FILED
Jul 19 2017, 5:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
IN THE
COURT OF APPEALS OF INDIANA
Brandon Mockbee, July 19, 2017
Appellant-Defendant, Court of Appeals Case No.
15A01-1701-CR-22
v. Appeal from the Dearborn Circuit
Court
The Honorable James D.
State of Indiana, Humphrey, Judge
Trial Court Cause No.
Appellee-Plaintiff.
15C01-1607-F5-049
Pyle, Judge.
Statement of the Case
[1] Brandon Mockbee (“Mockbee”) appeals the trial court’s finding that he was
twice in direct criminal contempt of the court and the trial court’s sentence that
Mockbee serve one year in jail. Mockbee argues that his behavior did not rise
to the level of a contemptuous act required for two findings of direct contempt
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and that the trial court was not authorized to sentence him to more than six
months in jail for direct contempt without a jury trial. We conclude that the
trial court did not err in finding Mockbee in direct contempt. However,
because we conclude that there was only one continuous act of contempt, we
reverse the trial court’s finding of two acts of contempt and remand to the trial
court to enter a sentence of six months.
[2] We affirm in part, reverse in part, and remand with instructions.
Issue
Mockbee raises three issues, which we consolidate and restate as
whether his behavior constituted a single episode of contempt.
Facts
[3] In July 2016, the State charged Mockbee with two counts of Level 5 felony
burglary and one count of Level 5 felony conspiracy to commit burglary, and it
alleged that he was an habitual offender. Mockbee was initially represented by
counsel, but he then chose to represent himself and had two attorneys acting as
standby counsel. Mockbee filed numerous motions, most of which the trial
court described as “frivolous and repetitive.” (Tr. 40). As a result, the trial
court held “almost 40 hours” of hearings on his motions. (Tr. 40). Mockbee
was removed from the courtroom during those hearings “for disruptive and
threatening behavior” and was warned about his constant unruly actions. (Tr.
39).
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[4] On November 29, 2016, the trial court held a final hearing on Mockbee’s
pending motions, which included a motion to suppress and a motion to sever.
Mockbee represented himself, and, during the hearing, he interrupted the judge,
confused the witnesses, and asked questions that had previously been answered.
During an attempt to play a video, Mockbee taunted opposing counsel by
stating, “Get the Discovery, quit hiding it, we’re going to trial on the 5th, are
you scared? I’m not.” (Tr. 39). The court interjected that it had “had enough”
of Mockbee’s behavior and noted for the record that Mockbee was “constantly
interrupting the Court on a continuing basis” and “ha[d] been warned by the
Court countless times for his disruptive behavior.” (Tr. 39). The trial court
noted that Mockbee’s behavior was “a deliberate attempt to make a circus of
our legal system” and found that Mockbee had forfeited his right to self-
representation. (Tr. 41).
[5] The hearing then continued with Mockbee’s standby counsel representing him.
While Mockbee’s counsel was speaking, Mockbee “ma[de] some kind of
gesture with his hand or finger” to the trial court, and made “glaring, smirking
remarks” and “face gestures at the Court.” (Tr. 50). Mockbee again
interrupted the trial court and counsel during the proceeding and had to be
reminded that his counsel was now representing him. The trial court warned
Mockbee that he would be removed from the courtroom if he continued his
disruptive behavior. Mockbee again interjected when the trial judge was
speaking and was ordered to leave the courtroom. Mockbee then said, “[f]uck
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you,” as the officers removed him. (Tr. 51). The trial judge had the officers
bring Mockbee to the bench where the following exchange occurred:
MR. MOCKBEE: Go ahead; say what you got to say.
THE COURT: The Court is going to say -
MR. MOCKBEE: Say it please; that you’re bias[ed], you[’re]
unprejudicial [sic], you’re scared to give somebody a fair trial in this
Courtroom! I filed a police report against you and [defense counsel].
Please say it, because all the remarks –
THE COURT: Mr. Mockbee –
MR. MOCKBEE: – you make as a Judge when you’re not in control
and you’re not in the situation – God have mercy on your soul, sir!
THE COURT: Okay, take him out of here.
MR. MOCKBEE: Now contempt that, please!
THE COURT: Okay, you are found in direct contempt of this Court.
MR. MOCKBEE: Thank you.
THE COURT: I am going to order, based upon your continued
misbehavior in this Courtroom –
MR. MOCKBEE: Please do so –
THE COURT: Six months; six months –
MR. MOCKBEE: – because your behavior is what’s been
distinguished here, sir.
THE COURT: – make it nine months.
MR. MOCKBEE: Your very distinguished behavior has been an
absolute disgrace –
THE COURT: Get him out of here.
MR. MOCKBEE: – in this Courtroom!
THE COURT: Okay, Mr. Mockbee…
MR. MOCKBEE: And I don’t back down on you for fear of you, sir!
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THE COURT: Okay, Mr. Mockbee has just got himself another six
months –
MR. MOCKBEE: Please man.
THE COURT: – so he’s looking at, I’m going to make it one year
additional.
(Tr. 51-53). After Mockbee left the courtroom, the trial court noted that his
“behavior at this time ha[d] continued” and that the trial court was “not going
to subject the parties or a jury to this kind of behavior . . . .” (Tr. 53). The trial
court found that Mockbee was in “direct contempt” and that “he w[ould] be
sentenced accordingly[.]” (Tr. 53). The hearing then continued without
Mockbee present.
[6] On December 5, 2016, the trial court entered its order of direct contempt. The
trial court “found [Mockbee] in contempt and ordered a sentence of one
hundred and eighty (180) days and ordered an additional one hundred and
eighty (180) days for continued actions, words, and disruptive behavior.” (App.
Vol. 2 at 47). The trial court ordered “two separate sentences” of six months
“based upon defendant’s failure to cease his disruptive behavior after the
imposition of the first contempt sentence.” (App. Vol. 2 at 49). Mockbee now
appeals.1
1
Mockbee was later convicted of multiple counts following a jury trial, and he separately appeals those
convictions under appellate cause number 15A01-1703-CR-483.
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Decision
[7] Direct criminal contempt citations are available where “the court has firsthand
and immediate knowledge of acts demonstrating a clear disregard for its
authority which threaten to undermine the integrity of the judicial process and
impede the performance of court work.” Hopping v. State, 637 N.E.2d 1296,
1297 (Ind. 1994). Indeed, “[a]ny act which manifests a disrespect and defiance
of a court may constitute direct criminal contempt.” Id. (emphasis in original).
“The power of Indiana courts to summarily punish for direct criminal
contempt, while specified by statute, rests upon the common law. It is inherent
in the courts.” Id. at 1296. “On appeal, we afford great deference to trial
courts’ contempt decisions.” Carroll v. State, 54 N.E.3d 1081, 1085 (Ind. Ct.
App. 2016). Accordingly, we accept as true the statements of facts entered by
the trial court. Id.
[8] We note that the direct contempt statute provides, in relevant part, that:
(a) Every person who disturbs the business and proceedings of a court:
(1) by creating any noise or confusion;
(2) in a court of record; and
(3) while the court is open and engaged in the transaction of business
is considered guilty of direct contempt of court.
(b) This section applies to a disturbance caused:
(1) by the commission of a felony, a misdemeanor, or an other unlawful
act;
(2) by talking, moving about, or by signs, or gestures; or
(3) in any other manner.
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I.C. § 34-47-2-1. “Indiana courts have long held that ‘[d]isorderly conduct,
insulting demeanor to the court, and a disobedience of its orders in facie curiae
constitute a direct contempt.’”2 Carroll, 54 N.E.3d at 1086 (quoting Holman v.
State, 105 Ind. 513, 5 N.E. 556, 557-58 (1886)). “Indiana appellate courts will
only interfere with a contempt finding ‘where it clearly appears the acts do not
constitute contemptuous acts.’” Id. at 1085-86 (quoting In re Nasser, 644 N.E.2d
93, 95 (Ind. 1994)). “Contemptuous acts are those in opposition to a court’s
authority, justice and dignity.” Nasser, 644 N.E.2d at 95.
[9] Contempt sanctions are essential to ensuring that judicial processes are not
undermined. Hopping, 637 N.E.2d at 1297. “[W]here no legislative penalty is
specified and sentencing is left to the discretion of the judge, as is often true in
the case of criminal contempt, the pettiness or seriousness of the contempt will
be judged by the penalty actually imposed.” Holly v. State, 681 N.E.2d 1176,
1177 (Ind. Ct. App. 1997). “[S]entences up to six months may be imposed for
criminal contempts without guilt or innocence being determined by a jury.” Id.
[10] First, it must be noted that from time to time difficult litigants appear in court
and disturb proceedings with foul and abusive behavior. During those times,
even the most patient judges must use contempt powers to maintain order and
the dignity of Indiana’s courts. However, contempt powers may not be used to
“‘heal the wounded sensibilities of a judge; it may be invoked only when the
2
In facie curiae means “[i]n the presence of the court.” BLACK’S LAW DICTIONARY 896 (10th ed. 2014).
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offending act impedes or disturbs the administration of justice.’” Grimm v.
State, 240 Ind. 125, 128, 162 N.E.2d 454, 456 (Ind. 1959) (quoting Francis v.
People of Virgin Islands, 11 F.2d 860, 865 (3d Cir. 1926)).3 When warranted, a
contempt citation should be imposed promptly, but it must be kept within
prudential limits. Id. at 457. Where the legislature has “prescribed no
maximum sentence for criminal contempt, courts have a special duty to
exercise their extraordinary contempt powers with the ‘utmost sense of
responsibility and circumspection.’” Matter of Craig, 552 N.E.2d 53, 56 (Ind. Ct.
App. 1990) (quoting United States v. Misenheimer, 677 F. Supp 1386, 1388 (N.D.
Ind. 1988)). In other words, “a sentence from criminal contempt should reflect
the least possible power adequate to the end proposed . . . .” Id. (internal
quotation marks and citation omitted).
[11] In this case, the record of the November 29, 2016 hearing is filled with evidence
of Mockbee’s contemptuous behavior. Mockbee repeatedly interrupted the
proceedings, made inappropriate outbursts, and directed profanity toward the
trial court. See Holly, 681 N.E.2d at 1178 (finding of direct contempt affirmed
when defendant directed profanity at the trial court). However, the issue in this
case is whether multiple acts of contempt within a single hearing may be
punished separately or whether they constitute a single episode of contempt.
3
Through this citation, we are not suggesting that the trial court in this case used its contempt powers with
an improper motive.
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[12] Other jurisdictions have prohibited multiple punishments for a single episode of
contempt. Of particular note is the Vermont Supreme Court’s opinion in State
v. North, 978 A.2d 435, 436 (Vt. 2009). In that case, the court highlighted the
following exchange between a defendant and trial court after sentencing:
DEFENDANT: Go fuck yourself, Your Honor.
COURT: Bring him back here please. Bring him back here. I’m holding
the Defendant in contempt of Court. He’ll serve an additional five to six
months for contempt of Court for cursing at the judge.
DEFENDANT: Go fuck yourself—
COURT: Okay. That’s another five to six months for contempt of Court
consecutive. Do you want to keep going, Mr. North?
DEFENDANT: [unclear]
COURT: Another five to six months. Fifteen to eighteen months
consecutive, in addition to the three to twenty years.
North, 978 A.2d at 436. The trial court entered three findings of contempt and
ordered the sentences served consecutively. The defendant appealed.
[13] In determining whether this series of profane remarks represented “discrete
contempts” or “a single contemptuous episode,” the Vermont Supreme Court
focused on “the factors of time and place and whether the offenses were
motivated by a single criminal objective.” Id. at 439 (internal quotation marks
and citation omitted). The court concluded that because the verbal exchange
occurred in one location, lasted a short period of time, and was not interrupted
by other proceedings, it should be considered one single contemptuous episode.
“Furthermore, defendant’s original insult and his renewed attack in response to
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the court’s contempt sentence flowed from the single criminal objective – to
flaunt his disrespect for authority in open court.” Id.
[14] We are persuaded that the reasoning of the Vermont Supreme Court is sound
and instructive in this case. Here, Mockbee repeatedly interrupted the trial
court, made faces and hand gestures that were disruptive, taunted opposing
counsel, used profanity, and refused to respect the dignity and authority of the
trial court. It was appropriate for the trial court to find Mockbee in direct
contempt of court. However, Mockbee’s behavior occurred within a single
proceeding, lasted a relatively short period of time, was not interrupted by
another proceeding, and flowed from a single criminal intent – to disrespect and
disrupt the administration of justice. Even though Mockbee continued to
behave in a contemptuous manner after the initial contempt citation, his
continuing behavior was in response to the trial court’s initial contempt citation
and flowed from the same criminal objective. (App. Vol. 2 at 49) (“The Court
finds that two separate sentences of 6 months (180 days) were imposed based
upon defendant’s failure to cease his disruptive behavior after the imposition of
the first contempt sentence.”). We are aware that determining whether multiple
acts of contemptuous behavior forms a single contemptuous episode is a fact
sensitive determination. We can imagine scenarios within a single hearing that
might justify multiple contempt citations. For example, a litigant whose
outburst receives a contempt citation might be properly cited again after a
period of calm behavior within the same proceeding. See Smith v. State, 855
A.2d 339 (Md. Ct. App. 2004) (three acts of contempt were separate and
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discrete supporting three convictions). However, where, as here, multiple acts
of contempt form a single contemptuous episode, we hold that a single
punishment of not more than six months may be imposed, without a jury trial.
This rule allows Indiana’s judges to maintain order and dignity while avoiding
the temptation to become embroiled in a battle of wills with an unruly litigant.
See United States v. Murphy, 326 F.3d 501, 504 n.3 (4th Cir. 2003) (the potential
exists for a defendant to amass decades of prison time as the result of a
prolonged diatribe); Johnson v. State, 642 A.2d 259, 263-64 (Md. Ct. Spec. App.
1994) (series of insults interrupted only by a judge’s pronouncements that
defendant was guilty of contempt which may have provoked defendant into
repeated instances of contempt, constituted only one contempt offense).
[15] As to what should happen to Mockbee’s second contempt citation, the
reasoning of the Vermont Supreme Court suggests that it should be served
concurrently with the first citation. North, 978 A.2d at 439-40. However, we
believe that vacating the second contempt citation is more consistent with our
reasoning in Matter of Craig, in which we explained, that “a sentence for
criminal contempt should reflect the least possible power adequate to the end
proposed . . . .” Matter of Craig, 552 N.E.2d at 56 (internal quotation marks and
citation omitted). Other jurisdictions have followed this approach. See State v.
Lingwall, 637 N.W.2d 311, 315 (Minn. Ct. App. 2001); Butler v. State, 330
So.2d 244 (Fl. Ct. App. 1976), cert. denied. As a result, we affirm the trial
court’s first finding of contempt. However, because we find that Mockbee’s
behavior constituted a single episode of criminal contempt, we vacate the trial
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court’s second finding and corresponding six month sentence for contempt. We
remand and direct the trial court to enter a sentencing order for criminal
contempt and a six month sentence to be served consecutive to Mockbee’s
sentence from his criminal convictions under cause number 15C01-1607-F5-
049.
[16] Affirmed in part, reversed in part, and remanded.
May, J., and Brown, J., concur.
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Brandon Mockbee v. State of Indiana
Combined Opinion