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Terrell v. State

Court of Appeals of Mississippi

June 2, 2015

ROBERT PATRICK TERRELL A/K/A ROBERT P. TERRELL A/K/A PATRICK TERRELL, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/21/2014. TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO. 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.

FOR APPELLANT: J.M. RITCHEY.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA H. TEDDER.

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

OPINION

Page 550

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

ROBERTS, J.

[¶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

Page 551

reported the incident to the district attorney's office.

[¶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 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.

Page 552

When Terrell's attorney inquired as to his ability to sufficiently subpoena witnesses for the contempt hearing, and 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 ...


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