Opinion
CR-18-0049
04-12-2019
H. Chase DEARMAN v. STATE of Alabama
William K. Bradford, Birmingham, for appellant. Steve Marshall, atty, gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
William K. Bradford, Birmingham, for appellant.
Steve Marshall, atty, gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
KELLUM, Judge.
H. Chase Dearman appeals the circuit court's order finding him in direct contempt, as defined by Rule 33.1(b)(1), Ala. R. Crim. P.
The record indicates that Dearman represented a defendant at a probation-revocation hearing over which Judge James T. Patterson presided. At the probation-revocation hearing, the State called the defendant's probation officer to testify regarding the allegation that the defendant violated the terms and conditions of his probation by committing a new criminal offense, namely, possession of a controlled substance. During the probation officer's testimony, the following occurred:
"[A]: Prior to—once I got out of the vehicle, I made contact with [the defendant] who was walking down the street. I asked where he was going. He kind of told me.
"I said, let's go to your home. He took me back to this address, the—Sullivan Avenue.
"Before entering the home, I confirmed with him that that was his home.
"....
"... During the search, I ended up locating in the kitchen drawer, what was later determined to be a controlled substance.
"Q. Specifically, what was it?
"A. AK-47 Herbal Incense.
"Q. Would that be on the streets known as—
"MR. DEARMAN: I object. This officer has no training in narcotics whatsoever. This is not a regular drug and regularly identifiable.
"And in addition to that, the District Court found no probable cause on this case, the facts of which the Court is now hearing.
"THE COURT: All right.
"MR. DEARMAN: We've had a preliminary hearing.
"THE COURT: ‘Alabama Rules of Evidence, Article 11, Miscellaneous Rules, Rule 1101, rules inapplicable. These rules, other than those with respect to privileges, do not apply in the following situations: Preliminary questions of fact, grand jury, miscellaneous proceedings including proceedings for extradition or rendition, preliminary hearing in criminal cases, sentencings, granting and revoking probation.’
"MR. DEARMAN: Judge, in District Court—
"THE COURT: No. They don't apply.
"MR. DEARMAN: May I finish my objection?
"THE COURT: No, you may not. There's no objection here. They don't apply. The rules of evidence don't apply here.
"MR. DEARMAN: I have an objection for the record.
"THE COURT: No, sir. The rules don't apply. The rules don't apply, Mr. Dearman.
"MR. DEARMAN: The Judge is talking over me.
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection—
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection is—
"THE COURT: The rules don't apply.
"MR. DEARMAN: My objection is—
"THE COURT: The rules don't apply.
"MR. DEARMAN: Okay. Let me know when I can speak.
"THE COURT: You're not going to speak. If you're going to make an objection, you're not going to speak.
"MR. DEARMAN: May the record reflect that I'm not allowed to make—
"THE COURT: Get him out of here. Take the lawyer out. Get out.
"MR. DEARMAN: May the record reflect—
"THE COURT: Get out.
"MR. DEARMAN: —that I am being ordered out of the courtroom—
"THE COURT: Get out.
"MR. DEARMAN: —and the Judge has lost his temper—
"THE COURT: Get out.
"MR. DEARMAN: —again.
"THE COURT: Get out.
"Take him back.
"(Proceedings concluded.)"
(R. 6-8.)
At the conclusion of the hearing, the circuit court entered an order finding Dearman in direct contempt. In its order, the circuit court stated:
"Based on his conduct before this court this date at hearing on the probation revocation of his client, ... and specifically his conduct after this court advised Mr. Dearman that per Ala. R. Evid. 1101(b)(3), the rules of evidence do not apply to granting or revoking probation, and because of this contemptuous conduct toward this court immediately after this Rules of Evidence was pointed out to him, this court finds attorney Chase Dearman in direct contempt of court per Rule 33.1(b)(1).
"This matter was immediately disposed of by undersigned ordering Mr. Dearman to leave Courtroom 6300, and this court will take no further action in this regard—this time. However, please be advised that further outbursts of this nature may lead to other sanctions allowed per Ala. R. Crim. P. Rule 33."
(C. 24.)
Dearman subsequently filed a motion to vacate the circuit court's contempt order and demanded a hearing. In his motion, Dearman alleged that he was not given notice of the specific contemptuous conduct and a reasonable opportunity to present evidence or mitigating circumstances as required under Rule 33.2(b), Ala. R. Crim. P. Dearman requested that the matter be set for a hearing on the issue of the alleged contempt and further requested that Judge Patterson refer the matter to another judge in the circuit "inasmuch as the alleged conduct does not pertain to the merits of the underlying case as much as it related to an interaction between [Dearman] and the Court." (C. 27.) The circuit court denied Dearman's motion, and this appeal followed.
I.
Dearman contends that the circuit court erred when it failed to comply with the requirements of Rule 33.2, Ala. R. Crim. P., and summarily ordered Dearman out of the courtroom without first apprising Dearman of the basis for the finding of contempt and without giving Dearman "any opportunity to present evidence or argument of excusing or mitigating circumstances" despite Dearman's specific request for a hearing. (Dearman's brief, p. 15.)
Regarding the summary disposition of a finding of direct contempt, Rule 33.2 provides:
"(a) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of such finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting contempt. The order shall be signed by the judge and entered of record.
"(b) Mitigation. The court shall apprise the person of the specific conduct on which the finding is based and give that person a reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances. No decision concerning the punishment to be imposed shall be made during the course of the proceeding at which the contempt occurs, unless prompt punishment is imperative to achieve immediate
vindication of the court's dignity and authority.
"(c) Sentence. Sentence shall be pronounced in open court, in the presence of the contemnor, unless presence has been waived under Rule 9.1(b), not later than the latter of seven (7) days after completion of all proceedings under this rule, or the completion of the proceeding during which the contemptuous conduct occurred, unless pronounced under section (b)."
(Emphasis added.)
In this case, the circuit court entered a written order at the conclusion of the hearing in which it found Dearman in direct contempt and stated the basis for its finding. The record indicates, however, that the circuit court did not immediately apprise Dearman that he was in contempt and the basis for its finding of contempt before the court ordered Dearman to leave the courtroom. Likewise, the circuit court did not give Dearman a "reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances" for the direct contempt as required by Rule 33.2(b).
The State cites this Court's decision in Holland v. State, 800 So.2d 602, 605 (Ala. Crim. App. 2000), in which it held that " Rule 33.2(b) does not require the court to inquire as to excusing or mitigating circumstances." In Holland, however, the defendant who was found in direct contempt was given a "reasonable opportunity" to present evidence or argument when the trial judge in that case conducted a separate contempt hearing. 800 So.2d at 605. In this case, the circuit court conducted no such hearing. Instead, Dearman was removed from the courtroom, and the circuit court entered a direct-contempt order.
Rule 33.2(b) mandates that a person found in contempt be allowed a reasonable opportunity to present evidence or argument in an effort to excuse or to mitigate the contemptuous behavior. Dearman was not afforded an opportunity to do so. Therefore, the circuit court erred when it failed to comply with Rule 33.2(b), and Dearman is entitled to relief on this issue.
II.
Because we are remanding this case for further proceedings, we also address a second contention raised by Dearman on appeal, namely, whether this Court should order Judge Patterson to recuse himself from the contempt proceedings.
Rule 33.5, Ala. R. Crim. P., provides:
"If the alleged contumacious conduct involves gross disrespect or a personal attack upon the character of the judge, or if the judge's conduct is so integrated with the alleged contempt that the judge contributed to or was otherwise involved in it, unless the conduct constitutes a direct contempt and prompt punishment by summary procedure is imperative under Rule 33.2(b), the citation shall be referred to another judge who shall hold a hearing to determine whether the contemnor committed the contempt charged, and, if so, to impose punishment."
The committee comments to Rule 33.5 explain the legal basis for creating the rule:
"This rule is required by Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). In that case, a defendant representing himself in state court repeatedly engaged in disruptive conduct and made insulting and slanderous remarks to the judge. When the defendant was brought in for sentencing after a jury verdict of guilty on the criminal charges, the trial judge pronounced him guilty of eleven criminal contempts arising from his conduct during
the trial and sentenced him to a total of eleven to twenty-two years imprisonment thereon. The United States Supreme Court held that the due process clause of the Fourteenth Amendment requires that a defendant in criminal contempt proceedings should be given a trial before a judge other than the one reviled by the contemnor."
In the instant case, the contemptuous conduct at issue involved Dearman's failure to follow a direct order from the circuit court concerning an objection Dearman wanted to make on the record. Dearman disobeyed the circuit court's direct order that Dearman could not finish his objection and proceeded to argue with the circuit court. Based on this conduct, Dearman was found in contempt. Dearman's behavior did not involve "gross disrespect or a personal attack upon the character of the judge," Rule 33.5, Ala. R. Crim. P., but instead challenged the judicial authority of Judge Patterson. Therefore, Rule 33.5 does not encompass Dearman's contemptuous behavior. Further, the record in this case indicates that the conduct at issue necessitated prompt punishment by the trial judge, i.e., removal from the courtroom. See Rule 33.5. Therefore, Dearman's argument is without merit.
Based on the foregoing, we remand this case for further proceedings consistent with this opinion. The circuit court shall take all necessary action to ensure due return to this Court at the earliest possible time, no later than 28 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.
Because we are remanding this case for the circuit court to comply with Rule 33.2(b), we pretermit discussion of Dearman's remaining issue on appeal, namely, whether the circuit court erred in finding Dearman in direct contempt.
Note from the reporter of decisions: On July 12, 2019, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 2, 2019, that court denied rehearing, without opinion.
--------
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.