         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 15, 2001 Session

             JESSE C. MINOR by and through counsel, Hal Hardin v.
                         STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                      No. 97-C-2096(A)    Cheryl Blackburn, Judge



                  No. M2001-00545-CCA-R10-PC - Filed December 5, 2001


We accepted this extraordinary appeal, see Tenn. R. App. P. 10, to review certain pre-hearing actions
of the Davidson County Criminal Court in this post-conviction case. Our grant of review extends
to these issues: (1) whether a “next friend” may file a post-conviction petition on behalf of an
incompetent prisoner; (2) if so, may the post-conviction court, sua sponte, order a mental evaluation
of the prisoner or conduct other inquiries into the matter to determine whether the “next friend”
petition was properly filed on the prisoner’s behalf; and (3) whether the court below properly denied
the petitioner’s motion for recusal. We conclude that we improvidently granted extraordinary review
in part, but we otherwise affirm the rulings of the lower court and remand for further proceedings.

       Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed and Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
JOE G. RILEY, JJ., joined.

J. G. Mitchell, III, Murfreesboro, Tennessee, and Hugh C. Howser, Jr., Nashville, Tennessee, for the
Appellant, Jesse C. Minor.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION


                                  Facts and Procedural History

                An understanding of the procedural history of this case is essential to comprehending
the outcome of this appeal. Equally critical is an understanding of the various representative
capacities of the involved parties and of counsel.
                 In 1997, the petitioner was charged with three counts of rape of a child, two counts
of aggravated sexual battery, and one count of aggravated assault. See State v. Jesse Cleo Minor,
No. M1998-00424-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App, Nashville, Dec. 15, 1999).
Pursuant to settlement with the state, Minor entered a best-interest guilty plea on May 21, 1998 to
one count of attempted rape of a child and received an eight-year, Range I sentence. The remaining
charges were dismissed. At a sentencing hearing, the trial court imposed incarceration as the manner
of service of the sentence. Id. On direct appeal, we affirmed the trial court’s denial of probation.
Id., slip op. at 4-8.

                 The mother of the minor victim in the criminal case filed a civil lawsuit in the
Davidson County Circuit Court against the petitioner, his wife, and his co-defendant, Stephanie
Patton, in the criminal case. The lawsuit alleged sexual assault of the daughter and sought the award
of money damages. Alana Dowell v. Jesse C. Minor, No. M2000-00378-COA-R9-CV, slip op. at
2 (Tenn. Ct. App., Nashville, Apr. 26, 2000).

                 A review of the record in this case, which contains discovery material from the civil
case that is exhibited to the post-conviction petition, along with the court of appeals’ opinion in the
civil case, reflects the involvement of several attorneys in the civil case. Although the information
is not entirely consistent, the following appearances of counsel are reflected at various stages of
those proceedings. Attorneys Hal D. Hardin and Hugh C. Howser, Jr. have appeared for Mr. Minor
in the civil case. Attorneys Howser and Kenneth Mark Bryant have appeared for Mrs. Minor, the
petitioner’s wife, and Leann Morrison, the petitioner’s daughter and guardian ad litem in the civil
case. In one proceeding, Attorneys Howser and Hardin are reflected as appearing for “the
defendants,” which technically would include the co-defendant from the criminal case, Ms. Patton,
as well as Mr. and Mrs. Minor. It further appears that Attorneys Howser and Bryant practice in the
same law firm.

                 On February 2, 2000, the petitioner, by and through his “next friend,” Leann
Morrison, filed a petition for post-conviction relief. This pleading was filed by attorney J.G.
Mitchell, III as counsel of record. The post-conviction court dismissed this petition as prematurely
filed.1 Apparently, no appeal of that dismissal was taken.

                On April 20, 2000, the petitioner, through Ms. Morrison as “next friend,” again filed
a petition for post-conviction relief. Attorney Mitchell filed this action as counsel of record. The
state moved to dismiss the petition, arguing that the petition was improperly filed through a “next
friend,” that the petitioner was at that time incompetent to maintain the action, and that the statute
of limitations would be tolled during the petitioner’s incompetency. Although a written order of that
dismissal does not appear in the record, the court minutes reflect that the state’s motion to dismiss
was granted on June 30, 2000. Other information in the record indicates that the basis for that
dismissal was the petitioner’s “next friend” status, which the trial court ruled was not a permissible


         1
          Curio usly, the court also found that the petition was not timely filed. It appears, however, that the petition was
prem ature, no t untimely.

                                                            -2-
manner in which to bring a post-conviction action. As with the previous filing, it appears that no
appeal of the dismissal was taken.

                On July 13, 2000, the petitioner filed a third petition for post-conviction relief styled
“Jesse C. Minor, individually, and by and through counsel, Hal D. Hardin v. State of Tennessee.”
Attorney Mitchell filed this action as counsel of record. This pleading alleges that the petitioner was
assisted in preparing it by Attorneys Hardin, Howser, Mitchell, Bryant, and Paige Abernathy Hill.
Attorneys Hardin, Howser, Mitchell, and Hill have at some point signed post-conviction pleadings
found in the appellate record, and all four have listed themselves as counsel of record on the
petitioner’s appellate brief. Attorneys Howser, Bryant, and Hill all practice in the same firm,
members of which have represented the petitioner, his wife, and his daughter in the civil action.

                This third petition alleges that the petitioner is in poor health and suffers from
irreversible dementia that seriously affects his cognitive abilities. The petitioner attacks his
attempted rape of a child conviction based upon four allegations: (1) he was incompetent and unable
to understand the prior proceedings and therefore incapable of entering a voluntary guilty plea; (2)
the state failed to disclose material exculpatory evidence; (3) false and/or materially misleading
statements were offered to the trial court by the victim and her mother; and (4) trial counsel did not
provide effective assistance. Based upon statements in the record, at least one of his attorneys
believes that a post-conviction petition successful in overturning the guilty plea that underlies the
petitioner’s conviction will positively affect the civil litigation. See Tenn. R. Evid. 803(22)
(judgment of previous conviction exception to hearsay rule). But cf. Tenn. R. Evid. 410(2) (nolo
contendere plea is inadmissible against party who made it); Helen Bell v. Tennessee Farmers Mut.
Ins. Co., No. 01A01-9802-CV-00079 (Tenn. Ct. App., Nashville, Jan. 22, 1999) (although court
declined to rule on admissibility of best-interest plea of guilty to facilitation of arson in civil case
seeking recovery for loss under homeowner’s policy, it held that plea did not, as a matter of law,
preclude insured’s recovery on policy that excluded losses occasioned by action by or at the direction
of the insured).2 In any event, should the petitioner ultimately be granted the relief requested in his
post-conviction petition, he would face criminal charges more numerous and a potential effective
sentence of much greater length than the one conviction and sentence he presently has.

               A hearing on the merits of the post-conviction case was scheduled for October 11,
2000. At the beginning of that hearing, the trial court expressed concerns that the petitioner’s
attorneys in the post-conviction case had conflicting interests due to their representation of the
petitioner and various family members in the civil proceeding. Attorneys Hardin and Howser
acknowledged involvement in the civil case. Attorney Mitchell admitted that, although he did not
represent a party in the civil case, he had attended and observed a civil deposition of the victim in
order to observe her demeanor because he and Attorney Hardin thought it was a “good idea.” It is
apparent from the record that the lower court was concerned that the petitioner’s best interests in the


         2
            It is unnecessary for us to determine whether counsel’s belief regard ing the best-interest plea’s effect on the
civil litigation is well founded. Accordingly, nothing in this opinion should be construed as addressing the actual
admissibility of the petitioner’s best-interest guilty plea in the collateral civil litigation.

                                                            -3-
civil case and criminal case were divergent. Specifically, the relief sought in the post-conviction
case, setting aside of the conviction and judgment, although possibly beneficial to the petitioner’s
interests in the civil case, might ultimately result in the imposition of multiple convictions and a
much greater effective sentence in the criminal case. Because of these divergent interests, the lower
court perceived that the petitioner’s counsel, if the same in both proceedings, would have conflicting
interests in the two actions. Based upon this concern, the lower court expressed its intent to appoint
an attorney ad litem and order an independent evaluation of the petitioner to determine his
competency to choose counsel and strategy in the post-conviction case.3 The record reflects that the
court entered a written order for the petitioner to be evaluated. Apparently, the court also entered
an order appointing Attorney Jeffrey Loy as attorney ad litem to assist with the mental evaluation,
although this order is not in the appellate record certified to us by the clerk of the lower court.

                 On October 21, 2000, the petitioner filed a motion to reconsider the orders appointing
the attorney ad litem and requiring the mental evaluation. Curiously, the caption of this pleading
styled the case “Jesse C. Minor, b/n/f Leann Morrison and by and through counsel, Hal Hardin v.
State of Tennessee.” (Emphasis added.) This was the first attempt to inject Ms. Morrison as “next
friend” into the third petition for post-conviction relief.4 A memorandum accompanying that motion
complained of the trial court’s “previous ruling”5 that Ms. Morrison could not proceed as “next
friend.” Following a hearing, the court denied this motion to reconsider by written order on
December 4, 2000.

                On or about December 7, 2000, petitioner’s counsel sent a letter to the trial judge
requesting that she recuse herself because she had served as an assistant district attorney at the time
of the offense to which the petitioner eventually pleaded guilty, and there was an appearance of
impropriety and a question of perceived bias.6 The lower court entered an order on December 12,
2000 denying the request for recusal and amended that order on December 14, 2000. As a factual
predicate for its denial, the judge found that she had no role in her former employment in the
investigation, indictment and prosecution of the petitioner’s underlying case. Further, she found that
the indictment was not returned until over one year after her appointment to the bench.



         3
           The petitioner’s competence to choose counsel would necessarily entail his ability to waive the conflict of
interests that the lower court perceived.

         4
          From this point in the post-conviction litigation forward, the petitioner’s filings have utilized the caption he
adopted in this motion.

         5
           The motion does not specify the date of the order regarding the “next friend” issue. Review of a memorandum
filed by the petitioner with the motion indicates the order of which the petitioner complains is that of June 30, 2000, when
the court dismissed the second petition for post-conviction relief. As we have noted, the dismissal was not appealed and
apparently became a final order.

         6
           Although this letter appears to have bee n filed with the clerk of the lower co urt, it has not been included in the
app ellate record. The information we have a bout this letter comes fro m the lo wer co urt’s order denying the relief the
letter requested.

                                                             -4-
                The petitioner filed a motion in the lower court for certification of an interlocutory
appeal. See Tenn. R. App. P. 9 (interlocutory review by permission of the trial and appellate courts).
Although this motion is not preserved in the appellate record in its entirety,7 evidently the petitioner
sought review of the trial court’s rulings that Ms. Morrison could not proceed as the petitioner’s
“next friend,” appointing the attorney ad litem, and ordering the mental evaluation.

                The petitioner then followed up with a motion for recusal on January 10, 2001. This
motion raised three bases for recusal: (1) the appearance of partiality due to the trial judge’s former
employment in the district attorney’s office; (2) the appearance of bias because the trial judge met
with one of the petitioner’s potential witnesses in chambers without the parties or counsel being
present; and (3) the trial judge conducted an investigation into the court records of the collateral civil
proceedings.

                On March 7, 2001, the trial court denied both the petition for interlocutory appeal and
the motion for recusal. On that same date, the petitioner filed an application for extraordinary appeal
with this court. See Tenn. R. App. P. 10. We granted the application to review three issues:

        (1)         Whether a “next friend” may file a petition for post-conviction relief on
                    behalf of an incompetent prisoner;
        (2)         If so, may a trial court, sua sponte, order a mental evaluation of the prisoner
                    or conduct other inquiries into the matter to determine whether the “next
                    friend” petition was properly filed on the prisoner’s behalf; and
        (3)         Whether the trial judge in this case properly denied the petitioner’s motion
                    to recuse.

                The parties have submitted their briefs and oral arguments, and the case is now before
us for disposition.

                                                            I

                The first issue upon which we accepted review of this case is whether a “next friend”
may file a post-conviction petition on behalf of an incompetent prisoner. This issue pertains to the
petitioner’s complaint that the trial court prevented his daughter, Ms. Morrison, from maintaining
the action as his “next friend.” Upon consideration, we conclude that we improvidently granted
extraordinary review of this question, as it is not justiciable in this case.

                The first two post-conviction actions were brought by Leann Morrison as “next
friend” of the petitioner. Both of those petitions were dismissed, and in neither case does a notice
of appeal appear to have been filed. See Tenn. R. App. P. 4 (notice of appeal must be filed within
30 days after entry of judgment).



        7
            Page twelve of this motion is absent from the appellate record.

                                                           -5-
                The third and present action was filed, “Jesse C. Minor, individually, and by and
through counsel, Hal D. Hardin v. State of Tennessee.” The allegations of the petition include
claims that the petitioner himself is incompetent to bring the action on his own behalf and that his
attorney, Mr. Hardin, is filing the action on his behalf. The allegations make it clear that Mr. Hardin
is acting in a representative capacity. We believe the allegations are such that Mr. Hardin is
essentially a de facto “next friend” although not designated as such. Significantly, this action was
not filed by Ms. Morrison as “next friend” of the petitioner.8

               In the present action, there has been no ruling that the petitioner may not proceed
through a “next friend,” whether that individual is Mr. Hardin or Ms. Morrison. Indeed, the present
action has been maintained from its inception to the present time with Mr. Hardin acting as the
petitioner’s de facto “next friend,” and the judge of the lower court has allowed the petition to
proceed in that form notwithstanding her ruling in the prior action that the petitioner could not
proceed through a “next friend.” Without a ruling that the petition in the present case may not be
maintained through a “next friend,” the question whether a “next friend” may maintain a post-
conviction petition is not justiciable in this proceeding.9

                Although this litigation is related to, and even resultant from, the lower court’s ruling
in the prior action that a post-conviction petition may not be maintained by a “next friend,” review
of the adverse ruling of the lower court should have been pursued via direct appeal of the prior
action. See Tenn. R. App. P. 3(b) (appeal as of right from final judgment in post-conviction
proceeding).

                   We must conclude that we improvidently granted review of this question.

                                                             II

                The second issue is whether a post-conviction court may, sua sponte, order a mental
evaluation of the prisoner or conduct other inquiries into the matter to determine whether the “next
friend” petition was properly filed on the prisoner’s behalf. We agreed to review this issue only if
we first determined that a “next friend” may maintain a post-conviction petition on behalf of an
incompetent prisoner. Because we have held that there is no justiciable question of the propriety of
a “next friend” petition before us, the second issue, as stated, is likewise not justiciable. We believe,


         8
          The only effort to include M s. Morrison as “next friend” ap pears to be counsel’s unilateral ado ption of the style
“Jesse C. M inor, b/n/f Leann M orriso n and by and through counsel, Hal Hardin v. State of Tennessee” after the lower
court appointed the attorney ad litem and ordered the mental evaluation. We are aware of no basis upon which a person
may unilaterally inject herself into pending litigation without permission of the court, and the petitioner has made no
attempt to justify this anomalous action.

         9
            At this juncture, we are compelled to comment that when the petitioner applied to this court for extraordinary
review, he obfuscated the true nature of the proceeding by employing in the application a unilaterally adopted caption
indicating Ms. Morrison was proceeding as “next friend” of her father, Mr. Minor. We have now reviewed the full
app ellate rec ord transmitted to us, and it is ap parent that there is no “next friend” con troversy in the present case.

                                                             -6-
however, that examination of a closely related question is appropriate. That question is whether the
lower court properly entered a sua sponte order for a mental evaluation of the allegedly incompetent
prisoner to assist the court in determining (1) whether the petitioner is competent to make decisions
regarding pursuit of the case, and (2) if not, whether the petitioner’s best interests are being served
by his present attorneys.

                The post-conviction petition, brought “by and through counsel” on the petitioner’s
behalf by one of his several attorneys, alleges that the petitioner “lack[s] the requisite mental capacity
and competence” to bring the action on his own. Because of the involvement of several of the
petitioner’s post-conviction attorneys in varying capacities in the civil case arising out of the same
underlying facts, the lower court became concerned about possible conflicting interests of the
petitioner’s goals in the post-conviction and civil cases as well as those of counsel in representing
the petitioner and/or his family members in both actions. For this reason, the lower court ordered
a mental evaluation of the petitioner at Middle Tennessee Mental Health Institute to determine his
“present mental competency to assist counsel and participate meaningfully in his pending post-
conviction petition . . . .” Although it does not appear in the appellate record, we discern that the
lower court entered a companion order appointing Attorney Loy to assist with the mental
examination in the role of attorney ad litem.10 In the absence of the pertinent order from the
appellate record, we are unable to know what the lower court envisioned as the precise contours of
the attorney ad litem’s role. From statements made by the court at a hearing transcribed and placed
in the appellate record, however, it appears that the court anticipated Attorney Loy’s role as a dual
one of court-appointed advocate and interim guardian for the petitioner during the mental
examination and hearing on competency.




         10
            An unauthenticated copy of what purports to be this order was filed as an exhibit with the petitioner’s
application for Rule 10 review. W hile this do cument was properly submitted in support of the Rule 10 application, an
authenticated copy of it was, for some reason, excluded from the appellate record that was certified to us by the lower
court clerk. See Tenn. R. A pp. P . 24(a ). The parties were not po werless to place this document before us. The Rules
of App ellate Proce dure allow a party to add any item to the record which is “necessary to convey a fair, accurate and
complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.” Tenn.
R. App. P. 24(g). Neither party chose to seek supplementation of the record. Although the petitioner included a
document purp orting to be suc h an order in the appendix to his brief, that document is not evidence that we may consider.
See, e.g., Hartsell v. Fort Sand ers Regional M ed. Ctr., 905 S.W .2d 9 44, 9 49 (Tenn. Ct. A pp. 1 995 ); William Sturm v.
Evelyn Hu nnicutt, No. 01A01-9201-CH-00003 (Te nn. Ct. A pp., N ashville, O ct. 7, 19 92); Inman v. Inman, 840 S.W.2d
927, 930 (Te nn. Ct. A pp. 1 992 ). This court is bound by the record as certified on appeal from the lower court clerk and
judicially knows only that which appears of record. Neither the uncertified documents accompanying the Rule 10
app lication nor the d ocuments in the appendix to the petitioner’s brief qualify as such.

         W ith respe ct to the appe ndix to the petitioner’s brief, it bears noting that the contents of an appendix are limited
to documents that ap pear in the rec ord. See generally Tenn. R. App. P. 28. Thus, documents that do not appear in the
record are not even legitimately included in an appendix.




                                                              -7-
                This issue is a complex one. We begin with an examination of the lower court’s
authority to address, sua sponte, questions related to best interests of an incompetent petitioner and
conflicting interests of counsel.

                  We understand the basis for the lower court’s concern about the possibility of
conflicting interests. The petitioner’s interests in the civil litigation are likely better served by
avoiding the guilty plea he made in the prior criminal case, while his interests in the criminal
litigation are perhaps better served by preserving the plea. Moreover, at least some of the
petitioner’s post-conviction attorneys presently or previously have represented members of the
petitioner’s family who may have interests in preserving the estate of the elderly and apparently ill
petitioner via the petitioner’s avoidance of the guilty plea and thereby potential avoidance of civil
liability. If the petitioner is competent, he may resolve the question of these conflicting interests by
choosing the course of action which he prefers. If he is not, these decisions should be made by a
representative who owes him an undivided duty of loyalty.

                The lower court sought to determine whether the petitioner was competent to make
these decisions, and if not, whether his interests were properly being protected by the attorneys
involved in representing his interests, one of whom stands as his representative in this action. To
that end, the court ordered the mental evaluation and appointed Attorney Loy as the attorney ad litem
for purposes of the competency inquiry.

                With respect to Attorney Hardin’s continuing involvement as the de facto “next
friend” of the petitioner, our supreme court has said,

        While a next friend may in a certain sense be a volunteer in bringing suit, the
        continuance of the exercise of his function is within the power of the court. It is in
        the province of the court of pendency, at any time, to inquire into his fitness to
        represent the interests of the incompetent, and to allow or direct that some one else
        be substituted in his place.

Williams v. Gaither, 139 Tenn. 587, 591, 202 S.W. 917, 918 (1918) (citing Kingsbury v. Buckner,
134 U. S. 650, 10 S. Ct. 638 (1890)). Therefore, the court had the authority to inquire into the
propriety of Attorney Hardin’s involvement as representative of the petitioner, and if necessary,
appoint a substitute representative.

                Similarly, a court may disqualify counsel if it finds that counsel’s representation of
a party is contrary to the Code of Professional Responsibility. In re Ellis, 822 S.W.2d 602 (Tenn.
Ct. App. 1991). The lower court in this case has not, at this juncture, disqualified any of the
petitioner’s attorneys from further representation, although it has appointed Attorney Loy in a dual
capacity of guardian and advocate for purposes of the competency inquiry.

               In view of the question of potential conflicts affecting Attorney Hardin as de facto
next friend and other members of the petitioner’s legal team, we are convinced that the appointment


                                                  -8-
of Attorney Loy as guardian and advocate for a limited purpose was a proper exercise of the court’s
authority. See Goins v. Yowell, 41 Tenn. App. 280, 286, 293 S.W.2d 251, 254 (1956) (appointment
of a guardian ad litem is for purpose of protecting the incompetent in the litigation).

               Once the competency inquiry is completed, Mr. Minor will either be before the court
as a competent party, in which case he may retain or discharge his present counsel, or alternatively,
he will be before the court as an incompetent party, in which case the court may allow him to
proceed through Attorney Hardin as his representative or appoint Attorney Loy or some other
individual as his guardian ad litem for the remaining litigation.11 If the latter situation of
incompetency arises and if the petitioner is not indigent, the petitioner’s representative would have
the duty of choosing counsel to represent Mr. Minor, subject to the court’s authority to discharge any
attorney whose representation would run afoul of the Code of Professional Responsibility.

                   Having determined that the court had the authority to inquire into competency and
conflicting interests, we next consider the court’s authority for ordering the mental examination as
a means of effecting the inquiries. The order directing the mental examination does not state any
underlying legal authority. During the hearing which preceded this order, the court posited that its
authority for the examination was “not through your regular competency to stand trial statute, . . .
[T]his more comes under the inherent authority of the Court . . . as opposed to any pigeon hole that
I can find . . . .” In a subsequent order denying reconsideration of the ruling, the court held that Code
section 33-7-301 provided authority for the court’s sua sponte action.

               Section 33-7-301 provides for mental examination of criminal defendants and post-
conviction petitioners in limited circumstances. The pertinent portions of that statute provide:

         (a)(1) When a defendant charged with a criminal offense is believed to be
                incompetent to stand trial, or there is a question about the defendant's mental
                capacity at the time of the commission of the crime, the criminal, circuit, or
                general sessions court judge may, upon such judge[’]s own motion or upon
                petition by the district attorney general or by the attorney for the defendant
                and after hearing, order the defendant to be evaluated on an outpatient basis.
                ...



         11
            Counsel for the petitioner argues that the lower court’s actions have d enied the petitioner his right to counsel
of his choosing in violation of the Sixth Amendment. Any such right has not been implicated at this stage. The court
has not disc harged the p etitioner’s post-conviction co unsel. As the case presently stands, Attorney Hardin is the de
facto next friend and Attorneys Mitchell, Howser, Hardin and Hill are counsel of record. Attorney Loy has not been
appointed in preference to any o f these ind ividuals; he is merely the attorney ad litem for the limited purpose of the
competency inquiry. If the court does at some point disqualify the petitioner’s counsel, then the petitioner may then
present any Sixth Amendment claim o f this nature that he believes exists. Before doing so, ho wever, the pe titioner’s
counsel may wish to review Caruthe rs v. State, 814 S.W .2d 64, 69 (T enn. Crim. App. 1991), in which this court said,
consistent with the United States Supreme Court, that the Sixth Amendment does not apply to post-conviction
proceedings.

                                                            -9-
       (2)     At any stage of a felony criminal proceeding, including a pre-trial hearing,
               trial, sentencing, or post-conviction proceeding, the state may move or
               petition the court to authorize the district attorney general to designate a
               qualified expert to examine the defendant if the defendant gives notice that
               the defendant intends to offer testimony about the defendant's mental
               condition, whether in support of a defense of insanity or for any other
               purpose. . . .

Tenn. Code Ann. § 33-7-301(a)(1)-(2) (2001). Simply put, the court may on its own motion order
a mental evaluation in a trial proceeding, but it has no specific authority under this statute to do so
in a post-conviction proceeding. The post-conviction court’s reliance on section 33-7-301 as
authority for the mental examination is misplaced.

                This does not end our inquiry, however. Tennessee Rule of Evidence 706 provides
that, in bench-tried cases, “the court may on its own motion or on the motion of any party enter an
order to show cause why expert witnesses should not be appointed and may request the parties to
submit nominations.” Tenn. R. Evid. 706. Moreover, Supreme Court Rule 28, the rule governing
post-conviction cases, allows the court the latitude to enter such orders “as are necessary to the
efficient management of the case” and “as may be required.” See Tenn. R. Sup. Ct. 28, §§
6(B)(3)(e), 6(B)(7). We believe that these provisions gave the lower court the legal authority to
order the mental evaluation.

                 The next question is whether that authority was properly exercised. Rule 706
provides, “[T]he court may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses should not be appointed and may request the parties to submit
nominations.” Tenn. R. Evid. 706. In most cases, the appointed experts should be agreed upon by
the parties, although the rule does allow the court to appoint experts of its own choosing. Id.

               The lower court did not follow the Rule 706 procedure of entering a preliminary show
cause order and permitting the parties to submit nominations for the mental evaluation expert. Upon
consideration, we believe that any error is de minimus because the lower court afforded the parties
the opportunity to address the propriety of the mental evaluation. This took place at what was
originally scheduled to be the evidentiary hearing and evolved into essentially a de facto show cause
hearing. The record reflects that the petitioner was allowed a thorough opportunity to oppose the
mental evaluation at this hearing, which he did at some length. The petitioner was afforded an
additional opportunity to voice his opposition at the subsequent hearing on the motion to reconsider,
and he also did so in an extensive memorandum filed with the court.

                 Likewise, we see no prejudice to the petitioner in the court’s choice of expert without
accepting nominations. The court ordered the evaluation at Middle Tennessee Mental Health
Institute, one of the entities authorized to perform mental evaluations in criminal cases or on motion
of a party in a post-conviction case. See Tenn. Code Ann. § 33-7-301 (2001). Even though we have
held above that section 33-7-301 does not apply to post-conviction mental evaluations on the court’s


                                                 -10-
motion, that statute does provide guidance in determining the propriety of the trial court’s choice of
expert. We therefore hold that the choice of expert was a reasonable and logical one.

              We decline to find error in the lower court’s order of a mental examination,
appointment of the attorney ad litem, and inquiry into competency and conflicting interests.

                                                              III

                 Finally, we consider whether the court below properly denied the petitioner’s motion
for recusal. The petitioner claims that recusal is required because (1) the judge was previously
employed in a supervisory position with the district attorney’s office; (2) the judge met with one of
the petitioner’s prospective expert witnesses in chambers without the presence of counsel; (3) the
trial court made an ex parte investigation by reviewing the circuit court file in the civil case; and (4)
the trial court has issued “egregious rulings” and has not adhered to Supreme Court Rule 28.12

              Recusal is appropriate whenever a trial judge’s impartiality can be reasonably
questioned. Tenn R. Sup. Ct. 10, Canon 3(E)(1); State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim.
App. 1993). A trial judge's denial of a motion to recuse will be upheld absent a showing of abuse of
discretion. Cash, 867 S.W.2d at 749. Reasons which warrant recusal include:

         (a)       the judge has a personal bias or prejudice concerning a party or a party’s
                   lawyer, or personal knowledge of disputed evidentiary facts concerning the
                   proceeding;
         (b)       the judge served as a lawyer in the matter in controversy, or a lawyer with
                   whom the judge previously practiced law served during such association as
                   a lawyer concerning the matter, or the judge has been a material witness
                   concerning it.

Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E(1)(a), (b).

                 In support of his first argument for recusal, the petitioner relied in part on the lower
court judge’s application for judicial nomination. This application reflects that the judge was,
indeed, fulfilling a supervisory role in the district attorney’s office prior to her appointment. She
stated in the application that she “supervise[s] the Criminal Court and General Sessions Team
Assistants (approximately 19).” Her practice involved “complex drug, homicide, and other types
of cases which may require in-depth investigation and preparation [with which she] works closely


         12
             The first three recusal issues pre sented on ap peal were ra ised an d addressed in the petitioner’s second request
for recusal. The fourth issue was not raised as a basis for recusal below. The petitioner’s first request for recusal has
not been included in the record. Apparently, the first request was in the form of a letter se nt to the court which was then
filed with the clerk when received by the court. A document appearing to be a copy of this letter appear in the appendix
to the petitioner’s brief but not in the record itself. As discussed in note 6 above, documents app earing in the appendix
but not the appellate record are not properly before the appellate court. We have not considered any information or
allegatio ns contained in the first request for recusal, excep t insofar as they were also raised in the second request.

                                                             -11-
with the Vice and Homicide Divisions of the Police Department.” In her order denying the first
request for recusal,13 the judge found that she was one of over 40 attorneys in the district attorney’s
office at the time the petitioner committed his crime that resulted in the underlying proceedings. She
found that she had no role in the investigation, indictment and prosecution of the petitioner in her
prior employment and that she had no knowledge of the facts of the case other than those gained in
her capacity as judge. She also found that she had been appointed to the bench over a year prior to
the return of the petitioner’s indictment. At a subsequent hearing on the issue, the court found that
her former role in the district attorney’s office did not include supervisory authority over child sex
abuse cases.

                In his brief, the petitioner argues that the district attorney’s office was actively
involved in the case against the petitioner “[a]lmost from the inception of the alleged offense.” He
also claims that his proof at the post-conviction evidentiary hearing will involve the conduct of the
district attorney’s office and one particular assistant district attorney, and the judge should not be in
the position of assessing the credibility of her former subordinate employee. Notwithstanding these
claims, the petitioner has not demonstrated that anything in the record belies the lower court’s
findings that she had no involvement, whether investigatory or supervisory, with the petitioner’s
criminal case while she was in the district attorney’s office.

                   The Commentary to the Code of Judicial Conduct says,

         A lawyer in a government agency does not ordinarily have an association with other
         lawyers employed by that agency within the meaning of Section 3(E)(1)(b); a judge
         formerly employed by a government agency, however, should disqualify himself or
         herself in a proceeding if the judge's impartiality might reasonably be questioned
         because of such association.

Tenn. R. Sup. Ct. 10, Code of Judicial Conduct, Canon 3E(1)(b) (Commentary).

                 This Commentary is instructive in the case at bar. The judge has dispelled, without
contradiction, any concerns about her actual involvement as a prosecutor or supervisor of the
prosecutor in this case. The district attorney’s office was a large one, with over 40 attorneys. The
judge, when employed as a prosecutor, performed duties in the district attorney’s office unrelated
to this case. Furthermore, there is nothing in the vague allegations about the conduct of another
prosecutor that so much as indicates that the conduct transpired during the judge’s tenure in the
district attorney’s office or that the allegedly culpable individual was employed during the same time
period that the post-conviction judge served as a prosecutor. It appears from documents filed in
support of the post-conviction petition that the prosecutorial misconduct allegation pertains to


         13
            As stated in no tes 6 and 12 above, the p etitioner’s first request for recusal is not properly before us as part
of the appellate record. The order denying it is, how ever. It is ap parent from the record that the trial judge’s former
employment was at issue in both the first and second motions. The judge’s findings in her first order are therefore
pertinent to resolution of this issue.

                                                           -12-
discovery violations and allowing false testimony at the sentencing hearing, both of which would
necessarily have occurred after the return of the indictment. The judge found that she had departed
from the district attorney’s office over one year prior to the indictment’s return. On these facts, we
see no abuse of discretion in the lower court’s denial of the motion to recuse based upon former
employment as a prosecutor. Accord Owens v. State, 13 S.W.3d 742, 757-58 (Tenn. Crim. App.
1999), perm. app. denied (Tenn.), cert. denied, 531 U.S. 846, 121 S. Ct. 116 (2000).

                The second basis upon which the petitioner sought recusal of the trial judge was her
in-chambers conference with Professor Neil Cohen, a prospective expert witness for the petitioner.
The petitioner does not allege that the merits of the case were discussed, but he claims that an
appearance of impropriety exists. The judge found that her communications with Professor Cohen
were related to an earlier, unrelated conversation about jury selection in capital cases. We see
nothing actually improper about this communication. With respect to the appearance of impropriety,
Professor Cohen is, at this point, only a prospective witness. He is the petitioner’s witness, and if
the judge has misrepresented the nature of their communication, it is within the petitioner’s power
to bring that evidence to light. He has not done so. Nothing in the disciplinary rules for judges or
lawyers prohibits judges, lawyers and professors of law from communicating with one another about
unrelated matters when they are involved in varying capacities in ongoing litigation, and no improper
appearance is generated in the usual circumstances. The lower court did not abuse its discretion in
denying the motion to recuse on this basis. See State v. Jones, 735 S.W.2d 803, 810 (Tenn. Crim.
App. 1987) (no basis for recusal when trial court held ex parte conference with prosecutor mid-trial
about unrelated matter and defendant failed to show prejudice).

                 Next, the petitioner takes issue with the lower court’s review of the circuit court file
in the civil case. He claims this was an improper independent investigation by the court. The law
is clear that the court must generally restrain itself to consideration of those facts that are before it
and may not conduct an independent investigation. See Tenn. R. Sup. Ct. 10, Code of Judicial
Conduct, Canon 3E(7)(e) (Commentary) (“A judge must not independently investigate facts in a case
and must consider only the evidence presented.”); State v. Hart, 911 S.W.2d 371, 376 (Tenn. Crim.
App. 1995). We believe, however, the court was empowered to judicially notice the civil file.

                A court may take judicial notice of facts “not subject to reasonable dispute” that are
“capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Tenn. R. Evid. 201(a). “Court records fall within the general rubric of facts readily
and accurately determined.” State v. Nunley, 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999), perm.
app. denied (Tenn. 2000). But cf. State v. Cash, 867 S.W.2d 741, 748-49 Tenn. Crim. App. 1993)
(trial judge should have recused himself after ex parte communication with prosecutor and review
of appellate court record relative to prior appeal of case, those actions culminating in the court sua
sponte entering an order attempting to reinstate a conviction previously vacated by the appellate
court).

               When a court intends to rely upon judicial notice principles to bring facts otherwise
outside the record into play in a proceeding, Rule 201 provides a mechanism for hearing upon


                                                  -13-
request “as to the propriety of taking judicial notice and the tenor of the matter noticed.” Tenn. R.
Evid. 201(e). Implicitly, the aggrieved party must register a timely objection under subsection (e);
otherwise, the noticed facts are taken as given in the trial and appellate proceedings.14 Nunley, 22
S.W.3d at 28; see Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Payne, Tennessee Law of
Evidence § 2.01[6][b] (4th ed. 2000) ("Failure to request a hearing can bar later appellate review of
judicial notice.").

                 In this case, the record reflects that the lower court referred to records of the civil
proceedings on two occasions. First, at the October 11, 2000 hearing which resulted in the
appointment of the attorney ad litem and the mental examination order, the judge returned from a
recess and announced that she had obtained the court file from the civil case. She said, “I hope
nobody objects.” Both parties were silent. Counsel for the petitioner expressed opposition to
appointment of the attorney ad litem and the competency inquiry, but none of the petitioner’s
attorneys, at least three of whom were present, voiced any objection to the court’s reference to the
civil case file. Thereafter, in the December 4, 2000 order denying the motion to reconsider rulings
that resulted from the October 11, 2000 hearing, the court recited facts gleaned from the civil file.
Interestingly, however, it was not until January 10, 2001 that the petitioner registered any objection
to the court’s reference to the civil file, just one day shy of three months after the court first referred,
without objection, to the civil pleadings and filings.

                The court records of the civil case were facts capable of ready and accurate
determination. Nunley, 22 S.W.3d at 288; see Tenn. R. Evid. 201(a). The court expressed its intent
to rely on those facts in October, and counsel stood mute as the court proceeded to do so. The court
did so a second time in December, and again counsel was silent. No objection was registered until
nearly three months after the court’s first reliance on judicially noticed facts and one month after the
second occurrence. Even then, counsel did not make a request under Rule 201 for a hearing on the
propriety of judicial notice. We hold that the petitioner’s counsel waived any complaint they might
have under Rule 201 to the court’s reference to the civil file by failing to promptly request a hearing
on the propriety of judicial notice.

                  Because the court properly exercised its powers of judicial notice, the references to
the civil file did not constitute an improper, ex parte investigation, and provided no basis for recusal.

                Finally, we consider the petitioner’s argument that recusal is appropriate because of
the lower court’s “egregious rulings and refusal to adhere to Supreme Court Rule 28." First of all,
this issue was not raised as a basis for recusal below, and it was not a basis upon which we granted
Rule 10 review. It is therefore not properly before us.


         14
             W e recognize that a crim inal defendant’s constitutional right to jury trial preve nts judicial notice from
operating as a co nclusive determinatio n of the fact notice d. See generally Cohen, et al., at § 2.01[8][c]. However, when
the issue in a criminal case is one to be determined by the court, rather than a jury, the court’s act of taking judicial notice
is coterminous with its acceptance, in its role as finder of fact, of the noticed fact as conclusively d etermined. Such is
the case here.

                                                             -14-
                However, we feel compelled to comment on the lower court’s handling of these
proceedings. As discussed above, we find nothing egregious about the lower court’s rulings.
Moreover, we do not believe the lower court has run afoul of Rule 28's scheduling guidelines for
prompt disposition of post-conviction actions. First, it must be noted that the evidentiary hearing
in this case was scheduled within the guidelines of Rule 28. The lower court postponed that hearing
upon discerning the necessity of inquiry into the petitioner’s mental competency and conflicting
interests of counsel. The petitioner’s counsel then pursued several lengthy motions in the lower
court and the Rule 10 application to this court. The petitioner’s counsel’s objections to the
competency and conflicts inquiry have contributed to the delay. While counsel certainly has the right
to oppose that inquiry, we will not lay the cause for the delay at the feet of the trial court, which
acted appropriately in the situation presented. In fact, we are compelled to commend the lower court.
Due to the many unique motions filed by the petitioner’s counsel and the unusual circumstances
presented, the lower court has done an exemplary job of managing the case and proceedings under
challenging circumstances.

               In conclusion, we hold that we improvidently granted review of the first issue. On
the other two issues, we affirm the rulings of the lower court.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                -15-
