State of Minnesota, Respondent, vs. Glenn Francis Hazelton, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-2240

 

State of Minnesota,

Respondent,

 

vs.

 

Glenn Francis Hazelton,

Appellant.

 

Filed May 6, 2003

Affirmed in part and remanded Toussaint, Chief Judge

 

Hennepin County District Court

File No. 99125280

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This is an expedited appeal from a probation revocation order and an order, entered during the probation revocation hearing, finding appellant in direct criminal contempt for his conduct during the hearing.  Because we conclude that an earlier notice to remove did not bar the assigned judge from presiding at the revocation hearing; and that appellant's conduct constituted contempt, that there was no abuse of discretion in revoking probation; but that a written contempt order must be issued, we affirm in part and remand.

FACTS

            Appellant Glenn Hazelton was charged with terroristic threats and false imprisonment in Hennepin County in December 1999.  On March 13, 2000, the date set for trial, Hazelton's attorney filed a notice to remove the assigned judge "from presiding at the trial."  Hazelton pleaded guilty that same day before another judge, who sentenced Hazelton to 15 months but stayed execution of the sentence, instead placing Hazelton on probation for three years.  The probation order required that Hazelton "[r]emain law-abiding."

            On August 31, 2002, Hazelton allegedly assaulted S.O., the woman with whom he was living in Isanti County.  S.O. testified at the revocation hearing that Hazelton threatened her with bodily harm, pushed and choked her, and at one point retrieved a knife and kept it within reach.  S.O. reported the incident to police and later obtained an order for protection (OFP) against Hazelton, who had since been arrested.

            Hazelton was transported to Hennepin County, where he was held without bail pending a probation revocation hearing.  The judge against whom Hazelton had filed a notice to remove two years earlier presided at the probation revocation hearing.  Hazelton did not object, and neither party brought to the judge's attention the two-year-old notice to remove.  At the start of the hearing, Hazelton's attorney, while noting that his client wanted the hearing to proceed immediately, pleaded for more time to prepare.  When the court asked Hazelton, however, he stated that he did not want a continuance.

            After the prosecutor's direct examination of S.O., the state's first witness, the hearing was recessed until the following afternoon.  Hazelton's attorney then began his cross-examination, but Hazelton soon interrupted, demanding that the attorney ask particular questions or he would ask them himself.  The district court eventually allowed Hazelton, who waived his right to counsel, to question S.O. himself.  Hazelton's first question asked when they first had sex.  The court sustained the prosecutor's objection, but Hazelton complained that he was being mistreated, then made some factual assertions about his sexual relations with S.O., addressing the witness by her first name.  After Hazelton ignored four attempts by the assigned judge to get his attention, the court found him in contempt but did not impose a sentence.  The assigned judge then reappointed defense counsel, who resumed cross-examination of S.O.  But Hazelton's continual protests eventually caused the court to end the cross-examination.

            Hazelton resumed arguing with the judge after the cross-examination was halted.  When Hazelton refused to stop talking, the assigned judge found him in contempt a second time and imposed a sentence of three months.  Hazelton resumed talking, ignoring three orders to stop, and the judge found him in contempt a third time, sentencing him to six months.  Hazelton continued to protest, and the judge found him in contempt a fourth time, sentencing him to six more months.  When the judge threatened Hazelton with removal from the courtroom if he did not stop talking and Hazelton persisted, Hazelton was removed.  The court later ruled that it would enforce only the first two contempt sentences because the third incident was part of the same course of conduct.

D E C I S I O N

I.

            Hazelton argues that his notice to remove the judge, filed in March 2000, on the date scheduled for trial, barred the judge from presiding over the probation revocation.  Apparently, neither party remembered this two-year-old notice, and it was not brought to the attention of the judge when he presided over the September 2002 revocation hearing.  Because of the passage of time, the movement to a new phase of the prosecution, and the failure to advise the judge, we conclude that Hazelton is not entitled to enforce the notice to remove at this time.

            The criminal rules allow a party to "remove the judge assigned to a trial or hearing" by timely filing a notice to remove.  Minn. R. Crim. P. 26.03, subd. 13(4).  The court is then required to assign another judge "to hear the matter."  Id. at subd. 13(6).  The rule does not expressly provide that a judge, once removed from presiding over a trial or hearing, is permanently barred from sitting on any aspect of the case.  We recognize that in practice a notice to remove is often given that effect.  But the supreme court has held that the right of automatic removal should be narrowly construed.  State v. Cheng, 623 N.W.2d 252, 257 (Minn. 2001); see also State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999).  We conclude that a probation revocation proceeding should not be invalidated based on a two-year-old notice to remove, which was filed in an earlier stage of the prosecution and was never brought to the attention of the presiding judge.

II.

Hazelton argues that the use of the new Isanti County charges as the basis for the revocation allowed the prosecutor, in effect, to use the probation revocation as a substitute for trial on the criminal complaint.  This court has expressed concern in prior cases about district courts hearing probation revocations based on new criminal charges that have not yet been tried.  See State v. Hamilton, 646 N.W.2d 915, 919 (Minn. App. 2002) (affirming revocation that required showing only that new charges were supported by probable cause);  State v. Phabsomphou, 530 N.W.2d 876, 878 (Minn. App. 1995) (holding there are "strong policy considerations" favoring delay of the revocation but that there was no abuse of discretion where defendant was offered use immunity for his testimony at the probation-revocation hearing), review denied (Minn. June 29, 1995).  But Hazelton did not testify at the probation-revocation hearing about the August 31 incident; neither did he request immunity or claim that concerns about the use of his testimony at trial kept him from testifying on that subject.  Hazelton did testify that he had been served with the OFP and had left the two recorded voice-mail messages.  But those admissions do not appear to have been necessary to the state's proof at the revocation hearing or to be important considerations should Hazelton stand trial on the Isanti County charges.

            Hazelton argues that he was prejudiced by the diminished rights afforded at the probation revocation hearing and by the procedure in this case, particularly his attorney's lack of time to prepare and the district court's abrupt termination of the cross-examination of S.O.  But these problems were largely of Hazelton's own making.  It was Hazelton who insisted on proceeding with the hearing despite his attorney's lack of time to prepare.  And it was Hazelton whose behavior caused the court to end the cross-examination.  Nevertheless, Hazelton's attorney had an overnight recess during which to prepare a cross-examination.  Hazelton was not prejudiced by the less-formal procedure of the probation-revocation hearing.

III.

            Hazelton argues that his conduct during the hearing was not contumacious and that the district court's contempt adjudications were not supported by the statutorily required findings.

This court reviews a challenge to the sufficiency of the evidence to support a finding of contempt, as with other sufficiency challenges, by conducting a painstaking analysis of the record viewed in the light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); State v. Lingewall, 637 N.W.2d 311, 313 (Minn. App. 2001).  The contempt statute defines criminal contempt, in relevant part, as

disorderly, contemptuous, or insolent behavior, committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.

 

Minn. Stat. § 588.20, subd. 2(1) (2002).

            Hazelton's conduct throughout the cross-examination of S.O., and after it was cut short, was disorderly, insolent, and "directly tend[ed] to interrupt [the court's] proceedings."  Id.  Hazelton began by being insolent to his attorney.  But when Hazelton began representing himself and addressed S.O. by her first name, while making factual assertions about their relationship and asking, as his first question, when they first had sex, Hazelton's conduct began to be both insolent to the court and disruptive of the court proceedings.  Hazelton ignored four attempts by the court to halt this line of questioning.  Even after being found in contempt a second time, Hazelton persisted in talking despite three orders to "stop talking."

            Hazelton's interruptions, refusals to stop talking, and insolent attitude towards the court were "seriously disruptive" in that they forced the curtailment of cross-examination and the eventual removal of Hazelton from the courtroom.  Moreover, this behavior must be considered in the context of the offense itself and of Hazelton's cross-examination of S.O., which was obviously intended to embarrass and humiliate her.  The district court could hardly be expected to ignore Hazelton's attempts to use the court proceeding as a means of retaliation and humiliation against an alleged victim.  We conclude the evidence is sufficient to support the two adjudications for contempt.

            Hazelton also argues that the district court erred in failing to make the findings required by Minn. Stat. § 588.03 (2002).  That statute provides that, although direct criminal contempts may be summarily punished, the court must issue an order "reciting the facts" and "adjudging the person proceeded against to be guilty of a contempt."  Id.  Because there is no written contempt order in the file, we remand to allow the district court to issue a written order.

            Affirmed in part and remanded.