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State v. Cowan9/24/2001
The defendant, Thomas E. Cowan, Jr., was found guilty of contempt. The trial court imposed a jail sentence of 10 days, six of which were suspended. In this appeal of right, the defendant argues that the evidence was insufficient; that the trial judge should not have acted as a witness; and that the sentence was excessive. Because the evidence was insufficient, the judgment is reversed and the cause dismissed.
Tenn. R. App. P. 3; Judgment of the Trial Court Reversed; Cause Dismissed
Gary R. Wade, P.J., delivered the opinion of the court, in which Thomas T. Woodall and Robert W. Wedemeyer, JJ., joined.
OPINION
On August 17, 2000, Sharon Nave, a probation officer, appeared before the trial judge charging Neil Friedman, who was represented by the defendant, a licensed attorney, with a violation of probation. Eight days later, just before a hearing to determine Friedman's release status, the trial judge provided a factual summary of the occurrence for the record:
Last Thursday Ms. Nave, the probation officer who's here, came to my office with a warrant for Violation of Probation. And the warrant alleges that - that's the second warrant. He has violated the law and has been arrested for Aggravated Assault, felony, in Sullivan County. And Ms. Nave gave me a strange message when she came with the warrant that, Mr. Cowan, you've been calling her and calling her and that you wanted me to call you before I issued the warrant. I've never seen a request like that, and - and I don't ask your permission or consider information before I issue warrants. Never have. Don't see any point to it. So I didn't call you, and issued the warrant. And within an hour, your secretary called the office and said you wanted to come over and talk to me. And I told Charlotte White, your secretary, that I did not want to talk to Mr. Cowan about the case, about Neil Friedman. And so she put you on the phone and you started telling me some information. And I asked you, Mr. Cowan, "is this ex parte?" And you said that in a manner it is, and I wished you a good afternoon and hung up on you.
After the trial judge completed his statement, the defendant stipulated the summary as "true."
At the hearing regarding Friedman's release status, the trial court observed that Friedman had since been convicted of assault and had allegedly lied to his probation officer. The trial court ordered that Friedman be held in jail without bail until a hearing in October of 2000. The defendant questioned the propriety of a probation revocation proceeding, arguing that Friedman's period of probation had ended well before the issuance of the warrant. Afterward, the following exchange took place:
THE COURT: nything else regarding Mr. Friedman?
MR. COWAN: Well, Your Honor, I don't think this is in the best interest of society but . . .
THE COURT: You're entitled to your opinion . . .
MR. COWAN: Just a side view.
THE COURT: . . .and I'm entitled to my opinion. Between your opinion and my opinion. . .
MR. COWAN: Yours controls.
THE COURT: . . .my opinion counts. That's the way it is. Mr. Friedman has made these facts and gotten himself into this mess.
MR. FRIEDMAN: Your Honor. . .
THE COURT: I'd suggest you don't interrupt me.
MR. FRIEDMAN: Sorry, Your Honor.
THE COURT: And - and this is the consequence. So that's all regarding Mr. Friedman.
MR. COWAN: Okay.
THE COURT: Mr. Cowan, why should the Court not find you in contempt of court for engaging in an ex parte conversation?
The defen
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