In order to be convicted of indirect criminal contempt, the defendant must have notice and an opportunity to be heard

This past summer, the Tennessee Court of Criminal Appeals reversed a criminal contempt conviction because the trial court failed to provide the defendant with notice and an opportunity to be heard.  On July 12, 2016, the Wilson County Criminal Court issued an order for the defendant to appear at a show cause hearing on July 13, 2016.  When the defendant failed to appear, the court issued an attachment directing the Wilson County Sheriff to arrest the defendant and hold her without bond.  The sheriff subsequently arrested the defendant and a hearing was held the next day.

At the hearing, the defendant testified that she wasn’t served with anything and that she was on temporary medical leave ordered by her doctor.  However, upon questioning by the trial court, the defendant admitted that she aware that she was supposed to be in court.  Based on this admission, the trial court concluded that the defendant’s failure to appear constituted willful and deliberate contempt of court, reasoning that personal service was not necessary because the State investigator was assured by a third-party that the defendant was aware of the show cause order.

Before the court of criminal appeals, the defendant argued that the trial court violated her right to due process by finding her in contempt of court without providing her notice, an opportunity to be heard, and a proper hearing pursuant to Tennessee Rule of Criminal Procedure 42.  The attorney general’s office conceded the issue.

As the Tennessee Court of Criminal Appeals explained, there are two types of contempt – civil and criminal.  Civil contempt is remedial in nature and is used to force compliance with a court order or influence future behavior.  On the other hand, criminal contempt is punitive in nature and is used to punish past behavior.  Additionally, there are two categories of criminal contempt – direct and indirect.  Direct contempt is based upon acts committed in the presence of the court and may be punished summarily.  Indirect contempt occurs outside of the presence of the court and requires notice and an opportunity to be heard.  The criminal contempt notice shall (1) state the time and place of the hearing, (2) allow the alleged contemner a reasonable time to prepare a defense; and (3) state the essential facts constituting the criminal contempt charged and describe it as such.  Tennessee Rule of Criminal Procedure 42(b)(1)(A)-(C).

Here, the alleged contempt was not in front of the trial court, so due process required that the defendant be provided notice.  By failing to give the defendant proper notice and immediately issuing an attachment for her arrest, “the trial court disregarded the basic due process requirements of Rule 42(b).”  Accordingly, the Tennessee Court of Criminal Appeals reversed the defendant’s conviction and remanded the case back to the Wilson County Criminal Court for further proceedings.

State v. Houston, No. M2016-01649-CCA-R3-CD (Tenn. Crim. App. June 26, 2017)

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