                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CT-00626-SCT

CHARLES B. GRAVES, JR.

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         03/12/2009
TRIAL JUDGE:                              HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   STEVEN ELLIS FARESE, JR.
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LADONNA C. HOLLAND
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND RENDERED - 07/28/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.   When a prosecutor was not prepared to proceed to trial and had not produced a video

to defense counsel, a circuit judge held him in criminal contempt and ordered him

incarcerated. Because the judge denied the prosecutor due process of law, and because the

record contains insufficient evidence of criminal contempt, we reverse and render.

                                        FACTS

¶2.   Tunica County Prosecutor Charles Graves appeared in circuit court on March 12,

2009, with three DUI cases on the docket. Both Graves and defense counsel informed
Circuit Court Judge Albert Smith that the first two cases were not ready to proceed because

defense counsel had not been provided the video recordings of the arrests.

¶3.    It is less than clear why the video recordings were not produced to defense counsel,

but the transcript does indicate that Graves had requested the video recordings from the

Tunica County Sheriff’s Department several months prior to the trial, and they had not been

produced. When asked why, Deputy Ricky Ray, referring to one of the videos, stated: “It

could have been gotten to. All [Graves] had to do was go over to the property room and get

the tape, just like I did this morning.”

¶4.    Graves argued that, after he requested the tapes, the ball was in the sheriff’s court, and

that he could not unilaterally appear at the sheriff’s office and take possession of evidence.

¶5.    Graves told Judge Smith that he asked Deputy Ray to show the tapes to defense

counsel two weeks earlier, but the deputy had said he did not have the tapes with him at that

time. Both Graves and defense counsel agreed that, because the video recordings had not

been produced by the sheriff’s office, the cases should be dismissed.

¶6.    Upon being advised that the first two cases were not ready to proceed to trial, Judge

Smith responded: “You are both in contempt of court! You are not ready. Something is

wrong in this thing. You better be ready on this thing. That’s two contempts you got on the

record, two cases.”

¶7.    When the third case—State v. Zylka—was called, the defense attorney was not

present. Graves informed the court that he had agreed not to oppose a continuance because

defense counsel had a conflict, but that defense counsel would need to move the court for the

continuance.


                                               2
¶8.    Judge Smith ordered that the trial begin anyway, but changed his mind and halted the

proceedings during the direct examination of the first witness because the defendant had no

attorney. Although Judge Smith later entered a written order of contempt that recited that

Graves had been held in contempt during the Zylka trial, the State concedes on appeal that

“it does not appear . . . that Graves was held in contempt a third time.”

¶9.    Judge Smith sentenced Graves to two days in jail and fined him $100. While Graves

was in jail, Judge Smith presided over a contempt hearing, following which, he modified his

prior order by reducing Graves’s jail term to time served, but left the $100 fine intact.

¶10.   Graves appealed his conviction and sentence, and the Court of Appeals reversed,

finding insufficient evidence of the necessary criminal intent.1 While we agree with the

Court of Appeals, we granted certiorari to clarify certain aspects of the law of contempt.

                                          ANALYSIS

¶11.   While every case turns on its particular facts, our law includes general rules that apply

to contempt proceedings. We begin our analysis of this case with a brief overview of those

rules to provide guidance to our judges and notice to the attorneys who practice before them.

       The purpose of civil contempt is to compel compliance with the court’s
       orders, admonitions, and instructions, while the purpose of criminal
       contempt is to punish.

¶12.   Judges use the power of civil contempt to compel compliance with their instructions,

admonitions, and previous orders; and they use the power of criminal contempt to punish




       1
           Graves v. State, ___ So. 3d ___, 2010 WL 3222038 (Miss. Ct. App. Aug. 17, 2010).

                                                3
inappropriate behavior, such as insulting remarks to the court,2 or acts that demonstrate the

accused “wilfully and deliberately ignored the order of the court.” 3 A court’s inherent power

and authority to punish litigants and attorneys for criminal contempt “is a necessary and

integral part of the independence of the judiciary, and is absolutely essential to the

performance of the duties imposed upon them by law.” 4

¶13.   Although most contempt is either civil or criminal, a single act—or failure to

act—could lead to both civil and criminal contempt.5 For instance, an attorney refusing to

comply with a court’s order to produce a particular document could be held in contempt and

incarcerated until the document is produced, or until it becomes clear that incarceration will

not lead to compliance with the order. This would be civil contempt.6

¶14.   But there are many reasons why the attorney may have failed to produce the

document. Where the reason is frivolous or disrespectful, the judge may also hold the

attorney in criminal contempt and order punishment of a fine, incarceration for a specific

time, or both.7 The judge may determine that criminal contempt is inappropriate where the


       2
         In re Smith, 926 So. 2d 878, 888 (Miss. 2006) (citing Neely v. State, 54 So. 315, 316
(Miss. 1911)).
       3
         R.K. v. J.K., 946 So. 2d 764, 778 (Miss. 2007) (citing Mizell v. Mizell, 708 So. 2d 55, 64
(Miss. 1998); Cooper v. Keyes, 510 So. 2d 518, 519 (Miss. 1987)).
       4
        Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450, 31 S. Ct. 492, 501, 55 L. Ed.
797 (1911).
       5
           See, e.g., Sappington v. Sappington, 147 So. 2d 494 (Miss. 1962).
       6
          In re Williamson, 838 So. 2d 226, 237 (Miss. 2002) (“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.”).
       7
           See, e.g., Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994).

                                                  4
attorney’s refusal to produce the document was not unreasonable or disrespectful—for

instance, where the attorney had a good-faith belief that the document was privileged.

       In certain narrow circumstances, judges should recuse and allow another
       judge to preside over the contempt proceedings.

¶15.   First, although not raised in this case, where the provisions of Canon 3E of the Code

of Judicial Conduct apply, a judge must always recuse and allow another judge to preside

over contempt proceedings, civil or criminal. Also, where an accused allegedly commits an

act of criminal contempt that requires the judge to rely—in whole or in part—on conduct that

occurred outside the courtroom, and the judge is the complaining party (that is, no party to

the litigation moved the court for an order of criminal contempt), due process requires that

the accused be afforded an “opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” 8 One accused of criminal contempt is entitled to the same protections

as any criminal defendant. For example, if the punishment is a fine exceeding $500 or

imprisonment for more than six months, the accused is entitled to a trial by jury.9

¶16.   Our caselaw has incorporated various labels, such as direct, indirect, and constructive

contempt. These labels can sometimes lead to the false notion that a particular label requires

a particular procedure. Regardless of the label, the guidelines set forth above should be

applied in cases of contempt.

       In the case before us today, Graves had a due-process right to notice and
       a hearing before a different judge.


       8
         Dennis v. Dennis, 824 So. 2d 604, 609 (Miss. 2002) (quoting Mathews v. Eldridge, 424
U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976); Armstrong v. Manzo, 380 U.S. 545, 552,
85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)).
       9
           Walls v. Spell, 722 So. 2d 566, 574 (Miss. 1998).

                                               5
¶17.   This Court—in reviewing criminal-contempt cases—proceeds “ab initio and will

determine on the record whether the person in contempt is guilty of contempt beyond a

reasonable doubt.” 10 The State has the burden of proving—from the appellate record—the

elements of contempt beyond a reasonable doubt.11

¶18.   In this case, it is undisputed that the convictions involve criminal contempt. The State

contends that Graves’s conduct amounted to direct criminal contempt, which “involves

words spoken or actions committed in the presence of the court that are calculated to

embarrass or prevent the orderly administration of justice.” 12 On the other hand, Graves

contends he was punished for the out-of-court conduct mentioned in Judge Smith’s contempt

order, so he argues the citations were for indirect contempt.13

¶19.   In the Murphy case, Judge Smith held Graves in contempt because he “failed to

adequately prepare for this case [and] wholly failed to follow this [c]ourt’s previous order

in this matter. . . . Mr. Graves . . . [is] hereby in contempt of this [c]ourt by [sic] failing to

follow its previous order.” And concerning Woods, Judge Smith held that Graves “had [not]

asked for a continuance as required, nor . . . viewed the tape [that] the arresting officer said

that either attorney could have obtained.” In summary, much of the offending conduct cited

by Judge Smith occurred—or should have occurred—outside the courtroom, so we agree

       10
            Williamson, 838 So. 2d at 237.
       11
        Brame v. State, 755 So. 2d 1090, 1093 (Miss. 2000) (citing In re Holmes, 355 So. 2d 677,
679 (Miss. 1978)).
       12
        In re Hampton, 919 So. 2d 949, 955 (Miss. 2006) (citing Williamson, 838 So. 2d at
237–38; Moulds, 791 So. 2d at 224–25).
       13
        In re Hampton, 919 So. 2d at 955 (“[C]onstructive contempt involves actions [that] are
committed outside the presence of the court . . . .”).

                                                6
with Graves that this case is one of indirect criminal contempt—that is, for acts that—in

whole or in part—occurred outside the presence of the judge.

¶20.   In presenting its case on appeal, the State has the burden of proving to us beyond a

reasonable doubt that Graves “wilfully and deliberately ignored the order of the court.” 14 The

State contends it met its burden in the Murphy case because Graves failed to retrieve the

videotape and give it to defense counsel despite the court’s previous order to do so. Judge

Smith asked Officer Ricky Ray (the arresting officer in the underlying DUI case) whether

Graves had access to the tape. Officer Ray replied: “All [Graves] had to do was go over to

the property room and get the tape, just like I did this morning.”

¶21.   On the other hand, Graves claims that he had requested the tape months before the

second trial date and that the officer never released it to him. Graves also claims that it

would have been improper for him to have taken the tape from the property room, “thereby

breaking the chain-of-custody for the evidence.”

¶22.   There is no other evidence in the record suggesting that Graves “wilfully and

deliberately” ignored the court’s order. We hold that the State presented insufficient

evidence to prove, beyond a reasonable doubt, that Graves “wilfully and deliberately ignored

the order of the court” in the Murphy case.15 And because it is undisputed that there was no




       14
            R.K., 946 So. 2d at 778.
       15
            Id.

                                              7
prior court order in the Woods case, there was no indirect criminal contempt as a matter of

law.16

¶23.     But even if the State had met its burden, the conviction for indirect criminal contempt

could not stand. Judge Smith was the complainant for alleged criminal contempt that

occurred, at least in part, outside his presence, so Graves was entitled to due-process notice

and a hearing.17 As discussed above, criminal contempt often takes the form of conduct that

“embarrass[es] the court,” or that “consist[s] of an open insult . . . to the person of the

presiding ju[dge] . . . .”

¶24.     We have held that, in cases of indirect or constructive criminal contempt, “where the

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

must be tried by another judge.” 18 While we continue to emphasize that not every personal

involvement requires recusal,19 examples of “substantial personal involvement in the

prosecution” warranting recusal include cases where the trial judge acts as a “one-man grand

jury;” 20 where the trial judge is “instrumental in the initiation of the constructive-contempt




         16
          See, e.g., Premeaux v. Smith, 569 So. 2d 681, 684 (Miss. 1990) (existence of a valid order
is prerequisite to a finding of indirect or constructive contempt).
         17
              In re Smith, 926 So. 2d at 888 (citing Williamson, 838 So. 2d at 226).
         18
         Cook v. State, 483 So. 2d 371, 376 (Miss. 1986) (citing Mayberry v. Pennsylvania, 400
U.S. 455, 465–66 (1971)).
         19
              See Cook, 483 So. 2d at 377 n.6.
         20
              In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955).

                                                    8
proceedings;” 21 and where the trial judge “acts as prosecutor and judge.” 22 In this case, Judge

Smith should not have presided over Graves’s contempt proceeding.

¶25.   We hold that Graves was denied his constitutional right to due process of law. He was

given no notice of the hearing, and he was not informed of the charges against him until

moments before he was taken to jail. When the court did later conduct a hearing, Graves was

not present, and the hearing was conducted by Judge Smith, rather than a different judge, as

required by our precedent. And in finding Graves was in contempt of court, the judge relied

on matters that did not occur in his presence. Under such circumstances, we must reverse

and render Graves’s convictions.

                                         CONCLUSION

¶26.   Of the three counts of contempt listed in the trial court’s order, one—Zylka—was

undisputedly erroneous; another—Woods—was unsupported by any evidence; and the

third—Murphy—was not supported by sufficient evidence of the necessary intent. And in

all three cases, Graves was denied his right to due process.            Accordingly, Graves’s

convictions are reversed and the order of the Tunica County Circuit Court is vacated.

¶27. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED
AND RENDERED.

    WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.




       21
            Terry v. State, 718 So. 2d 1097, 1105 (Miss. 1998).
       22
            Cook, 483 So. 2d at 376.

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