         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 April 14, 2015 Session

                    STATE OF TENNESSEE v.
          CHRISTOPHER ANDERSON (IN RE: DAVID W. CAMP)

                 Appeal from the Circuit Court for Madison County
                     No. 14174     Roy B. Morgan, Jr., Judge


             No. W2014-02219-CCA-R3-CD - Filed September 9, 2015
                        _____________________________

Appellant, David W. Camp, appeals from the Madison County Circuit Court’s finding of
criminal contempt for his failure to appear at a scheduled court appearance for Mr.
Camp’s client, Christopher Anderson, the defendant in this case. The trial court
summarily convicted Appellant under Tennessee Rule of Criminal Procedure 42(a),
finding that Appellant was in direct contempt of court and that Appellant’s conduct was
in the presence of the court. The trial court relied upon text messages received from
Appellant explaining his whereabouts at the time of the scheduled court appearance. We
conclude that the trial court’s finding that Appellant’s conduct was in the presence of the
court is error, and therefore, we remand this case for a hearing in accordance with
Tennessee Rule of Criminal Procedure 42(b).

                      Tenn. R. App. P. 3 Appeal as of Right;
               Judgment of the Circuit Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR. and NORMA MCGEE OGLE, JJ., joined.

David W. Camp, Jackson, Tennessee, for the Appellant, David Wayne Camp.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel,
James G. (Jerry) Woodall, District Attorney General; and Rolf Hazlehurst, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                       OPINION

Facts

       Appellant, David Camp, was retained to represent Defendant on charges of
possession of marijuana with intent to sell, possession of drug paraphernalia, and public
intoxication. The record shows that on September 15, 2014, the parties appeared in the
Madison County Circuit Court, before Judge Roy B. Morgan, Jr. A subsequent court date
was scheduled, and the following exchange occurred:

              THE COURT: We need to set this for a future date and let
        counsel for State and defense look at it and determine what you wish to
        do next.

             And you’re going to be here, General, any of these dates, so I’m
        going to let Mr. Camp choose what’s best with his schedule.

               ....

               Mr. Camp, I’ll throw these dates out at you and you decide. I’ve
        got October 6th, I’ve got October 14th. The 14th is a Tuesday. That’s
        the day after Columbus Day. Then we’ve got October 24th at 8:00.

        Mr. Camp checked his calendar and announced that “October 14th would work
better for [him].”

       On October 14, 2014, when the trial court called Defendant’s case, Defendant
answered that Mr. Camp had not arrived. The trial court stated, “[o]kay, we’ll give him a
few minutes.” The court proceeded with other matters on the docket and then called
Defendant’s case again, but neither Defendant nor Mr. Camp were present in the
courtroom. The record reflects that Defendant had left the courtroom to attempt to reach
Mr. Camp by phone. The court again proceeded with other matters on the docket. This
happened again, and the fourth time the case was called, the court clerk informed the
court that the clerk’s office had received a message from Mr. Camp that he was “in route
from another county.” The clerk stated that she received the message “at least an hour
ago.” The assistant district attorney informed the court that he had received a text
message from Mr. Camp stating that he had gone to court in Crockett County first.
Defendant told the court that Mr. Camp had sent him a copy of the plea offer and
discussed it with him.


                                           2
        After a break, the trial court announced that it was finding Mr. Camp in contempt
of court for his failure to appear at a scheduled court date. The court noted that court
commenced at 8:00 a.m., and at 11:05 a.m., Mr. Camp had not arrived. The court read
aloud text messages received from Mr. Camp, in which Mr. Camp acknowledged that he
was aware court began at 8:00 a.m., and he chose to go to Crockett County for a 9:00
a.m. court appearance. In his text messages, Mr. Camp stated, “[i]t would keep me from
having to travel back and forth to Alamo.” He further explained, “I attempted to make a
decision based on my calendar, with no disrespect intended to this Court. My office did
call to advise Your Honor that I would be late. I did not anticipate being drawn into a
contested hearing in Alamo. I apologize for the inconvenience to the Court.” The court
stated as follows:

               The Court finds that contempt of court is being considered in this
        matter. And contempt of court is any act that tends to hinder or delay the
        administration of justice.

               In this particular case this action has occurred in the presence of
        the Court. I note that a criminal contempt occurs when an act of
        misconduct is directed against the dignity and authority of the Court. In
        this particular case, Mr. Camp was given notice of the hearing date
        today. He’s acknowledged that. He’s not been present, so the act
        occurred in the Court’s presence because of his failure to appear.

               ....

               This is a situation under Rule 42, Rules of Criminal Procedure,
        criminal contempt that a summary disposition can be made. The judge
        may summarily punish a person who commits contempt in the judge’s
        presence. If the judge certifies that he or she saw or heard the conduct
        constituting the contempt in this particular case, again, it’s in my
        presence because Mr. Camp failed to appear.

                And he - - still as of 11:05 today has not appeared. And has made
        it clear he chose to go to Crockett County for a 9:00 General Sessions
        hearing noting that we started at 8:00, and he was well aware of our 8:00
        time. And, in fact, the Court’s commonly known to accommodate
        counsel by coming in and starting before 8:00.

               So this is a criminal contempt matter. The Court finds Mr. Camp
        in criminal contempt for the reasons stated. No notice is necessary under
        these circumstances, and the Court can summarily under Rule 42 act
                                            3
        upon the matter. Summary means exactly that, no notice is necessary, no
        hearing is necessary under these circumstances.

        Subsequently, Mr. Camp arrived at court and was informed of the court’s action.
Mr. Camp confirmed that he chose to go to court in Crockett County for a scheduled
hearing at 9:00 a.m., and that he was aware that Defendant’s case was set for 8:00 a.m. in
Madison County. The trial court stated, “I’ve already made a finding of contempt on the
record.” Mr. Camp then requested that the court “allow [him] to at least on the record
make statements to the Court[.]” The court responded, “I stand by my ruling. And again,
I’ll enter the order, but you’re welcome to make statements.” Mr. Camp then briefly
explained the matter for which he was scheduled to appear at 9:00 a.m. in Crockett
County. The court interrupted,

               THE COURT: At 9:00.

               MR. CAMP: - - 9:00, yes, sir. It’s 9:00.

               THE COURT: Let - - I’m going to apologize to you, but this was
               the point where you were supposed to be here at 8:00.

               MR. CAMP: Yes, sir.

        In a written order, the trial court found that Mr. Camp did not “receive any
permission from the [trial court] to be excused from his 8:00 a.m. October 14, 2014,
appearance.” The trial court concluded “[t]hat the willful failure of defense counsel,
David Camp, to appear before the Court at 8:00 a.m. on October 14, 2014, is [d]irect
[c]ontempt of Court and subject to Tenn. R. Crim. P. 42(a) Criminal Contempt, summary
disposition.” The court imposed a suspended sentence of 10 days in confinement and a
fine of $50.

Analysis

       On appeal, Mr. Camp argues that he “did not demonstrate willful misbehavior and
the actions did not occur in the presence of the court.” The State responds that the record
supports the trial court’s determination that Mr. Camp committed criminal contempt by
choosing to ignore his obligation to appear at a scheduled court date.

      The contempt statute, in relevant part, authorizes courts to punish “willful
misbehavior” pursuant to the contempt power:


                                            4
        Scope of Power. The power of the several courts to issue attachments,
        and inflict punishments for contempts of court, shall not be construed to
        extend to any except the following cases:

        (1) The willful misbehavior of any person in the presence of the court, or
            so near thereto as to obstruct the administration of justice;

        (2) The willful misbehavior of any of the officers of such courts, in their
            official transactions;

        ....

T.C.A. § 29-9-102.

       Courts have recognized two species of contempt – civil and criminal. State ex rel.
Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974, 974 (1917). Civil contempt is
remedial in character and usually employed to compel obedience to a court order. See,
e.g., Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354
(Tenn. 2008). Criminal contempt, by contrast, is “punitive in character,” Thigpen v.
Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993), and is “intended to preserve the
power and vindicate the dignity and authority of the law, and the court as an organ of
society.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). We have cautioned that
criminal contempt charges should be used sparingly. Robinson v. Air Draulics
Engineering Co., 377 S.W.2d 908, 911-12 (Tenn. 1964) (“While the power to punish for
contempt may and should be used in an appropriate case, it should not be used unless the
case clearly calls for its exercise.”).

        Contempt can further be classified as “direct” or “indirect,” depending on whether
the misbehavior occurred in the court’s presence. Black, 938 S.W.2d at 398. This
classification is important in criminal contempt cases because Tennessee Rule of
Criminal Procedure 42 allows for a summary proceeding if the contemptuous conduct
occurs before the court; but if not, certain procedural protections must be observed,
including notice, a hearing, and recusal if the contempt charge involves disrespect to or
criticism of the judge. Tenn. R. Crim. P. 42. Specifically, Tennessee Rule of Criminal
Procedure 42 provides as follows:

        (a) Summary Disposition. – A judge may summarily punish a person
        who commits criminal contempt in the judge’s presence if the judge
        certifies that he or she saw or heard the conduct constituting the
        contempt. The contempt order shall recite the facts, be signed by the
        judge, and entered in the record.
                                            5
        (b) Disposition on Notice and Hearing. – A criminal contempt shall be
        initiated on notice, except as provided in subdivision (a) of this rule.

        (1) Content of Notice. – The criminal contempt notice shall:
             (A) state the time and place of the hearing;
             (B) allow the alleged contemner a reasonable time to prepare a
        defense; and
             (C) state the essential facts constituting the criminal contempt
        charged and describe it as such.

        (2) Form of Notice. – The judge shall give the notice orally in open court
        in the presence of the alleged contemner or by written order, including
        an arrest warrant if warranted. The notice and order may also issue on
        application of the district attorney general, an attorney appointed by the
        court for that purpose, or an attorney representing a party in the case.

        (3) Release on Bail. – The alleged contemner is entitled to admission to
        bail as provided in these rules.

        (4) Disqualification of Judge. – When the contempt charged involves
        disrespect to or criticism of a judge, that judge is disqualified from
        presiding at the hearing, except with the alleged contemner’s consent.

        (5) Punishment Order. – If the court finds the alleged contemner to be in
        contempt, the court shall enter an order setting the punishment.

       Tenn. R. Crim. P. 42. Courts must scrupulously adhere to these strictures because
“summary punishment departs, often dramatically, from traditional notions of due
process that are the hallmarks of criminal justice.” State v. Turner, 914 S.W.2d 951, 957
(Tenn. Crim. App. 1995).

       We conclude that the trial court erred when it proceeded summarily under Rule
42(a). The record is clear that the trial court premised its finding of contempt on Mr.
Camp’s failure to appear at the scheduled appearance time of 8:00 a.m. The court relied
upon text messages from Mr. Camp, in which Mr. Camp explained that he was aware of
the 8:00 a.m. appearance time, but that he chose to appear in another court at 9:00 a.m.
The State acknowledges that our appellate courts have held that a willful failure to appear
as directed is not subject to summary punishment as direct contempt. The State cites
Bailey v. Crum, 183 S.W.3d 383 (Tenn. Ct. App. 2005), in which the Court of Appeals
held that the trial court’s order holding the respondent in contempt for failure to appear
                                            6
violated due process and remanded the matter for a hearing pursuant to Rule 42(b). The
appellate court reasoned that while the trial court witnessed the respondent’s absence
from court, the trial court was not a witness to her willfulness. Also, in State v. Charles
B. Bryan, No. W1999-00620-CCA-R3-CD, 2000 WL 33288749 (Tenn. Crim. App., June
27, 2000), no perm. app. filed, a panel of this court reversed the trial court’s summary
finding of contempt for failing to appear for a scheduled court appearance, concluding
that the trial court erroneously denied the defendant a hearing.

        The State attempts to distinguish Bailey and Bryan, arguing that in those cases, the
trial courts “did not have direct knowledge of the contemnors’ reasons for failing to
appear” because the trial courts in those cases did not have the benefit of text messages
from the defendants. We disagree with the State’s reasoning.                     Electronic
communications, whether in the form of email, text messages, instant messaging, or
phone communications cannot be a substitute for a hearing as contemplated by Rule
42(b). Despite the text messages from Mr. Camp and Mr. Camp’s attempts to explain his
reasons for being late to the trial court, Mr. Camp’s conduct occurred outside the
presence of the court. Therefore, the trial court should have followed the procedure
outlined in Rule 42(b). Mr. Camp should have been provided notice, allowed a
reasonable time for preparation of his defense, and an opportunity to be heard.

       In conclusion, the trial court erred by denying a hearing as mandated by Tennessee
Rule of Criminal Procedure 42(b). Accordingly, the conviction for criminal contempt is
reversed, and this case is remanded for a hearing, after notice, on Appellant’s contempt
charge.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




                                             7
