                 IN THE SUPREME COURT OF MISSISSIPPI
                          NO. 94-KA-00528-SCT
KAY LYNN TERRY, WILLARD L. McILWAIN, JR.
AND TRACI RENEE EVANS, a/k/a TRACY EVANS
v.
STATE OF MISSISSIPPI

                          CONSOLIDATED WITH

                            94-KA-00546-SCT

KAY LYNN TERRY, WILLARD L. McILWAIN, JR.
AND TRACI R. EVANS
v.
STATE OF MISSISSIPPI




DATE OF JUDGMENT:                06/01/94
TRIAL JUDGE:                     HON. EUGENE M. BOGEN
COURT FROM WHICH APPEALED:       WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:        LOUIS G. BAINE, III
                                 E. TUCKER GORE
                                 PRO SE
ATTORNEY FOR APPELLEE:           OFFICE OF THE ATTORNEY GENERAL
                                 BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:               FRANK CARLTON
NATURE OF THE CASE:              CRIMINAL - MISDEMEANOR
DISPOSITION:                     REVERSED AND RENDERED - 8/6/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                  8/27/98




   EN BANC.
     ROBERTS, JUSTICE, FOR THE COURT:


                                 STATEMENT OF THE CASE

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

                                 ASSIGNMENTS OF ERROR

                           of Kay Terry and Willard L. McIlwain, Jr.


     I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING KAY
     TERRY IN CONTEMPT WHEN THERE WAS NO EVIDENCE OF ANY ACT ON
     HER PART WHICH LED TO THE SUBJECT ARTICLE BEING PUBLISHED.

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

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

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

                                 ASSIGNMENTS OF ERROR

                                         of Traci Evans


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

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

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

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

                                     STATEMENT OF FACTS

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

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

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

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

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

¶8. On that same Monday, May 23, 1994, the Circuit Court for Washington County, Mississippi
granted the State's Motion for a Continuance, and the embezzlement trial of Terry was continued
without date. Judge Bogen issued a summons for Kay Terry and Willard L. McIlwain, Jr. to appear
before the Circuit Court of Washington County, Mississippi at 10:00 a.m. on the 1st day of June,
1994, to show cause why they should not be held in contempt of court for violating Rules 4.01(3)
and (6) of the Uniform Rules of Circuit Court Practice by causing to be published or failing to
prevent the publication of the subject advertisement. Additionally, on May 25, 1994, Judge Bogen
had summons issued for Traci Evans to appear before the Circuit Court of Washington County,
Mississippi at 10:00 a.m. on the 1st day of June, 1994, to also show cause as to why she should not
be held in contempt of Court for violating the same rules enumerated above.

¶9. On June 1, 1994, the Circuit Court of Washington County, Mississippi convened with Judge
Bogen presiding. The State was represented by Frank Carlton and Gaines Dyer. Willard L. McIlwain,
Jr. and Kay Terry were represented by Martin A. Kilpatrick. Traci Evans also appeared, but without
counsel. After tending to preliminary matters, Judge Bogen opened the contempt proceedings with
the following statement:

     THE COURT:

     All right, the Court, on its own, scheduled this hearing on contempt citations issued for Willard
     L. McIlwain, Jr., Kay Terry, and Traci Evans.

     On Sunday, May 22, 1994, and on the following two days, there appeared in the Delta
     Democrat Times an advertisement pertaining to a matter set for trial on May 25, 1994. The trial
     scheduled for that day was the State of Mississippi versus Kay Terry, Cause No. 23, 502, and
     arose from an indictment charging Ms. Terry with embezzlement from her former employer,
     Friedman Iron and Metal Company.

     I thought the advertisement was extraordinary. In 26 years at the bar and bench, I've never seen
     anything like it. It appeared to me to constitute a violation of the Uniform Criminal Rules of the
     Circuit Court practice regarding pretrial publicity and further appeared to me to constitute an
     attempt to influence the jury pool to be called for jury duty during the week of May 23, and I
     have previously granted the State's motion for a continuance of the trial. The case will be reset
     for a later date.
     We are here today at my direction to fully explore the circumstances and background and
     facts surrounding the publication of the advertisement, the effect of which has been
     compounded by further coverage in the news and the appearance on television, and I'm told
     radio as well, by Ms. Evans and perhaps others. We'll more fully develop that today.

(emphasis added).

¶10. Also, at the beginning of the proceedings Judge Bogen asked if the parties were represented by
counsel. Terry and McIlwain stated that Mr. Kilpatrick was representing them. Evans responded to
Bogen's question in the negative. However, he proceeded with the case. After receiving testimony
and evidence, the court then made its ruling.

¶11. During the course of the proceedings, Evans testified that she bought and paid for the ad with
her own money. She stated the money used for the ad was 95% of her money, and she had gotten the
rest from her friends. Evans stated that after the first trial in January, she had a conversation with
Terry and said she was going to write letters to the editor, to which Terry replied that she did not
care, as long as what was stated in the letters was the truth. Evans testified her purpose for placing
the ad in the paper was to allow people to read over the polygraph examination, but not to sway any
potential jurors because they should make up their own mind, regardless of what they read in the
paper. Evans also testified that she thought her article was not polluting the jury pool. Evans stated
she merely wanted to arouse public interest in the case. On cross-examination, Evans reiterated that
the ad was not necessarily for the public to know Terry had passed a polygraph test, but to arouse the
curiosity of people so they would attend the trial.

¶12. The first communication Terry had with her attorney concerning this matter was on Friday
afternoon after her attorney had received a letter about the article from Mr. Dyer stating that Terry
had placed the article. Her attorney inquired as to whether she had placed the article or had any
connection with its placement, to which she responded in the negative. Terry realized that her
attorney was upset and left work to go to his office. When she arrived he had gone to the newspaper.
Upon his return, she went with her attorney to his library while he attempted to do some quick
research on the issue to see whether or not the article could be stopped. Terry had given an affidavit
stating that she had nothing to do with the ad or its being published.

¶13. McIlwain testified that he had never met Traci Evans, until he confronted her subsequent to the
article's publication, nor had he ever communicated with her, in any form until after the publication of
the article. McIlwain testified that he had closed his office for the week around noon on Friday so
that he and his staff could go to the Cotton Club Casino to celebrate the settlement of a case. He
stated that while at the casino the secretary from the Dyer Law Firm came in and handed him a letter
indicating Terry had sent an article to the newspaper. McIlwain was concerned about the allegations
in the letter and went back to his office around 3:00 to 3:30 p.m. This was the first time he had any
knowledge that a letter or article had been sent to the newspaper, other than there having been
statements that some friends of Kay's had written letters to the editor. He stated he immediately went
to his office and called Kay Terry and asked her if she had sent a letter to the editor, which is what he
thought at that point had been done. Terry responded that some of her friends might have sent
something, but she did not know what it was about.
¶14. McIlwain testified he had never given the letter to anyone other than his client. This letter was
simply copied to his client when it was written. McIlwain then went to the newspaper to talk to the
editor and stated, "I have been told that my client sent a letter or article up here, and I would like to
see if that is, in fact, true." He was shown the article. McIlwain testified he never authorized,
encouraged, or invited in any way the dissemination of the letter to third parties.

¶15. McIlwain stated that when he went to the newspaper, he was advised there was a 5:00 p.m.
deadline and if the article was not stopped by 5:00 p.m. on Friday, it would come out in the Sunday
paper. An employee at the newspaper told him Terry had not sent the article, but a friend of hers had,
and she thought Terry knew about it. According to his testimony, it was at this time that McIlwain
first learned Traci Evans had sent the article, although he still did not know who she was. The person
at the paper told McIlwain she had instructed Evans to inform Terry about the article.

¶16. McIlwain returned to his office around 4:00 p.m. in order to conduct research to determine if
the paper could run the advertisement. His research indicated that the newspaper could basically print
what they wanted and could contract with whomever they pleased. Their only real obligation was to
tell the truth. Based on this research, McIlwain did not feel he had any authority to demand the
newspaper breach a contractual obligation which they had with a third party and with whom he had
no contact, and no relationship. At some point that afternoon, McIlwain went to the Dyer law firm
and had a three-way conversation between himself, Gaines Dyer, and Frank Carlton. During that
conversation, he was asked what he was going to do about the article.

¶17. McIlwain wrote a letter to the editor of the newspaper emphasizing that his client had nothing to
do with the ad. He testified that he also attempted to call Traci Evans, the lady who sent the ad, but
was unable to reach her. McIlwain stated he did not feel he was in a position or had any authority to
do anything about the contract or agreement between a third party (Evans) and the newspaper. He
had determined the statement in Dyer's letter, alleging that his client had placed the ad, was not true,
and his brief research indicated he had no power or authority to tell the newspaper not to run the ad.

¶18. McIlwain's letter to the editor, Cazalas, went out after the 5:00 p.m. deadline on Friday. Cazalas
received the letter on Monday, and another letter was hand delivered on Monday requesting that he
publish no further articles. This letter was disregarded, and the paper continued to publish the ad.
Cazalas testified that McIlwain could not have stopped the ad, since he was not the person who
bought it.

¶19. On that Monday, McIlwain talked to Evans for the first time. It was at this point that McIlwain
learned from Evans that Terry had no involvement with the article and what her true intent was.
When McIlwain was asked on the witness stand if he could change things, would he have done
anything differently on that Friday afternoon, he responded he would possibly have asked for a
temporary restraining order, or an injunction, but he still was not sure of any legal basis for that.

¶20. Judge Bogen brought some of the criminal contempts himself alleging Terry and McIlwain either
caused the article to be printed or failed to stop it. Judge Bogen was aware that Traci Evans did not
have an attorney to represent her. Terry and McIlwain invoked the "rule." The court refused to allow
it to be invoked because some of the witnesses were from the news media.

¶21. Evans acknowledged that she delivered and paid for the ad. The court found her guilty of three
separate acts of contempt. Evans was ordered to spend 90 days in the county jail and to pay $1,000.
Terry was held in contempt because she distributed copies of the polygraph examination to some of
her friends and had been told by Evans that she was sending an article to the newspaper. The court
concluded that Terry must have known what was taking place. The court revoked her bond,
remanding her to the custody of the Washington County sheriff and additionally ordered that she
spend 90 days in jail and pay $1,000 for her participation in the publication of the advertisement.

¶22. McIlwain was found in contempt based on what it concluded were "sins of omission rather than
sins of commission" and his contempt was his failure to object to or attempt to stop the publication.
McIlwain was fined $1,000 and sentenced to serve 3 days in the county jail.

                                 DISCUSSION OF THE ISSUES

                           of Kay Terry and Willard L. McIlwain, Jr.

¶23. First, it should be noted that this was a constructive criminal contempt proceeding. Conduct
directed against the court's dignity and authority is criminal contempt. Lawson v. State, 573 So. 2d
684, 686 (Miss. 1990). It involves an act which brings the court into disrepute or disrespect. Purvis
v. Purvis, 657 So. 2d 794, 797 (Miss. 1994) ( citing Lawson, 573 So.2d at 686). "Constructive
contempt is an 'act calculated to impede or embarrass, obstruct, defeat, or corrupt administration of
courts of justice when the act is done beyond the presence of the court."' Lawson, 573 So. 2d at 686
(quoting Coleman v. State, 482 So. 2d 221, 222 (Miss. 1986)).

     I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING KAY
     TERRY IN CONTEMPT WHEN THERE WAS NO EVIDENCE OF ANY ACT ON
     HER PART WHICH LED TO THE SUBJECT ARTICLE BEING PUBLISHED.

¶24. [T]his Court proceeds ab initio to determine whether the record proves the appellant guilty of
contempt beyond a reasonable doubt." Purvis, 657 So. 2d; citing Lamar v. State, 607 So. 2d 129,
130 (Miss. 1992)). The burden of proof to establish that contempt has been committed is on the party
that is asserting that it has. In Interest of Holmes, 355 So. 2d 677, 679 (Miss. 1978). In a
proceeding for criminal contempt, evidence of guilt must be established beyond a reasonable doubt.
Id.

¶25. The State must prove that Terry acted in such a manner that was calculated to impede,
embarrass, obstruct, defeat or corrupt the administration of justice, when the act is done beyond the
presence of the court. Boydstun v. State, 259 So. 2d 707, 708 (Miss. 1972). In the proceeding below
there is no proof showing that Terry's actions "were calculated to have any real and substantial
tendency to impede the administration of the court". Id. at 709.

¶26. The only thing that was proven was that Terry gave copies of a polygraph examiner's report to
some of her friends and had some general knowledge that some friends were going to write letters to
the editor. The Prosecutor failed to show beyond a reasonable doubt that Terry actually had anything
to do with the advertisement being placed in the paper. The conclusions reached by the trial court
were based on suspicion and inferences from circumstantial evidence. These conclusions did not rise
to the level of "beyond a reasonable doubt." Therefore, the decision by the lower court is reversed
and rendered.
     II. THE TRIAL COURT WAS IN ERROR IN FINDING KAY TERRY'S ATTORNEY,
     WILLARD L. McILWAIN, JR., IN CONTEMPT WHEN THERE WAS NO ACT ON
     HIS PART WHICH LED TO THE SUBJECT ARTICLE BEING PUBLISHED AND HE
     WAS UNDER NO OBLIGATION TO STOP THE ARTICLE BEING PRINTED BY A
     THIRD-PARTY OVER WHOM HE HAD NO CONTROL.

¶27. The discussion above sufficiently details the burden of proof and on whom such burden is placed
when proving constructive criminal contempt.

¶28. There is an implication for a requirement of intentional defiance of the court or a willful act on
the part of the contemnor. Prestwood v. Hambrick, 308 So. 2d 82, 84 (Miss. 1975) (emphasis
added). McIlwain was not willful in allowing the advertisement to be published. Judge Bogen in the
contempt proceeding called the act by McIlwain to be "sins of omission, rather than sins of
commission."

¶29. However, McIlwain conducted research to see what, if anything, could be done to stop the
article from running. The deadline was 5:00 p.m., and McIlwain only found out about the
advertisement around 3:00-3:30 p.m. Needless to say, he was pressed for time and unable to conduct
thorough and extensive research.

¶30. His research was confined mainly to a legal encyclopedia, Corpus Juris Secundum. There he
found "authority" that stated,

     A newspaper is free to publish such matter as it regards as possessing news value. . .and may
     publish whatever advertisements it desires. . .while a newspaper is under the moral obligation to
     publish nothing that is not true. . .publishers are free to contract and deal or refuse to contract
     and deal regarding advertising with whom they please. . .

66 C.J.S. Newspapers, § 21, p. 47.

¶31. McIlwain claims on appeal that in his opinion he did not have the authority to interfere with the
newspaper's contractual arrangement with a third party with whom he had no connection. The
newspaper took this same position when the editor told McIlwain that only the person who bought
the ad, Evans, could stop it from running.

¶32. This Court holds that McIlwain did not act in willful defiance of the court or of justice. His
actions suggest and imply good faith on his part. He did not "release nor authorize for release"(1)the
polygraph examination or the letter he had written to the District Attorney. The fact that McIlwain
had given his client, Terry, a copy of the letter does not mean he was releasing it for dissemination(2),
rather it is just good practice for an attorney to keep his client informed.

¶33. The Court finds that proof presented by the State did not rise to the level of "beyond a
reasonable doubt." There was mere suspicion and innuendo on the part of the State and the trial
judge. For these reasons, this Court reverses and renders the decision of the lower court because
McIlwain's acts or failure to act did not rise to the level of impeding the administration of the court.

     III. THE TRIAL COURT WAS IN ERROR IN FAILING TO ALLOW THE "RULE"
     TO BE INVOKED.
¶34. Terry and McIlwain claim that the trial court was in error by failing to invoke the "Rule",
meaning Miss. R. Evid. 615. However, neither Terry nor McIlwain identified any prejudice flowing
from the court's ruling. This Court has addressed this issue by holding when a violation of the
sequestration rule is assigned as error on appeal, the failure of the judge to order a mistrial or to
exclude testimony will not justify a reversal on appeal absent a showing of prejudice sufficient to
constitute an abuse of discretion. Gerrard v. State, 619 So. 2d 212, 217 (Miss. 1993). Because there
has been no prejudice identified by the appellants in the court's failure to invoke the "Rule", we find
this assignment of error without merit.

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

¶35. As stated earlier in the facts of this opinion, Judge Bogen issued the summons for Terry,
McIlwain, and Evans, for supposed actions that took place outside of his presence and outside of his
courtroom. The supposed actions took place prior to the June 1, 1994, hearing on contempt.
Therefore, this cause was certainly constructive contempt.

¶36. Terry and McIlwain argue on appeal that because Judge Bogen was monumental in the
contempt charges being brought against them, he should not have been the judge to hear the
proceedings. The appellants state that Judge Bogen committed reversible error by not recusing
himself and letting another judge preside over this matter. We agree.

¶37. This Court has held that direct contempt may be handled by the sitting judge instantly. Purvis,
657 So. 2d at 798. Judge Bogen waited until June 1, 1994, to bring the contempt proceedings against
Terry and McIlwain. The actions that gave rise to the contempt charge occurred earlier than the
publication of the advertisement in the newspaper, but at the very latest, when the newspaper was
published on May 22, May 23, and May 24, 1994. Further, Judge Bogen made his decision based on
acts that took place outside of his presence. It is necessary for the individual to be tried by another
judge in cases of constructive contempt where the trial judge has substantial personal involvement in
the prosecution. Id.; (citing Varvaris v. State, 512 So. 2d 886, 888 (Miss. 1987). In re Murchison,
349 U.S. 133 (1955), was a case where a judge acted under state law as a one-man grand jury and
later tried witnesses for contempt who refused to answer questions propounded by the "judge-grand
jury." The United States Supreme Court held that since the judge who sat as a one-man grand jury
was part of the accusatory process he "cannot be, in the very nature of things, wholly
disinterested in the conviction or acquittal of those accused." Id., at 137 (emphasis added). "Fair
trials are too important a part of our free society to let prosecuting judges be trial judges of the
charges they prefer." Id.

¶38. Because Judge Bogen was instrumental in the initiation of the constructive contempt
proceedings, this Court holds that he should not have heard the contempt proceedings. He should
have turned over those proceedings to another judge. There can be no arguments by the State that
the charges had to be heard immediately because (1) Judge Bogen did not hear the charges until June
1, 1994; and (2) the underlying trial on the merits of Terry's embezzlement trial had been continued
"until a future date."
                                   ASSIGNMENTS OF ERROR

                                            of Traci Evans


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

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

¶39. This Court holds that Traci Evans was improperly charged with contempt as she did not fall
under the authority of Uniform Circuit and County Court Rule 9.01. As such, Evans cannot be guilty
of a violation and the points of error raised above are moot.

¶40. Rule 9.01 concerning pretrial publicity reads in relevant part:

     Prior to conclusion of the trial, no defense attorney, prosecuting attorney, clerk, deputy
     clerk, law enforcement official or other officer of the court, may release or authorize release
     of any statement for dissemination by any means of public communication on any matter. . . .

URCCC 9.01(emphasis added).

¶41. Evans did not fall under the class of people designated in Rule 9.01 because she had no
connection with the proceedings save her friendship with the defendant. In the present case, the trial
court erroneously charged Evans with contempt because she was not involved in any aspect of the
matter before the court.

     III. THE TRIAL COURT WAS IN ERROR IN A CONSTRUCTIVE CONTEMPT
     HEARING BY VIOLATING APPELLANT'S RIGHT TO COUNSEL.

¶42. Although this issue is also rendered moot by the application of Rule 9.01, it merits discussion in
order to provide future instruction to the trial courts.

¶43. At the beginning of the contempt proceeding, Judge Bogen inquired as to whether Terry and
McIlwain were represented by counsel. McIlwain responded that both were represented by
Kilpatrick. Judge Bogen then inquired as to whether Traci Evans was represented by counsel.

     THE COURT: Is your name Traci Evans?

     MS. EVANS: Yes, sir, it is.

     THE COURT: Do you have a lawyer?

     MS. EVANS: No, I do not.
     THE COURT: All right. State ready to proceed?

¶44. Judge Bogen proceeded with the contempt proceedings with full knowledge that Evans did not
have an attorney and that the possible sentence to be imposed would be incarceration in the county
jail. This was a blatant disregard for Evans' Sixth Amendment right to counsel, which has been
enumerated to the States by way of the Fourteenth Amendment. Argersinger v. Hamlin, 407 U.S.
25, 27 (1972).

¶45. The State erroneously responds to Evans' assignment of error by misreading her argument and
Argersinger to address the government's duty to provide counsel to an indigent defendant. Id. at 26-
37. Evans is not contending on appeal she should have had counsel appointed for her. Judge Bogen
at no time advised her that she had a legal right to seek the advice and be represented by legal
counsel, or that her punishment might include incarceration.

¶46. In Powell v. Alabama, 287 U.S. 45, 68-69 (1932), the United States Supreme Court said:

     The right to be heard would be, in many cases, of little avail if it did not comprehend the right
     to be heard by counsel. Even the intelligent and educated layman has small and sometimes
     no skill in the science of law. If charged with crime, he is incapable generally, of determining
     for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.
     Left without the aid of counsel he may be put on trial without a proper charge, and convicted
     upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He
     lacks both the skill and knowledge adequately to prepare his defense, even though he have a
     perfect one. He requires the guiding hand of counsel at every step in the proceedings against
     him. Without it, though he be not guilty, he faces the danger of conviction because he does not
     know how to establish his innocence. If that be true of men of intelligence, how much more
     true is it of the ignorant and illiterate, or those of feeble intellect.

(emphasis added).

¶47. Here the Court spoke in terms of all persons having a right to counsel, those who were educated
and intelligent, as well as those who were ignorant and illiterate. Nothing is mentioned about the
"right to counsel" being conditioned on economic status as the State argues. Again, Evans does not
argue that she should have had counsel provided for her, but that she be informed of the charges and
of her right to consult with an attorney.

¶48. The holding and rationale in Powell has relevance to any criminal trial, where an accused is
deprived of her liberty. Argersinger, 407 U.S. at 32. One charged with an offense against the criminal
laws of a state has a right to effective assistance of counsel in making his or her defense as secured by
the Sixth and Fourteenth Amendments to the Constitution of the United States. Read v. State, 430
So. 2d 832, 837 (Miss. 1983) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "The right to
counsel guaranteed by the Sixth Amendment is a fundamental right." Vielee v. State, 653 So. 2d 920,
922 (Miss. 1995) (citing Argersinger, 407 U.S. at 25.

¶49. Fundamental rights are guaranteed to all persons, without regard of race, color, creed, religion
or socio/economic status because of the Equal Protection Clause of the Fourteenth Amendment to
the Constitution of the United States. The State responds by claiming the court's statement, "Do you
have a lawyer?" should have been taken by any reasonably intelligent person to mean that she was
entitled to counsel if she desired representation. This argument is without merit and shows a blatant
disregard for the United States Constitution and over 60 years of interpretations of that sacred
document by the United States Supreme Court and this Court. To say that a reasonably intelligent
person would know they needed a lawyer goes completely against the decision of the United States
Supreme Court. Powell, 287 U.S. at 68-69.

¶50. Judge Bogen should have informed Evans of her right to seek the advice of an attorney before
proceeding with the contempt proceeding. The right to effective assistance of counsel, like any other
constitutional right, may be waived. Read, 430 So. 2d at 838 (citing Matthews v. State, 394 So. 2d
304, 309 (Miss. 1981)). "But before there can be a waiver, the defendant must be given a meaningful
and realistic opportunity to assert the right." Id. "If he is given that opportunity and he intelligently
and voluntarily declines to assert the right, it is then waived. Id. The record is void of any explanation
by the trial judge to Evans as to the ramifications of the charges against her and the possible sentence
to be imposed if she were found guilty of the constructive contempt charges. Therefore, Evans was
deprived of her opportunity to assert her right to counsel and could not make an intelligent and
voluntary waiver of that right.

¶51. Although this issue is moot, the right to counsel is a fundamental right. The trial courts should
exercise due diligence to ensure that all parties are informed of this right before a proceeding
continues.

                                            CONCLUSION

¶52. The contempt proceedings against Terry, McIlwain, and Evans should not have been heard by
Judge Bogen because he was instrumental in bringing the constructive contempt charges against the
three, and because of the discussion of his need to recuse himself. The failure of Judge Bogen to
"invoke the rule" was not reversible error because the appellants did not show how they were
prejudiced by his failing to do so. Evans was improperly charged with contempt because she did not
fall under the contempt power of the court as a detached third party. Additionally, Evans was denied
her right to counsel because Judge Bogen proceeded without informing her of her right to seek the
advice of an attorney and the ramifications if she did not seek one.

¶53. REVERSED AND RENDERED AS TO ALL APPELLANTS.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, MILLS AND
WALLER, JJ., CONCUR.




1. McIlwain was being held in contempt for violation of Rule 4.01 of the Uniform Criminal Rules of
Circuit Court Practice, which provides:

     The defense counsel, prosecuting attorneys, law enforcement officials, clerks, deputy clerks,
     and other officers of the court, shall not release nor authorize release of any statement for
     dissemination by any means of public communication any matter concerning:
                                                ***


     (3) The performance on any examinations or tests, or the defendant's refusal or failure to
     submit to an examination or test;

                                                ***


     (6) The defendant's guilt or innocence, or other matters relating to the merits of the case, or
     the evidence in the case.

(emphasis added).

2. See the above footnote; McIlwain was not disseminating the letter by a means of public release by
giving a copy to his client. Evans testified that she took the letter without Terry's knowledge.
