrell alleges that the trial judge committed error

by failing to recuse himself from Terrell’s contempt proceedings, and this, along with a lack
of service of process, violated his due-process rights. Additionally, Terrell argues that his

conviction for indirect or constructive contempt is against the weight of the evidence.

Finally, Terrell alleges that the trial judge abused his discretion and exceeded his authority

by revoking Terrell’s bond on a pending felony indictment after conviction for contempt.

¶2. For reasons discussed below, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶3. Terrell was indicted in Jefferson Davis County on March 12, 2013, on twenty separate

criminal offenses, including mail fraud, conspiracy to commit mail fraud, identity fraud,

conspiracy to commit identity fraud, timber theft, conspiracy to commit timber theft, false

pretenses, and conspiracy to commit false pretenses. On February 19, 2014, the day set for

trial, members of the jury venire arrived for jury duty. However, the court reporter was ill

that day, requiring a continuance of trial and jury selection. No jurors were sworn in,

questioned, or issued any identification on February 19. The trial judge continued Terrell’s

trial until the next day, February 20, 2014, commanding the jury venire to return at 8:30 a.m.

Terrell was not present in the courtroom at the time the trial judge dismissed the jurors.

Upon dismissal of the jurors, two investigators from the district attorney’s office followed

the jury venire out in order to ensure no one had any improper contact with the venire

members. As they exited the courthouse, the investigators spotted Terrell engaging in a brief,

five to ten second conversation with two men in the parking lot. Investigators later identified

the two men as members of the jury venire and reported the incident to the district attorney’s

office.

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¶4. The next morning, on February 20, 2014, prior to the commencement of trial and jury

selection, one of the gentlemen Terrell spoke to, Frecardo Ashley, contacted the circuit clerk

and asked to be removed from the venire. Ashley requested his removal from the venire

because he had received a telephone call from Terrell that morning. After this revelation and

before proceedings began, an on-the-record conference was held between the assistant

district attorneys (ADA), Terrell’s attorney, and the trial judge. One of the ADAs informed

the trial judge of the alleged conversation the day prior and requested that the trial judge

immediately incarcerate Terrell until the conclusion of the trial in order to prevent jury

tampering. The trial judge refused to immediately jail Terrell without a hearing but did

indicate that there would be an investigation and formal hearing on the matter. The trial

judge then asked for Ashley to be brought before the court, sworn in, and questioned

regarding his relationship with Terrell. After questioning by the State, the trial judge excused

Ashley for cause. The trial judge then brought the jury venire back into the courtroom, swore

them in, and began qualifying the jury.

¶5. After excusing several venire members, the trial judge then inquired as to whether any

venire members knew Terrell. Stephen Abram, one of the men the investigators saw Terrell

speak to the day before, told the court he was familiar with Terrell from church. The trial

judge asked Abram if he had any contact with Terrell lately. Abram responded that their only

contact had been exchanging a, “Hey, how you doing?” Abram also acknowledged that he

had seen Terrell in and around the courthouse. However, he denied having a conversation

with Terrell. The court then held a conference outside the presence of the jury, wherein the

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trial judge, upon his own motion, called the investigator who allegedly saw Terrell

conversing with the venire members. Investigator Darrell Perkins was then sworn in and

testified that he witnessed Terrell greeting and speaking to Abrams and Ashley outside the

courthouse, as though the three men were friends. Once the trial judge concluded his

questioning of Investigator Perkins, he then issued “a show[-]cause order for a hearing to be

held to determine why [Terrell] should not be held in contempt of court.” The trial judge

also declared that the type of alleged contempt was indirect (or constructive), as it had

occurred outside the presence of the trial court. After a challenge to the charge by Terrell’s

attorney, the trial judge stated that the State was not “bringing the charges,” but that the court

was issuing an order. The State then noted that it had made an off-the-record, oral motion

for contempt. Terrell’s attorney objected to having the hearing the following day, stating that

Terrell was owed service of process under Mississippi Rule of Civil Procedure 81, as well

as noting the impracticality of preparation on such short notice. After noting the objections,

the judge dismissed the jury panel based on the allegations of jury tampering and contempt.

¶6. Once the jury had been dismissed, the trial judge ordered that a hearing be held the

following morning to determine whether Terrell was in indirect contempt of court. The judge

stated that his oral, on-the-record show-cause order would serve as Terrell’s notice of the

charges against him, unless his attorney could show him caselaw requiring the court to wait

any longer. The trial judge then ordered the circuit clerk to issue subpoenas to Abram,

Ashley, and the two investigators from the district attorney’s office. When Terrell’s attorney

inquired as to his ability to sufficiently subpoena witnesses for the contempt hearing, and

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again objected to the setting, the court stated, “[I]f you can show me some caselaw, I’d be

happy to reconsider and wait seven days. But there is none. . . . We’re going forward.” The

ADA then interjected in an attempt to answer Terrell’s attorney’s fears of inadequate time

to prepare, but the trial judge stated:

You don’t have to answer that. I mean I’ve addressed it and really I can sit
here all morning listening to back and forth. But based on what I’ve heard
today and seen, I am in total complete search for what the law and the right
thing to do is. And I know one thing not to do is to continue to be talked out
of the leadership that I know is right in these matters.

With that statement, he concluded the day’s proceedings.

¶7. At 4:00 p.m. on February 20, the State electronically mailed a “Petition to Find Robert

Patrick Terrell in Contempt of Court” to Terrell’s attorney. In that petition, the State alleged

that Terrell violated Uniform Rule of Circuit and County Court 3.04, which provides:

“Except as provided by these rules, no person or attorney for the person involved in any case

may communicate with or offer any favor, however slight, to any person on the jury venire.”

In support, the State alleged in the petition that Terrell had spoken with Ashley and Abram,

members of the jury panel, outside the courthouse on February 19. The State also alleged

that Terrell contacted Ashley by telephone on the morning of February 20, which intimidated

Ashley. These action were alleged to be “patently contemptuous” and “calculated to curry

favor . . . and influence the jury panel members to [Terrell’s] benefit and favor,” a violation

of Rule 3.04. This petition was filed with the circuit clerk the morning of February 21, 2014,

prior to the commencement of Terrell’s contempt hearing.

¶8. That same morning, February 21, 2014, Terrell’s attorney cited In re McDonald, 98

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So. 3d 1040 (Miss. 2012), to again object to the lack of process and adequate notice for

Terrell. He also objected to the that the trial judge’s active participation in the initiation of

the contempt proceedings and asked that the trial judge recuse himself. The State objected,

claiming the trial court did not initiate the contempt hearing, but rather, it was brought by the

State, which had filed a petition with the court that morning. The contempt hearing then

began.

¶9. Investigator Perkins testified that on February 19, 2014, he witnessed Terrell briefly

speaking with two gentlemen, who were later identified as Abram and Ashley. These two

men were not identified by any badge or insignia making known they were jurors. He also

testified that he received a call from Ashley on February 20, 2014, in regard to a phone

conversation Ashley had received from Terrell. Much of his testimony was a repetition of

his testimony during the trial judge’s examination. After the conclusion of Investigator

Perkins’s testimony, Investigator Moore was sworn in and testified to the same statements

Investigator Perkins previously made.

¶10. Clint Langley, the circuit clerk, testified regarding Terrell’s attempt to receive a copy

of the juror list from the clerk’s office the week prior to his trial. Langley testified that

Terrell had called the clerk’s office seeking a copy of the juror information sheet, something

Langley had never been asked. Unsure of how to proceed, Langley contacted the trial judge

for advice. Langley testified that he did not give Terrell the requested information because

he was directed not to by the trial judge. In his closing remarks, the trial judge confirmed

that he indeed ordered the clerk’s office not to provide Terrell with a list of jurors, noting he

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believed such a request was “inappropriate.”

¶11. Abram then testified that he briefly spoke with Terrell upon leaving the courthouse,

but stated the conversation was nothing more than a greeting. Abram did not know to whom

he was speaking. Next, Ashley testified that he, along with Abram, briefly greeted Terrell

in the parking lot outside the courthouse. Ashley testified that he knew Terrell previously,

as he had worked occasionally for Terrell and hoped to again in the future. Ashley also

testified that he had received a phone call from Terrell the morning of February 20, 2014, in

which Terrell said, “[D]on’t be late. [I]’ll talk to [you] this afternoon.” Ashley stated that

he did not say anything to Terrell in response, and he did not really know what the call meant.

However, he did start feeling uncomfortable because he had a prior relationship with Terrell,

and he did not want to be a juror on the case. Ashley stated that he did not feel intimidated,

threatened, or afraid. He testified that he could not be a fair and impartial juror, and he

thought it would not be fair to any of the parties should he be chosen to serve.

¶12. At the conclusion of all testimony, the trial judge issued his ruling. Noting Ashley’s

testimony about the phone call from Terrell and his discomfort about it, the judge relied upon

Kitchens v. State, 293 So. 2d 815 (Miss. 1974), to find that Terrell’s behavior brought the

authority of the trial court and the administration of justice into question. The trial judge also

declined to recuse himself due to personal involvement, denying any such allegation. Near

the conclusion of his comments, the trial judge noted:

The evidence admitted through witness testimony establishes the
defendant’s contact is contemptuous. If any doubt about the matter of whether
the State met its burden of proof [exists], that doubt is removed by the
defendant’s actions of February the 4th, when I the judge, my staff attorney

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Evans, the Circuit Clerk of Marion County, and the Constable Paul Barber of
Marion County went to lunch innocently, February 4th, at a local restaurant.
And after we ate, we left and realized that someone had paid for our lunch.

....

So if there was any doubt about what his intentions were, I think that
doubt is removed by the fact that I have determined since all these issues were
raised that it was Robert Patrick Terrell that paid for four of our lunches on
February 4th.

The judge then found Terrell guilty of contempt of court and ordered him to serve six months

in the county jail, as well as pay a $500 fine. The judge also sua sponte revoked Terrell’s

$80,000 bond on his pending charges and remanded him to the custody of the Jefferson

Davis County Sheriff.

ISSUES

¶13. On appeal, Terrell presents four issues. Terrell alleges that it was error for the trial

judge not to recuse himself due to his close personal involvement with the case. Terrell

further alleges that the lack of adequate notice, per Rule 81, violated his due-process rights.

Terrell also argues that the State did not meet its burden of proof in order to be found guilty.

Finally, Terrell argues that the revocation of bail by the trial judge was an abuse of discretion.

¶14. Because we find reversible error on Terrell’s first issue, we conclude that the

remaining issues presented are either unlikely to occur on retrial or are rendered moot by our

decision. Thus, we decline to address these issues.

STANDARD OF REVIEW

¶15. We apply a de novo standard of review when reviewing procedural issues raising

questions of law. Corr v. State, 97 So. 3d 1211, 1213 (¶5) (Miss. 2012).

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ANALYSIS

¶16. Terrell argues that the trial judge should have recused himself from the contempt

proceedings due to the judge’s personal involvement in investigating and bringing the

charges and due to his bias towards Terrell. When the trial judge becomes substantially

involved in criminal contempt proceedings, it is necessary for the judge to recuse himself in

order to protect a defendant’s due-process rights.

¶17. The Mississippi Supreme Court has stated:

[I]n cases of indirect or constructive criminal contempt, where the trial judge
has substantial personal involvement in the prosecution, the accused
contemnor must be tried by another judge. . . . [E]xamples of substantial
personal involvement in the prosecution warranting recusal include cases
where the trial judge acts as a one-man grand jury; where the trial judge is
instrumental in the initiation of the constructive-contempt proceedings; and
where the trial judge acts as prosecutor and judge.

Graves v. State, 66 So. 3d 148, 154 (¶24) (Miss. 2011) (citations and internal quotation

marks omitted). Where a judge has initiated indirect contempt proceedings, particularly

when a show-cause order has been issued, a judge must remove himself from the

proceedings. Id. at 154 (¶¶23-24); Corr, 97 So. 3d at 1215 (¶10). Similarly, “[w]here the

judge acts as prosecutor and judge, the only checks against potential bias are his own

capacity for objectivity in such matters and painstaking appellate review. Hence the roles

of prosecutor and judge should, as much as is reasonably practicable, be kept separate in

constructive criminal contempt proceedings.” Cook v. State, 483 So. 2d 371, 376 (Miss.

1986).

¶18. In the present case, some factual confusion exists as to who actually initiated the

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contempt proceedings against Terrell. On February 20, 2014, the trial judge conducted voir

dire of some venire members, including Abram, to whom Terrell allegedly spoke. After voir

dire concluded, the judge then questioned Investigator Perkins under oath as to the alleged

interaction between Terrell and the two jury members. At the conclusion of his investigation,

the trial judge stated: “With all of these issues raised the Court has serious concern over the

honesty of all the jurors in the venire and hereby issues a show[-]cause order for a hearing

to be held to determine why the defendant . . . should not be held in contempt of court.”

Terrell’s attorney later asked for clarification as to when the State would “get specific

charges typed up,” to which the trial judge responded, “They are not bringing the charges.

. . . [T]hey are not bringing the charges. The Court is issuing an order.” However, shortly

after this statement, the ADA said:

For clarification of the record, the State did bring this motion for contempt.
It was not on the record. It was in chambers[,] and it was prior to the
commencement of opening court this morning. So I just wanted to clarify that
for the record, that we did bring the motion for contempt.

Prior to the beginning of the contempt proceedings on February 21, 2014, the State filed a

written petition for contempt against Terrell. Then, after the trial judge found Terrell guilty

of indirect contempt, he issued an order reflecting his findings. The order read, in part, “This

cause came before the Court on the 21st day of February, 2014, for a hearing pursuant to the

Court’s order for the defendant to show cause why he should not be held in contempt.”

(Emphasis added).

¶19. In its brief, the State argues that it is responsible for bringing the contempt charges

against Terrell, as evidenced by its motion filed the day of the hearing and by the ADA’s on-

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the-record statement at the hearing of February 20. However, Terrell argues that the judge’s

own statements during the hearing, along with his order proclaiming the hearing to have been

pursuant to the court’s order, together create the “substantial personal involvement” that is

forbidden. While we cannot say with certainty whether the State’s ore tenus motion or the

trial judge’s show-cause order are responsible for the contempt proceedings, at the very least,

the situation is muddled enough to call the trial judge’s involvement into question. Even

assuming, arguendo, that the trial judge did not initiate the proceedings, his investigation into

the contemptuous allegations, his interrogation of Investigator Perkins, and his personal

knowledge and involvement gave him substantial personal involvement in the prosecution.

¶20. Additionally, the trial judge had prior personal knowledge of Terrell that he

impermissibly used in making his determination of guilt. Under Canon 3E(1) of the Code

of Judicial Conduct,

Judges should disqualify themselves in proceedings in which their impartiality
might be questioned by a reasonable person knowing all the circumstances or
for other grounds provided in the Code of Judicial Conduct . . . , including but
not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding[.]

The comment to the rule advises a judge to “disclose on the record information that the judge

believes the parties or their lawyers might consider relevant to the question of

disqualification, even if the judge believes there is no real basis for disqualification.” The

standard for determining whether a judge should have disqualified himself is an objective

one: would a reasonable person, knowing all the circumstances, have doubts about his

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impartiality? In re Conservatorship of Bardwell, 849 So. 2d 1240, 1247 (¶20) (Miss. 2003)

(citing Bryan v. Holzer, 589 So. 2d 648, 654 (Miss. 1991)). A presumption exists that a

sitting judge is qualified and unbiased. In order to overcome that presumption, there must

be “a reasonable doubt” about the judge’s bias. Bardwell, 849 So. 2d at 1247 (¶20) (quoting

Bryan, 589 So. 2d at 654).

¶21. When the trial judge issued his verdict, he stated:

If any doubt about the matter of whether the State met its burden of
proof [exists], that doubt is removed by the defendant’s actions of February the
4th, when I the judge, my staff attorney Evans, the Circuit Clerk of Marion
County, and the Constable Paul Barber of Marion County went to lunch
innocently, February 4th, at a local restaurant. And after we ate, we left and
realized that someone had paid for our lunch.

When we inquired who it was, nobody seemed to know. And when I
continued to pursue and demand who bought my lunch, the remark was
made[,] [“]Pat.[”] I didn’t know who Pat was at the time . . . . I never knew
Robert Patrick Terrell as Pat. I just knew him as Defendant Terrell.

So if there was any doubt about what his intentions were, I think that
doubt is removed by the fact that I have determined since all these issues were
raised that it was Robert Patrick Terrell that paid for four of our lunches on
February 4th.

This prior knowledge of Terrell, which normally would have created a bias against him,

should have been disclosed on the record to the parties prior to the commencement of the

contempt proceedings. The mere fact that the trial judge used those outside, prior events to

support his belief that Terrell had ill intentions is proof enough that he should have disclosed

this information. Additionally, the trial judge had personal knowledge that Terrell had

attempted to get a list of potential jurors; he even made the decision to instruct the clerk not

to furnish the list to Terrell. The prosecution used this attempt as evidence of Terrell’s evil

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intent during the contempt proceedings. His involvement with deciding not to give Terrell

the jury list gave him personal knowledge of disputed facts regarding Terrell’s intent. These

two out-of-court incidents created a preconceived determination, perhaps not of contempt,

but certainly of Terrell’s ill intent. Furthermore, upon finding Terrell guilty of contempt, the

trial judge revoked his bail sua sponte, without any prompting or request from the State.

Regrettably, we must conclude that a reasonable person, knowing all of these circumstances,

would clearly have a reasonable doubt about the trial judge’s ability to be impartial.

¶22. These doubts as to impartiality, coupled with the trial judge’s substantial personal

involvement with bringing the contempt proceedings, require a reversal of the trial judge’s

verdict of guilt. We remand for a new trial.

¶23. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS
COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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