State of Tennessee v. James Beeler

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 15, 2011 Session

STATE OF TENNESSEE v. JAMES BEELER

Direct Appeal from the Criminal Court for Washington County

No. 35635 Lynn W. Brown, Judge

No. E2010-00860-CCA-R3-CD - Filed October 26, 2011

Defendant, James Beeler, an attorney, was cited for contempt of court in the Washington

County Criminal Court because, during a court proceeding, he communicated with his

client’s co-defendant who was represented by other counsel. Following a hearing, the trial

court found Defendant in contempt of court and imposed a fine and a sentence of ten days

in jail. At a subsequent hearing, the trial court suspended Defendant’s sentence. Defendant

now appeals his conviction and asserts that the evidence was insufficient to support his

conviction for contempt of court. He specifically argues that it was error for the trial court

to enforce Tennessee Supreme Court Rule 8 or to charge Defendant with criminal contempt

for a violation of Supreme Court Rule 8. After a careful review of the record, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which R OBERT W.

W EDEMEYER, J., joined. D AVID H. W ELLES, S P.J., not participating.

Larry R. Dillow and Katherine L. Tranum, Kingsport, Tennessee, for the appellant, James

Beeler.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; Anthony Wade Clark, District Attorney General; and Janet Hardin, Assistant

District Attorney General, for the appellee, the State of Tennessee.

OPINION

Facts

Defendant, James Beeler, an attorney licensed to practice in Tennessee, represented

Christina Thomas in a criminal proceeding in the Washington County Criminal Court. Her

husband, James Thomas, was a co-defendant in that case. Mr. Thomas was represented by

attorney Todd Ross. During a suppression hearing on November 4, 2009, while attorney

Ross was cross-examining a State’s witness, the following transpired:

CROSS EXAMINATION BY MR. TODD ROSS:

[MR. ROSS]: And – and it’s your testimony that when – when they

came out of the house and got in the car the first thing

they did was get this needle out and – and stick it in

their arms?

[WITNESS]: No. They wiped their hands off.

[MR. ROSS]: Okay. They wiped their hands off first and then did

this?

[WITNESS]: Yes.

THE COURT: Could you tell what they were wiping off their hands?

[WITNESS]: Uhm – it – it – it was – I think it was blood. I couldn’t

tell.

[MR. ROSS]: And when you said, they, did – did you actually see

both of them wiping things off their hands?

[WITNESS]: Yes.

[MR. ROSS]: And what were they using to wipe it off with?

[WITNESS]: Like baby wipes or something.

[MR. ROSS]: Okay. And . . .

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MR. BEELER: (Whispering – indiscernible).

[MR. ROSS]: . . . how long – how long did you guys set in the

driveway after they came and got in the car?

THE COURT: Mr. Beeler, it appears to the court that you are talking

to Mr. Ross’ client, and I don’t think you are allowed

to do that without his permission, and you’re doing it

behind his back. Have you given Mr. Beeler

permission to talk to your client?

MR. ROSS: No. No, Your Honor.

THE COURT: That appears to be a violation of your cod - - the Code

of Ethical Conduct, Mr. Beeler.

MR. BEELER: I didn’t get any response from him, Your Honor.

THE COURT: Well, why are you talking to him if you don’t want a

response?

MR. BEELER: Err[or] of judgment, Your Honor.

THE COURT: The court reporter will type up this portion of the tape

and I shall report you to the Board of Professional

Responsibility. I expect better conduct than this from

a member of the Bar in this district, of course, you’re

from another district. If you come into this district I

expect you to be honest, above board and follow the

rules. Do you understand me?

MR. BEELER: Yes, sir.

THE COURT: Proceed.

At the conclusion of the hearing, the following transpired:

THE COURT: Well, I need to make inquiry about something that

happened about an hour ago. Mr. Thomas, stand and

raise your right hand, please.

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JAMES STEVEN THOMAS having been duly sworn by the court was

examined by the court and testified as follows:

THE COURT: Be seated where you are. State your full name, please.

MR. THOMAS: James Steven Thomas.

THE COURT: How old are you?

MR. THOMAS: Thirty-four (34).

THE COURT: And you are one of the two charged defendants in this

case?

MR. THOMAS: Yes.

THE COURT: You are represented by Mr. Ross?

MR. THOMAS: Yes, sir.

THE COURT: When Mr. Ross was questioning the [State’s] witness,

[ ], Mr. Beeler spoke to you for a period of time, is

that correct?

MR. THOMAS: He was talking, yes, sir.

THE COURT: What was he telling you, or asking you?

MR. THOMAS: He was asking me a question, Your Honor.

THE COURT: What was the question that he asked you?

MR. THOMAS: He asked me did I go to the store during that time?

THE COURT: And Mr. Ross has already said that was without

permission of counsel. Very well. I need to get the

court clerk before I make findings regarding this. So,

let’s take a really short recess. I’ve taken more

recesses, and it takes me - - it’s a hike to get back to

my office now. So, court is in recess. Although,

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before I recess - - before I recess, I will say to Mr.

Thomas, thank you, sir.

MR. THOMAS: Yes, sir.

Following a recess and the trial court’s ruling on the motion to suppress in the case

involving Mr. and Mrs. Thomas, the trial court cited Defendant for criminal contempt, stating

as follows:

THE COURT: The other matter is rather more unpleasant. Mr.

Beeler, the court is going to cite you with contempt of

court. What you did in this court’s presence is

something that I have never seen in my entire practice

of law since 1977. Mr. Ross was at the lectern

examining a witness and you leaned over and talked to

his client. Our Rules of Professional Responsibility

provide, Rule 4.2 of Rule 8, of the Tennessee

Supreme Court says, I quote, “in representing a client

a lawyer shall not communicate about the subject of

the representation with a person the lawyer knows to

be represented by another lawyer in the matter, unless

the lawyer has consent of the other lawyer, or is

authorized by law.” Mr. Ross has said he had given

no permission for you to talk to Mr. Thomas.

Therefore, the court cites you for contempt of court

for two things, or two provisions, Tennessee Code

Annotated [§] 29-9-102. You are cited for contempt

of court for willful misbehavior in the presence of the

court so as to obstruct the administration of justice.

We cannot have lawyers going behind another

lawyer’s back and talking to the client. The court’s

been astounded with what I saw. Also, second reason

for citing under the same statute, [p]art [(2)], willful

misbehavior of an officer of the court in an official

transaction. You’re here representing Ms. Thomas,

and you have no right to speak to Mr. Thomas.

Therefore, you are cited with contempt of court. The

clerk will prepare a minute entry of that citation. It is

clearly in the record. You’re in the hands of the

sheriff. Bond is set at ten thousand dollars. And, of

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course, the irony is that Ms. Thomas’ previous

attorney in this case, Mr. Pratt, got the same treatment

for – although, perhaps, a slightly more egregious

violation. The court would suggest that you retain

counsel. Contempt hearing will be set for December

the 18th . Make a bond in the amount of ten thousand

dollars ($10,000.00); be back here on December the

18th . And General, you may wish to line up a District

Attorney General, Pro Tem, under the circumstance to

have a District Attorney from outside the district to

come in, unless, Mr. Beeler intends to plead guilty.

GENERAL HARDIN: Yes, sir.

THE COURT: So . . .

MR. BEELER: Your Honor, my intentions are to state that I did make

that comment. It was (indiscernible). . . .

THE COURT: I’m not having a hearing today. I’m setting it for

hearing for you to show cause why you should not be

found in contempt of court. Sheriff, take him to jail.

Defendant filed a motion to dismiss, which the trial court denied. At the contempt

hearing, at which Defendant was represented by counsel, Defendant testified, “[t]o my

absolute knowledge and still to my knowledge I had full complete permission to talk to

[attorney Ross’s] client about anything.” When asked about attorney Ross’s response to the

court that he had not given Defendant permission to speak with his client, Defendant

testified,

Your Honor, I think Mr. Ross was caught by surprise and he meant as to

that particular question he hadn’t at that second given me permission. I do

not think he in any way meaning as an all encompassing statement of no

because of everything that had transpired prior to that time.

Defendant explained that he, attorney Ross, and their respective clients had been

discussing “openly” the case on the day of the suppression hearing and that Defendant even

had discussions with attorney Ross’s client outside of attorney Ross’s presence with attorney

Ross’s knowledge and consent. Defendant testified,

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We had talked about everything about this case with no restrictions, no

reservations of any kind or nature. . . . So, Mr. Ross by his conduct had

given me complete permission to talk with his client, and I had given him

complete permission to talk with my client which he did do.

Defendant testified that he and attorney Ross had also met prior to the hearing, and

in that meeting, the two attorneys had “discussed that the defenses were the same, that

everything was the same, that the act of one was the act of the other.” Defendant further

testified,

We decided what witnesses we were hoping to call. We’d talked about

dividing cross examination of witnesses and argument of motions. We

agreed that we would work together fully and cooperatively, and we never

put any restrictions on this except that we would not call the other person’s

client and have them come to our office, that was the thing we agreed on.

We agreed that we would not initiate discussions unless both of us were

there, or both of us were aware of it, and that’s how the thing happened.

Defendant further testified:

[A]s a matter of fact, Mr. Ross’ client had tried to call my office on several

occasions, and I refused the call and referred him to Mr. Ross. He also did

that on occasion or two when he was represented by Mr. Chrichton, [his]

prior attorney. I also turned him away and sent him to Mr. Chrichton. They

– he came to my office one day with his wife. I told him I couldn’t talk to

him. I told him that I absolutely could not. I sent them both away. And the

bottom line, his wife’s explanation was they didn’t know there was anything

wrong with that ‘cause Mr. Spurrell and Mr. Chrichton talked to them

interchangeably whenever. But, I have not talked with them alone at any

point in time. I did not talk to him that day without the permission of Mr.

Ross.

Attorney Ross testified that he and Defendant had met “on occasion” and had

discussed trial strategy and common defenses. He testified that on the day of the suppression

hearing, he and Defendant and their clients had spoken freely at the courthouse for “several”

hours. Attorney Ross testified that when he left the courthouse for lunch that day, he did not

“leave any specific instructions either way” regarding whether Defendant had his permission

to speak with his client. Attorney Ross testified,

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From what I understand from my client, the question that was asked of him

was something that we had already been discussing that day, and it was just

an affirmation that - - of something that had already been talked about, and

that’s all he was asked. So, I mean, if [Defendant] had asked me is it okay

to ask him that question, I certainly wouldn’t have minded because we had

already - - we had already talked about that so . . .

When asked by the court whether he had given Defendant permission to talk to his

client during the suppression hearing, attorney Ross testified, “I never specifically told him

he had permission to talk to my client. I mean, it just - - it was never asked. We never talked

about that. That never came up, so specifically, no, I guess not.”

At the conclusion of the hearing, the trial court made the following findings of fact

and conclusions of law:

The court has had an opportunity at the original proceeding on November

the 4th to judge Mr. Ross’ credibility, again today, and also [Defendant]’s

credibility, and they are in conflict. The court finds that Mr. Ross is

credible, . . . . Mr. Ross indicated very emphatically, no, that he had not

given [Defendant] permission to talk to his client . . . . And then

[Defendant], which didn’t help his credibility, the court asked, “Well, why

are you talking to him if you don’t want a response?” in that colloquy. And

[Defendant]’s response is, “Error of judgment.” And he would have been

better served to have admitted and apologized, which he never did. And

we’ve gone through the issues of whether or not this court is enforcing the

rules of the Board of Professional Responsibility, particularly, “A lawyer

shall not communicate about subject at representation with a person a

lawyer knows to be represented by another lawyer unless the lawyer has the

consent of the other lawyer or it is authorized by law.” And Mr. Ross

doesn’t back away from what he said before. He says he can understand,

it’s something that they’d talked about in the past, but that [Defendant] did

not have permission. And the problem with this is under the circumstances

with Mr. Ross cross-examining a key witness, the issue is whether this is

willful misbehavior in the presence of the court so as to obstruct the

administration of justice or willful misbehavior of an officer of the court,

which [Defendant] as an attorney is, in an official transaction. And the

problem is that with Mr. Ross standing there at the lectern cross-examining

a witness, he can’t be watching his client. And the court is of the opinion

that what [Defendant] did was just completely extraordinary, to turn without

permission to another lawyer’s client and start asking questions about the

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case. And just because they may have talked about it before, in the scheme

of things doesn’t change that. And . . . [Defendant] contradicts himself on

page three (3) of that transcript. Question: “And was it your understanding

with regards to your ability to communicate with Mr. Ross’s client?” And

by [Defendant], “To my absolute knowledge and still to my knowledge I

had full, complete permission to talk to his client about anything,” which

conflicts of course with what Mr. Ross said back in November and what he

said today. And . . ., we were talking about Mr. Ross’ answer that, no he

did not have permission, and so I asked [Defendant], “So Mr. Ross is not

telling the truth to the court?” [a]nd [Defendant]’s answer . . ., “Your

Honor, I think Mr. Ross was caught by surprise. He meant to give that

particular question he hadn’t at that second given me permission.” So

[Defendant] admits that he had no permission to talk to [attorney Ross’s

client]. And again . . . this is [Defendant]’s testimony, “We agreed that we

would not initiate discussions unless both of us were there or both of us

were aware of it, and that’s how the thing happened.” So he admits again

he talked to [attorney Ross’s client] without permission, and as such it

disrupts court proceedings. In [Defendant]’s testimony, he sort of hems and

haws and says that, well, he had - - doesn’t come around and say it this way.

I’ve got that in my notes. He gave permission by his conduct was

[Defendant]’s testimony, and that just doesn’t cut it. It just doesn’t cut it.

So the court concludes that the proof is there beyond a reasonable doubt

discrediting [Defendant]’s testimony, that [Defendant] engaged in willful

misbehavior in the presence of the court so as to obstruct that administration

of justice. This court should not have to stop a suppression hearing or a

trial because an attorney standing before the court at the lectern has his

client questioned by another lawyer behind his back, literally and exactly as

it happened. And that also [Defendant] engaged in violation of the

contempt statute, willful misbehavior as an officer of the court in an official

transaction. We were having a suppression hearing, and he went outside the

bounds.

The trial court imposed a fifty dollar fine and sentenced Defendant to ten days in jail,

which the trial court later suspended.

Analysis

On appeal, Defendant challenges the sufficiency of the evidence. Defendant’s

arguments can be summarized as follows: 1) Defendant argues that an attorney’s violation

of Rule 4.2 of Tennessee Supreme Court Rule 8 cannot be the basis for a criminal contempt

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petition in a trial court; 2) Defendant further asserts that, even if an attorney’s violation of

Rule 4.2 can be the basis of a criminal contempt conviction in the trial court, the evidence

in this case is insufficient to sustain Defendant’s conviction; and 3) in light of the “joint

defense privilege,” he cannot be convicted of criminal contempt in this case. Finally,

Defendant also raises, for the first time on appeal, the issue of judicial recusal.

It is unclear from the record which subsection of the statute of which Defendant was

found guilty. The trial judge stated that he was citing Defendant for two violations of the

same statute, Tenn. Code Ann. § 29-9-102(1) and (2). The statute provides:

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;

Tenn. Code Ann. § 29-9-102.

The technical record contains only one judgment, which does not specify which

subsection of § 29-9-102 of which Defendant was found guilty. It appears from the record,

though, that the trial court relied primarily on the first statutory ground for contempt.

An Attorney’s Violation of Rule 4.2 of Tenn. Sup. Ct. R. 8 as a Basis for Criminal Contempt

The conduct for which Defendant was ultimately convicted of criminal contempt was

Defendant’s action in speaking in a whisper to Mr. James Thomas in court during a

suppression hearing while Mr. Thomas’ attorney, Mr. Ross, was cross-examining a witness.

Defendant was not charged with, or found to be in, contempt for merely talking during the

proceedings, and he was not charged with, or found to be in, contempt for talking too loudly.

Furthermore, Defendant’s conduct was not contemptuous for what was said, but rather to

whom the words were spoken. In other words, if Defendant had spoken in the same manner

to counsel for the co-defendant, the conduct would not have been contemptuous under the

notice provided by the court. Likewise, if Ms. Thomas had whispered to Mr. Thomas in the

same manner as Defendant whispered to Mr. Thomas, that conduct, under the trial court’s

notice of contempt, would not be criminal contempt based upon the record in this case.

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Defendant was not charged with contempt for cursing, yelling, throwing objects, or

disrupting court proceedings in such other direct methods.

Thus, absent the fact that Mr. Thomas was represented by another attorney (Mr. Ross),

Defendant’s brief communication in court with Mr. Thomas while Mr. Ross was cross-

examining a witness could not be the basis for a criminal contempt conviction based upon

the record in this case. The case sub judice is therefore not a situation where the conduct of

a defendant, in and of itself, is contemptuous whether or not the conduct is also in violation

of the Rules of Professional conduct.

An example illustrative of this point is the conduct by an attorney which was the basis

for a criminal contempt conviction in State v. Randy George Rogers, No. E2007-02535-

COA-R3-CV, 2008 WL 4414699 (Tenn. Ct. App. at Knoxville, filed Sept. 29, 2008), no

perm. app. filed. In that case, the defendant, an attorney, was unhappy that the trial court did

not take up consideration of his client’s case prior to taking a brief recess. As the judge was

crossing the threshold from the courtroom to chambers, the defendant threw down his file,

uttered the “f” word, and “flipped a bird” at the judge. Undoubtedly, the same conduct by

an attorney’s non-lawyer client would also result in a criminal contempt conviction.

However, while the attorney defendant in Randy George Rogers could also be subject to

disciplinary action for a violation of the Rules of Professional Conduct for the same conduct,

his non-lawyer client obviously would not be subject to discipline under the Rules of

Professional Conduct.

The crucial question we must determine in order to resolve this argument by

Defendant is this: when the only factual basis for a criminal contempt conviction is a

violation by an attorney of Rule 4.2 of Supreme Court Rule 8, and the conduct would not

otherwise in and of itself be contemptuous, is the conduct sufficient evidence to support a

conviction for criminal contempt in a trial court?

Defendant relies upon Doe v. Board of Professional Responsibility, 104 S.W.3d 465

(Tenn. 2003), in support of his argument that the evidence does not support a conviction for

criminal contempt in the trial court because a violation of a Supreme Court Rule can be

contempt of only the Tennessee Supreme Court. Specifically, in Doe, the Supreme Court

noted,

Finally, we address the appropriate forum wherein an action for contempt

may be brought. At the outset, it is necessary to reiterate that “[w]e are not

fact finders and do not address the credibility of the testimony or weight of

the evidence.” State v. Flake, 88 S.W.3d 540, 553 (Tenn. 2002). This

responsibility rests with the trial courts of this State and the juries

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empowered thereunder. However, as the Court of Appeals stated in State

v. Gray, 46 S.W.3d 749, 750 (Tenn. Ct. App. 2000) (perm. app. denied

April 16, 2001), the general contempt statute does not “deal with the

question of whether a court may punish contempts of another court’s order.”

As a general rule, “the power to punish for contempt is reserved to the court

against which the contempt is committed, i.e. the court whose order is

disobeyed.” Gray, 46 S.W.3d at 750 (citing Chaffin v. Robinson, 187 Tenn.

125, 213 S.W.2d 32 (1948)). Thus, “[o]ne tribunal may not punish for

contempt of another.” Chaffin, 213 S.W.2d at 32. Additionally, a contempt

proceeding is sui generis and is considered incidental to the case out of

which it arises, and often stems from an underlying proceeding that is not

complete. See Bowdon v. Bowdon, 198 Tenn. 143, 278 S.W.2d 670, 672

(1955); Graham v. Williamson, 128 Tenn. 720, 164 S.W.2d 781, 782

(1914); Hall v. Hall, 772 S.W.2d 432, 435-36 (Tenn. Ct. App. 1989).

In light of the foregoing principles, we hold that the formal charge of

contempt against a person in violation of Rule 9, section 25 shall be filed

in this Court.

We do not interpret Doe to hold as Defendant asserts in his brief. The Court in Doe

based its ruling on Tenn. Code Ann. § 29-9-102(3). Defendant in the case sub judice was

charged with contempt pursuant to Tenn. Code Ann. § 29-9-102(1) and (2). Section 29-9-

102(3) involves contempt by willful disobedience of a lawful rule of a court. Doe, 104

S.W.3d at 473. Further, the Court in Doe recognized that the Supreme Court Rule in

question (confidentiality of allegations of attorney misconduct under certain situations) was

a rule where other provisions of the rule specifically stated that a violation of the

confidentiality rule was regarded as contempt of the Supreme Court. Id. Finally, the

Supreme Court Rule under consideration in Doe, Rule 9, section 25, was held to be a

standing order of the Supreme Court. Id. at 472.

As noted above, Defendant was charged with criminal contempt of court for violating

Tenn. Code Ann. § 29-9-102(1) and (2), and not section (3), which was the focus of the

holding in Doe. Since Defendant’s conduct occurred in the presence of the court during

court proceedings, in order to show criminal contempt, there had to be proof of “willful

misbehavior of any person in the presence of the court,” (Tenn. Code Ann. § 29-9-102(1))

or “willful misbehavior of any of the officers of such courts, in their official transactions.”

(Tenn. Code Ann. § 29-9-102(2)).

We hold that a violation of Rule 4.2 of Rule 8 of the Tennessee Supreme Court Rules

by an attorney can be willful misbehavior and can therefore be the basis for a conviction of

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criminal contempt. We further hold that an obstruction of the administration of justice must

be proven under Tenn. Code Ann. § 29-9-102(1) only when the willful misbehavior is not

directly in the presence of the court, but is “so near thereto as to obstruct the administration

of justice.”

Sufficiency of the Evidence to Prove Contemptuous Conduct

When a defendant attacks the sufficiency of the evidence in a criminal contempt

proceeding, we review the record “to determine if the proof adduced at trial supports the

findings of the trier of fact of guilt beyond a reasonable doubt.” Black v. Blount, 938 S.W.2d

at 399; Tenn. R. App. P. 13(e). We do not reweigh the proof offered at trial, rather, the

“defendant has the burden of illustrating to the Court why the evidence is insufficient to

support the verdict.” Black v. Blount, 938 S.W.2d at 399. A guilty verdict removes the

presumption of innocence and replaces it with a presumption of guilt, and we will not disturb

a verdict of guilt for lack of sufficient evidence unless the facts contained in the record and

any inferences which may be drawn therefrom are insufficient, as a matter of law, for a

rational trier of fact to find the defendant guilty beyond a reasonable doubt. Id. (citations

omitted).

We conclude that the evidence was sufficient in this case to support Defendant’s

criminal contempt conviction. The trial court specifically found that Defendant was not

credible and that attorney Ross was credible. The proof showed that Defendant willfully

violated Rule 4.2 of Tennessee Supreme Court Rule 8. Defendant is not entitled to relief on

this issue.

Joint Defense Privilege

Defendant contends that the “common interest privilege” or “joint defense privilege”

should excuse his conduct. The doctrine is recognized by both federal and Tennessee courts

and protects, as privileged, communications and information exchanged between parties and

attorneys who share a common legal interest. See Boyd v. Comdata Network, Inc., 88 S.W.3d

203, 214 (Tenn. Ct. App. 2002). However, the disclosure of privileged or confidential

communications is not at issue in this case. Rather, the issue is whether Defendant had

attorney Ross’s permission to speak to his client. The “joint defense privilege” assumes that

Rule 4.2 of Tennessee Supreme Court Rule 8 has been properly followed and not violated.

The doctrine relied upon by Defendant would protect against disclosure of information

exchanged between the parties and their attorneys in a joint defense. The doctrine is not

applicable to the facts of this case. Defendant is not entitled to relief on this issue.

Recusal

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Defendant also asserts, for the first time on appeal, that the trial judge should have

recused himself. Defendant made no objection at the show cause hearing, and allowed the

trial judge to preside over the hearing without any request that the trial judge recuse himself

from hearing the case. Defendant’s failure to request a recusal at the show cause hearing

results in waiver of this issue. See State v. Dominic Jude Amari, No. 01C01-9703-CR-

00077, 1998 WL 345345, *4 (Tenn. Crim. App. at Nashville, June 30, 1998), no perm. app.

filed. We note, however, that this was a “direct contempt” under Tenn. Code Ann. § 39-3-

102(1) that could have been summarily dealt with by the trial court. Nevertheless, the court

did not err by treating the matter as an indirect contempt and giving notice of the

contemptuous conduct through a show cause order. See State v. Maddux, 571 S.W.2d 819

(Tenn. 1978) (direct contempt is based upon acts committed in the presence of the court and

may be punished summarily; whereas, indirect contempt is based upon acts not committed

in the presence of the court and may be punished only after offender has been given notice

and a hearing). We caution, however, that in cases where the judge presides over the hearing

of a case that the judge initiated, recusal may be necessary. See Randy George Rogers, 2008

WL 4414699 at *1 (the trial judge entered a show cause order regarding the alleged criminal

contempt of the attorney, and a substitute judge was appointed to hear the case); but see

Black v. Blount, 938 S.W.2d 394, 401 (Tenn. 1996) (recusal was not necessary where

contempt charge did not “on its face, involve disrespect or criticism of the trial judge.”).

CONCLUSION

Based on the foregoing, we affirm Defendant’s conviction.

_________________________________

THOMAS T. WOODALL, JUDGE

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