KEELING (DEREK) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 11, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001418-MR
DEREK KEELING
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 08-CR-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR
JUDGE.
VANMETER, JUDGE: Derek Elwood Keeling appeals from an order of contempt
entered by the Graves Circuit Court. For the following reasons, we affirm.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
During the course of his competency hearing, Keeling interrupted
courtroom proceedings with two short, successive outbursts in which he shouted a
vulgarity specifically directed toward the court. The court warned Keeling that if
his conduct continued, he would be removed from the courtroom. After his second
outburst, no more were forthcoming.
At the conclusion of the hearing, the court took the matter of
competency under advisement and summarily sanctioned Keeling for contempt,
verbally sentencing him to 60 days’ imprisonment immediately upon his release
from the underlying charges, whenever that release might occur. Counsel for
Keeling objected, thereby preserving the issue for appeal. Six days later, the court
found Keeling competent to stand trial and reduced its order of contempt to
writing. Keeling’s subsequent motions to reconsider the competency and contempt
orders were denied.
On appeal, Keeling does not dispute that his conduct was
contemptuous; rather, he challenges the order of contempt on procedural grounds,
asserting that he was denied due process of law because his competency to stand
trial had not yet been determined when the court found him in contempt. In other
words, Keeling argues that at the time of his outbursts, he lacked the capacity for
contempt. We disagree.
In Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996), the
Kentucky Supreme Court defined contempt and summarized the applicable law as
follows:
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Contempt is the willful disobedience toward,
or open disrespect for, the rules or orders of a
court. “Contempts are either civil or criminal.”
Gordon v. Commonwealth, 141 Ky. 461, 463, 133
S.W. 206, 208 (1911). Civil contempt consists of
the failure of one to do something under order of
court, generally for the benefit of a party litigant.
Examples are the willful failure to pay child
support as ordered, or to testify as ordered. While
one may be sentenced to jail for civil contempt, it
is said that the contemptuous one carries the keys
to the jail in his pocket, because he is entitled to
immediate release upon his obedience to the
court’s order. Campbell v. Schroering, Ky.App.,
763 S.W.2d 145, 148 (1988).
Criminal contempt is conduct “which
amounts to an obstruction of justice, and which
tends to bring the court into disrepute.” Gordon,
141 Ky. at 463, 133 S.W. at 208. “‘It is not the
fact of punishment but rather its character and
purpose, that often serve to distinguish’ civil from
criminal contempt.” Shillitani v. United States,
384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16
L.Ed.2d 622, 627 (1966) (quoting Gompers v.
Bucks Stove & Range Co., 221 U.S. 418, 441, 31
S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911)). If the
court’s purpose is to punish, the sanction is
criminal contempt.
Criminal contempt can be either direct or
indirect. A direct contempt is committed in the
presence of the court and is an affront to the
dignity of the court. It may be punished
summarily by the court, and requires no factfinding function, as all the elements of the
offense are matters within the personal
knowledge of the court. In re Terry, 128 U.S.
289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Indirect
criminal contempt is committed outside the
presence of the court and requires a hearing and
the presentation of evidence to establish a violation
of the court’s order. It may be punished only in
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proceedings that satisfy due process. Cooke v.
United States, 267 U.S. 517, 45 S.Ct. 390, 9 L.Ed.
767 (1925).
Subsequently, in Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky.App. 2007), a panel
of this court described criminal contempt as including:
[T]hose acts that obstruct the court’s process,
degrade its authority, or contaminate its purity.
A.W. v. Commonwealth, 163 S.W.3d 4, 11 (Ky.
2005). When a court seeks to coerce or compel a
course of action, the appropriate sanction is civil
contempt. Id. However, when a court seeks to
punish conduct that has already occurred or to
vindicate its authority, the appropriate
sanction is criminal contempt. Id.; Miller v.
Vettiner, 481 S.W.2d 32, 35 (Ky. 1972).
A trial court has considerable discretion when exercising its contempt
powers, and its decision will not be disturbed on appeal absent an abuse of that
discretion. See Meyers, 233 S.W.3d at 215. ‘“The test for abuse of discretion is
whether the trial [courts] decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”’ Id. (quoting Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999)(citations omitted)).
Since Keeling was punished for outbursts which occurred in the
presence of the court, this situation is one of direct criminal contempt, in which the
court has discretion to punish summarily, without any further proof or
examination. See In re Terry, 128 U.S. at 307, 9 S.Ct. at 80. With regards to
Keeling’s argument that he lacked the mental capacity necessary to commit
contempt, we note that “[t]he issue of . . . criminal responsibility for . . . the
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underlying charge of contempt . . . involves different considerations from those
involved in an inquiry into competence to stand trial.” United States v. Flynt, 756
F.2d 1352, 1365 (9th Cir. 1985). “To be competent to stand trial, ‘a criminal
defendant must have sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding and have a rational as well as
factual understanding of the proceedings.’” Id. (quoting Chavez v. United States,
656 F.2d 512, 518 (9th Cir. 1981)). “In contrast, the test for capacity to commit an
offense [such as contempt] inquires into whether ‘at the time of the alleged
criminal conduct, as a result of mental disease or defect [the defendant] lacked
substantial capacity to conform his conduct to the requirements of the law or to
appreciate the wrongfulness of his conduct.’” Flynt, 756 F.2d at 1365 (quoting
Unites States v. Sims, 637 F.2d 625, 628 (9th Cir. 1980)).
Here, the court determined that Keeling’s conduct was controllable
and his outburst was deliberate. No further fact-finding was necessary in order for
the court to summarily punish Keeling for his conduct. As discussed above, the
determination of whether a defendant’s conduct is contemptuous is separate from
the determination of whether a defendant is competent to stand trial. Thus, the fact
that the court had not found Keeling competent to stand trial at the time he was
found in contempt has no bearing on the validity of the contempt order. Based
upon a review of the record, we hold that the court did not abuse its discretion by
finding Keeling in contempt.2
2
Even if we had found the court’s order of contempt to be an abuse of its discretion, such error
would have been harmless since Keeling was found to be competent to stand trial by the time the
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The order of contempt of the Graves Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
written order of contempt was entered into the record.
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