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Terry v. State

August 06, 1998

KAY LYNN TERRY, WILLARD L. MCILWAIN, JR. AND TRACI RENEE EVANS, A/K/A TRACY EVANS
v.
STATE OF MISSISSIPPI KAY LYNN TERRY, WILLARD L. MCILWAIN, JR. AND TRACI R. EVANS
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Roberts, Justice

Terry, McIlwain, Jr., & Evans v. State of Mississippi

94-KA-00528-SCT, __So. 2d __

DATE OF JUDGMENT: 06/01/94

TRIAL JUDGE: HON. EUGENE M. BOGEN

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

DISPOSITION REVERSED AND RENDERED - 8/6/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE CASE

¶1. Kay Terry, Willard L. McIlwain, Jr., and Traci Renee Evans, a/k/a Tracy Evans were found guilty of contempt in the Circuit Court of Washington County. Terry and Evans were sentenced to serve 90-day terms in county jail, and McIlwain was sentenced to a term of 3 days in jail. Each defendant was ordered to pay a fine of $1,000. All three defendants have perfected an appeal to this Court. They assign as error the following issues:

ASSIGNMENTS OF ERROR

of Kay Terry and Willard L. McIlwain, Jr. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING KAY TERRY IN CONTEMPT WHEN THERE WAS NO EVIDENCE OF ANY ACT ON HER PART WHICH LED TO THE SUBJECT ARTICLE BEING PUBLISHED.

II. THE TRIAL COURT WAS IN ERROR IN FINDING KAY TERRY'S ATTORNEY, WILLARD L. McILWAIN, JR., IN CONTEMPT WHEN THERE WAS NO ACT ON HIS PART WHICH LED TO THE SUBJECT ARTICLE BEING PUBLISHED AND HE WAS UNDER NO OBLIGATION TO STOP THE ARTICLE BEING PRINTED BY A THIRD-PARTY OVER WHOM HE HAD NO CONTROL.

III. THE TRIAL COURT WAS IN ERROR IN FAILING TO ALLOW THE "RULE" TO BE INVOKED.

IV. THE TRIAL COURT WAS IN ERROR IN HEARING THIS MATTER ITSELF IN LIGHT OF THE FACT THAT IT SHOULD HAVE BEEN REFERRED TO ANOTHER JUDGE.

ASSIGNMENTS OF ERROR

of Traci Evans I. THE TRIAL COURT ERRED IN HEARING THIS MATTER ITSELF, IN LIGHT OF THE FACT THAT IT WAS A CONSTRUCTIVE CRIMINAL CONTEMPT CHARGE AND HEARING, AND SHOULD HAVE BEEN REFERRED TO ANOTHER JUDGE.

II. THE TRIAL COURT WAS IN ERROR IN A CONSTRUCTIVE CRIMINAL CONTEMPT HEARING BY VIOLATING APPELLANT'S DUE PROCESS RIGHTS IN DENYING APPELLANT'S RIGHT TO COUNSEL.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR DUE TO THE STATE'S FAILURE TO SUFFICIENTLY PROVE THE ELEMENTS OF CONSTRUCTIVE CRIMINAL CONTEMPT AND THAT THE APPELLANT WAS GUILTY BEYOND A REASONABLE DOUBT.

¶2. This Court holds that the contempt proceedings against Terry, McIlwain, and Evans should not have been heard by Judge Bogen, as he initiated the constructive contempt charges against the three. His failure to recuse is reversible error. The failure of Judge Bogen to "invoke the rule" was not reversible error because the appellants did not show how they were prejudiced by his failing to do so. Evans was erroneously charged because she did fall under the authority of URCCC 9.01. Finally, although moot, Evans was denied her right to counsel because Judge Bogen proceeded without informing her of her right to seek the advice of an attorney and the ramifications if she did not seek one. Therefore, this case is reversed and rendered.

STATEMENT OF FACTS

¶3. This case came before the court on Petitions for Contempt Citation, some of which were brought by the State and some of which were brought by the trial court Circuit Judge Eugene M. Bogen. The contempt charges arose as a result of an article sent to the Delta Democrat Times , which was published on May 22, May 23, and May 24, 1994. The article was purchased by Traci Evans, a friend of Kay Terry, who had been following the criminal proceedings against Terry subsequent to her indictment for embezzlement from Friedman Iron and Metal Company. The article ran several days prior to Terry's second trial set to begin on May 25, 1994.

¶4. Terry's first trial regarding the embezzlement ended in a mistrial in January of 1994. On January 7, 1994, the Circuit Court sent out a notice that the embezzlement charge had been re-set for trial on February 17, 1994 at 9:00 a.m. Shortly thereafter, Evans wrote a letter to the editor of the paper, expressing her objection to the retrial of Terry because it was a waste of taxpayers' money. This letter was printed in the Delta Democrat Times on January 21, 1994.

¶5. On February 8, 1994, Evans submitted to the Delta Democrat Times a version of the article which is the subject of the contempt. The article contained a portion of a letter written by the Defendant's attorney to the District Attorney and a copy of a polygraph examiner's report. The article was submitted, according to Terry, without Terry's knowledge, other than Evans saying that she was going to write some letters to the editor. Evans claims that her intent was to draw attention to the proceedings that were to take place and to hopefully accumulate an audience to view the same. Evans states that she did not intend to sway anyone's mind or influence the proceedings. The ad was not published in February because of the continuance of court as a result of the February ice storm.

¶6. Evans stated that she had never met Terry's attorney, but had seen him in the courtroom in Terry's first trial. She further stated that she had never communicated with him prior to the time she took the article to the paper. She testified that the paper notified her that she would have to inform Terry that she was submitting an article. Evans said she called Terry and said, "I have submitted an article to the paper with your name in it. Do you have any objections?" To which Terry replied, "No." Evans stated she would come by later and explain to Terry what the article was about, but she did not do so. The article was a compilation of the results of the polygraph test Terry had taken and a letter from Terry's attorney written to the prosecutor in the embezzlement case. Evans stated that she took the letter without Terry's knowledge and had received a copy of the polygraph examination report from Terry. Evans did not talk to Terry's attorney prior to her submission of the article, according to her testimony. Evans left town Friday afternoon, before the article was published on Sunday at approximately 2:00 p.m., and did not return home until 9:00 p.m. Sunday evening.

ΒΆ7. On Monday morning, May 23, 1994, Evans was contacted by Terry's attorney, Willard L. McIlwain, Jr. Evans confirmed that she was the person who placed the ad in the paper, and further confirmed that Terry did not have anything to do with the ad having been published. Later that Monday she received a letter from McIlwain requesting that she not write any more letters to the editor or publish any more articles in the paper. That letter was introduced into evidence. Evans said that the letter written to her from McIlwain did not say anything about not appearing on television, so she ...


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