                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-CA-01193-SCT

A. RANDALL HARRIS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          08/04/2015
TRIAL JUDGE:                               HON. JEFF WEILL, SR.
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   DAVID NEIL McCARTY
                                           SAGE EGGER HARLESS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ABBIE EASON KOONCE
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED - 01/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    On the morning of his client’s trial, defense attorney Randall Harris tried to withdraw

as counsel. When the judge declined his request, Harris told the judge he was “wrong” for

doing so, and he “was not going to participate” in the trial. Harris’s refusal to abide by the

court’s order forced a continuance. And the judge held him in direct criminal contempt.
¶2.    “Direct criminal contempt includes words or actions before the court that tend to

embarrass the court or prevent the orderly administration of justice.”1 We find Harris’s

actions clearly fell within this category. Thus, we affirm the judgment finding Harris guilty

of direct criminal contempt and ordering Harris to pay a $100 fine and $1,200 for the cost

of the jury venire.

                        Background Facts and Procedural History

       I.      This Court’s En Banc Order

¶3.    In early 2015, Hinds County Circuit Court Judge Jeff Weill, Sr., ordered the cases of

more than fifty indigent criminal defendants be reassigned from Alison Kelly with the Hinds

County Public Defenders Office (HCPDO) to appointed counsel. One of those cases was

Cameron Travelsted’s. Randall Harris was appointed to take over his defense.

¶4.    The HCPDO sought this Court’s intervention. And on May 21, 2015, we entered an

En Banc Order lifting Judge Weill’s blanket ban against Kelly. In re: Office of the Hinds

Cty. Pub. Defender, 2015-M-00303-SCT, En Banc Order (May 21, 2015). But this Court

denied the HCPDO’s request to automatically reassign all fifty-five cases back to Kelly

because those “cases [were] in various stages of development, and the best interest of justice

may be served by leaving them as they are.” Id. Instead, we permitted the HCPDO “to

inform each of its previous clients in the fifty-five cases . . . that they may choose to continue

with private counsel Judge Weill has appointed to represent them, or they may choose to

have the HCPDO reassume their representation.” Id.

       1
        Mingo v. State, 944 So. 2d 18, 32 (Miss. 2006) (citing Jordan v. State, 216 Miss.
542, 62 So. 2d 886, 888 (1953)).

                                                2
¶5.    Soon after the En Banc Order, the HCPDO met with Travelsted, who elected to stay

with his appointed counsel, Harris. In June, the HCPDO informed Judge Weill about

Travelsted’s decision. And Harris assured Judge Weill he was prepared to go forward with

Travelsted’s trial set for Monday, July 13, 2015.

       II.    Harris’s Motion to Withdraw

¶6.    But the Friday before trial, on July 10, Harris filed a motion to withdraw. In his

motion, Harris asserted that the Hinds County Board of Supervisors (Board) would not pay

for private counsel in cases in which the criminal defendant had elected to stay with

appointed counsel instead of going back to the HCPDO. So if he was not permitted to

withdraw, he would be put in the difficult position of having to sue the Board for payment.

¶7.    Judge Weill heard Harris’s motion Monday morning, before the trial began. Public

defender Alison Kelly also was present. On July 2, she had filed a motion to appear in

Travelsted’s case.

¶8.    When asked to present his motion, Harris told the court:

       I am here today to ask the Court to allow me to withdraw from this case,
       because it’s become clear to me that the board of supervisors—who pays the
       court-appointed attorney’s fees—they have made clear that they’re not going
       to pay me for services that I have rendered and will continue to be compelled
       to render in the event that you don’t allow me to withdraw.

Harris also told Judge Weill that Travelsted “has now opted to go back to the public

defender’s officer.” And “[t]he public defender has accepted that responsibility” and “is

desirous of representing him.” So as Harris saw it, “by allowing [him] to withdraw, that

settles the whole compensation issue with the board of supervisors.”



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¶9.       Judge Weill then asked Harris about the email the HCPDO had sent the month before

saying it had met with Travelsted and Harris, and that Harris would represent Travelsted at

trial. Harris acknowledged he too had received that email and had been prepared at that time

to go to trial on July 13. “But that was before it was made known to me I wasn’t going to get

paid.”2

¶10.      Judge Weill denied Harris’s motion from the bench, stating:

          After considering the argument of the parties, the Court finds the motion to
          withdraw is not well-taken [and] should be denied. It’s my belief that the
          order appointing Mr. Harris to represent Mr. Travelsted is valid pursuant to the
          Mississippi Supreme Court’s May 21, 2015 En Banc Order. Mr. Travelsted
          notified this Court on June 5, 2015, that he elected for Mr. Harris to represent
          him going forward. Accordingly, this Court then set forth deadlines and
          specially scheduled the trial on this matter. The Court also put the defendant
          on notice that a last-minute change in counsel would not warrant a continuance
          in this matter. It appears as though Mr. Travelsted’s attempt to now have Ms.
          Kelly represent him is an attempt to secure continuance of this trial.
          Accordingly, I will deny the motion to withdraw, and this matter will proceed
          to trial as scheduled at 1:00 pm today.

¶11.      At this point, with Harris still Travelsted’s attorney of record, Kelly asked to be

excused. She explained the ore tenus motion to continue she had planned to make was now

moot.

          III.   Trial Court’s Finding of Direct Criminal Contempt

¶12.      After Kelly left, Judge Weill asked Harris if he had any more motions before trial.

Harris responded:

          Judge, I’m not participating in this trial. You know, I’m glad that the
          [Supreme] Court believes your ruling is correct. The Supreme Court never

          2
        The State also was asked if it wanted to weigh in. The State said nothing, except that
it was prepared to go forward that morning with Travelsted’s trial.

                                                 4
       said that in the event that his case comes up like this, if he opts to do this, the
       Board’s going to pay. It just gave him the option of doing that. The Board has
       told you they’re not paying. The Board may or may not, you know, tell the
       Supreme Court. I mean, until the Supreme Court mandates him to pay, I don’t
       see it happening.

       So I’m not participating here. Even though you believe you’re right, I believe
       that you’re wrong. And I’m just not going to participate.

(Emphasis added.) Judge Weill then asked, “So you’re refusing to participate in the trial?”

And Harris replied, “I’m refusing to participate under these circumstances. Yes, sir.”

¶13.   Based on Harris’s defiance of his order, Judge Weill found him in direct criminal

contempt. With Travelsted’s trial unable to proceed that afternoon as scheduled, Judge Weill

set a status conference for the next week. He directed Harris to appear at that hearing

“because one of the other matters will be sentencing on the contempt issue.” At Harris’s

request, Judge Weill said he would also hear any arguments Harris may have for why his

criminal-contempt conviction should be set aside.

¶14.   At the status conference—after giving Harris an opportunity to plead his case—Judge

Weill entered an order, confirming Harris had been guilty of direct criminal contempt. The

order also directed Harris to pay a $100 fine and a $1,200 assessment for the cost of the jury

that had shown up for voir dire on July 13. See URCCC 3.13.

       IV.    Harris’s Petition for Extraordinary Writ

¶15.   In response to the order, Harris filed a Petition for Writ of Extraordinary Relief, which

we deemed a notice of appeal. On appeal, Harris raises three issues:

       I.     The trial court violated his right to due process.




                                               5
       II.    He lacked the legal capacity to represent Travelsted at trial.

       III.   The $1,200 sanction is void because the civil settlement rule can never
              apply to criminal matters, and because the venire was not wasted.

                                         Discussion

       I.     The record supports finding Harris guilty of direct criminal
              contempt beyond a reasonable doubt.

¶16.   Before addressing Harris’s specific claims on appeal, we must first determine if the

record supports finding Harris guilty of contempt beyond a reasonable doubt. “Generally

speaking, contempt matters are committed to the substantial discretion of the trial court” and

are reviewed only for manifest error. Mingo v. State, 944 So. 2d 18, 32 (Miss. 2006)

(quoting In re Williamson, 838 So. 2d 226, 237 (Miss. 2002)). But when the contempt is

criminal, we “proceed[s] ab initio and will determine on the record whether the person in

contempt is guilty of contempt beyond a reasonable doubt.” Id.

¶17.    Whether the contempt is civil or criminal hinges on the purpose of the contempt

finding. “If the primary purpose of the contempt order is to enforce the rights of private

party litigants or enforce compliance with a court order, then the contempt is civil.” Id. But

if the purpose is “to punish the contemnor for disobedience of a court order,” then the

contempt is criminal. Id. Here, the purpose of the contempt finding was to punish Harris for

disobeying the trial court’s order to continue representing Travelsted. It was not to enforce

compliance, because Harris already had announced he would not comply. So the contempt

was clearly criminal, prompting this Court’s heightened review.




                                              6
¶18.   The criminal contempt was also direct. Direct contempt occurs right in front of the

court. Neely v. State, 98 Miss. 816, 54 So. 315 (1911). “It may consist of an open insult, in

the presence of the court, to the person of the presiding judge, or a resistance to or defiance

of the power and authority of the court.” Id. And it “includes words or actions before the

court that tend to embarrass the court or prevent the orderly administration of justice.”

Mingo, 944 So. 2d at 32 (citing Jordan v. State, 216 Miss. 542, 62 So. 2d 886, 888 (1953)).

¶19.   In Mingo, a criminal defense attorney acted similarly to Harris. One afternoon before

trial was to recommence, he announced to the judge that he was unwilling to continue to

represent his client and intended to withdraw. Id. The trial judge found the attorney’s

motion to withdraw was not well-taken. Still, the attorney refuse to proceed. Id. at 33. On

appeal, this Court found “[d]efense counsel’s refusal to continue with trial clearly constituted

an action tending to prevent the orderly administration of justice.” Id. So “[t]he trial judge’s

decision to hold counsel in direct criminal contempt, while serious, was within his

discretion.” Id.

¶20.   We hold the same here. Like the attorney in Mingo, Harris defied the trial court’s

authority when he refused to represent Travelsted at his trial scheduled that day, despite not

being granted permission to withdraw.           And his actions “prevent[ed] the orderly

administration of justice” as it delayed Travelsted’s trial. Thus, we find the record supports

finding Harris guilty of direct criminal contempt beyond a reasonable doubt.

       II.    Harris’s appellate arguments are either procedurally barred or fail
              on the merits.

              A.      Harris’s due-process rights were not violated.

                                               7
¶21.   On appeal, Harris argues the trial court violated his due-process rights by not

providing him notice of the charges against him and potential sentence and by not recusing

himself. “In the case of constructive criminal contempt, we have held that defendants must

be provided with procedural due process safeguards, including a specification of charges,

notice, and a hearing.” In re Smith, 926 So. 2d 878, 888 (Miss. 2006) (emphasis added).

We also have found that “in cases of indirect or constructive criminal contempt, where the

trial judge has substantial personal involvement in the prosecution, the accused contemptor

must be tried by another judge.” Corr v. State, 97 So. 3d 1211, 1214 (Miss. 2012) (quoting

Graves v. State, 66 So. 3d 148, 154 (Miss. 2011)). So “[i]f [Harris’s] actions actually

constituted constructive criminal contempt, [his] due process rights would guarantee [him]

more than the immediate sentence [he] received, including a different judge to hear the

contempt proceedings.” In re Smith, 926 So. 2d at 888.

¶22.   But contrary to Harris’s assertion on appeal, “this is not remotely close to being a case

of constructive contempt.” Id. “[C]onstructive contempt involves actions which are

committed outside the presence of the court.” Corr, 97 So. 3d at 1214 (emphasis in original).

By contrast, “direct criminal contempt involves words spoken or actions committed in the

presence of the court[.]” Id. Here, the words Harris spoke and the actions he committed in

the presence of the court led to his punishment. So Harris’s actions amounted to direct

criminal contempt, not constructive.

¶23.   “Punishment for direct contempt may be meted out instantly by the judge in whose

presence the offensive conduct was committed.” Id. (emphasis in original). This is because



                                               8
“[a] direct criminal contempt . . . takes place in the very presence of the judge making all the

elements of the offense personal knowledge.” Id. So like the attorney in In re Smith,

because the conduct at issue occurred in front of the trial judge, Harris “was not due more

than the hearing [he] received.” In re Smith, 926 So. 2d at 888. So he was “not denied any

due process protections.” Id.

              B.      Harris did not lack the “legal capacity” to represent Travelsted.

¶24.   Harris also argues he lacked the “legal capacity” to represent Travelsted.

Consequently, he asserts, he should not have been found in contempt for refusing to continue

with the representation. But Harris waived this argument by not arguing it before the trial

court. Gale v. Thomas, 759 So. 2d 1150, 1159 (Miss. 1999) (citing Davis v. State, 684 So.

2d 643, 658 (Miss. 1996); Cole v. State, 525 So. 2d 365, 369 (Miss. 1987)) (“As this Court

has stated, time and again, an issue not raised before the lower court is deemed waived and

is procedurally barred.”). Harris never asserted, when arguing his motion to withdraw, he

could not represent Travelstead due to lack of “legal capacity.” Instead, Harris’s sole

argument was that he should not have to represent Travelsted, given the Board’s stance on

paying for his services.

¶25.   But even had he preserved this claim, Harris cannot support his argument that the law

somehow mandated he cease representing Travelsted, despite not being granted the court’s

permission to do so. Harris leans heavily on the Mississippi Rules of Professional Conduct

to assert that—as soon as Travelsted, less than two weeks before trial, reversed his decision

to stick with Harris as his attorney—Harris “no longer had any legal or factual authority to



                                               9
represent Mr. Travelsted at trial.” Harris partially quotes Rule 1.16(a)(3)—“a lawyer shall

not represent a client, or where representation has commenced, shall withdraw from the

representation of a client if . . . the lawyer is discharged.” Miss. R. Prof’l Conduct

1.16(a)(3). But Harris leaves out an important part of that rule. Rule 1.13(a)(3) begins with

an important qualification—“Except as stated in paragraph (c) . . . .” And paragraph (c)

clearly states, “When ordered to do so by a tribunal, a lawyer shall continue representation

notwithstanding good cause for terminating the representation.” Miss. R. Prof’l Conduct

1.16(c) (emphasis added). So the Rules of Professional Conduct did not authorize Harris to

withdraw despite being ordered not to. They actually required him to continue the

representation.

¶26.   Harris also relies on this Court’s En Banc Order. Because the En Banc Order gave

Travelsted the option of keeping Harris as his counsel or returning to the HCPDO, Harris

contends that he would be in violation of the En Banc Order if he continued to represent

Travelsted once Travelsted said he wanted to switch back to the HCPDO. But as part of his

ruling on the motion to withdraw, Judge Weill expressly found Harris’s continued

representation complied with the En Banc Order. And Harris could not ignore this ruling

simply because, in his own words, “Even though you believe you’re right, I believe that

you’re wrong.”

¶27.   Under Uniform Rule of Circuit and County Court Practice 1.13, “When an attorney

makes an appearance for any party in a case, that attorney will not be allowed to withdraw

as attorney for the party without the permission of the court.” (Emphasis added.) And



                                             10
without the court’s permission, an attorney must continue the representation

“notwithstanding good cause for terminating the representation.” Miss. R. Prof’l Conduct

1.16(c) (emphasis added). So even if Harris believed he had good cause to terminate his

representation of Travelsted based on the circumstances, he still had to obtain the court’s

permission in order to withdraw. And once denied permission, he could not simply ignore

the judge’s order because he believed the judge was wrong. See Mingo, 944 So. 2d at 33

(affirming direct criminal-contempt conviction of an attorney who had told the trial court its

denial of counsel’s motion to withdraw was a mistake and that, ethically, counsel could not

continue the representation); Miss. R. Prof’l Conduct 1.16(c).

              C.      The assessment of $1,200 for cost of the jury venire is valid.

¶28.   Finally, Harris challenges the trial court’s reliance on Uniform Rule of Circuit and

County Court Practice 3.13 to assess Harris $1,200—the cost of the jury.

¶29.   Under Rule 3.13, “The court may assess all costs, including fees and mileage of jurors

who have been required to be present for the trial, against whichever party litigant or attorney

it deems appropriate, for failure of an attorney to try the case[.]” URCCC 3.13.3 Harris

argues this rule applies only to attorneys who fail to try civil cases, not criminal ones. But

nothing in the rule itself or this Court’s interpretation precludes its application to criminal

trials. In fact, in Crosby v. State, this Court relied on Rule 3.13 when it affirmed the trial

judge’s assessment of the cost of the jury against a criminal defense attorney who



       3
         Rule 3.13 also gives the court discretionary authority to assess costs “for failure to
notify the court of settlement of a case before 5:00 P.M. on the day before the trial.” URCCC
3.13.

                                              11
“deliberately set out to delay [his client’s criminal] trial after his motions for continuance had

been denied.” Crosby v. State, 760 So. 2d 725, 728 (Miss. 2000). Because “[Rule] 3.13

provides the court with authority to assess an attorney costs, including fees and mileage of

jurors, for failure of an attorney to try the case,” this Court found “that the trial judge did not

abuse his discretion . . . in assessing the cost of the jurors’ pay for the day of jury duty.” Id.

Likewise, Rule 3.13 likewise provided the trial court authority to assess Harris the cost of the

jury, based on his finding that, because of “Harris’s refusal to comply with the rulings of this

Court, the . . . cause of action [against Travelsted] could not proceed to trial as scheduled[.]”

¶30.   Alternatively, Harris argues the $1,200 assessment “was wrong because the venire

was actually used in other jury trials.” But the only evidence Harris provides to support this

contention is an affidavit attached to his Notice of Filing, which he filed after his notice of

appeal. Harris never presented this affidavit to the trial court during the July 22 hearing,

during which—as Harris had been notified—evidence related to his sentence was to be

presented. Neither did Harris attached this affidavit to a motion to alter the contempt order.

See M.R.C.P. 59(e). Instead, Harris asks this Court on appeal to make an evidentiary finding

that the jury venire that showed up on July 13, 2015, “was not wasted.” Because Harris asks

us to hold the trial court in error based on an argument and evidence not presented below, we

find this argument to be procedurally barred. See Hardy v. Brock, 826 So. 2d 71, 76 (Miss.

2002) (“Mississippi appellate courts may not consider information that is outside of the

record.”); Gale, 759 So. 2d at 1159 (deeming arguments not raised before the trial court to

be waived and procedurally barred).



                                                12
                                          Conclusion

¶31.   Because the record supports finding beyond a reasonable doubt that Harris was in

direct criminal contempt when he refused to represent Travelsted at trial after his motion to

withdraw was denied, and because Rule 3.13 authorized the trial court to assess Harris the

cost of the jury that had shown up for the Travelsted’s trial, we affirm the conviction of direct

criminal contempt and $100 fine, as well as the $1,200 assessment for the cost of the jury.

¶32.   AFFIRMED.

    DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN AND
BEAM, JJ., CONCUR. WALLER, C.J., AND CHAMBERLIN, J., NOT
PARTICIPATING.




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