STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT NO: KW 15-00553 Judgment rendered and mailed to all parties or counsel of record on August 24, 2015. STATE OF LOUISIANA. VERSUS MARK LEFEVRE (IN RE: CHRISTIAN D. CHESSON) FILED: 06/11/15 On application of Mark Lefevre for Writ of Review in No. 18250 on the docket of the Fourteenth Judicial District Court, Parish of Calcasieu, Hon. Guy Ernest Bradberry. Counsel for: “John Green, Jr. Mark Lefevre Counsel for: John Foster DeRosier State of Louisiana Lake Charles, Louisiana, on August 24, 2015. WRIT GRANTED AND MADE PEREMPTORY: There was no evidence that Mr. Chesson attempted or actually recorded/photographed/videoed a rape victim at a sentencing hearing conducted on February 27,2015. The record shows Mr. Chesson was not present in court at that hearing. Further, there is no evidence Mr. Chesson attempted to or actually recorded or photographed a rape victim during court proceedings on January 12, 2015. The record shows Mr. Chesson was not present in court on January 12, 2015. Although Mr. Chesson was present in court on February 23, 2015, there was insufficient evidence that he engaged in any conduct which would constitute criminal contempt of court. The judge briefly discussed the matter with Mr. Chesson at the bench and directed him back to his seat. Nothing indicates, and it is not alleged, Mr. Chesson took any pictures or used his cell phone after the judge spoke to him about the matter. Thus, nothing indicates that Mr. Chesson is guilty of any direct contempt of the judge’s orders. We note too, the record indicates that after speaking to Mr. Chesson at the bench, the judge did not alert all present in court that there was to be no picture taking on cell phones or cameras. The judge did not ask to view the a AUG 27 2015NO: KW 15-00553 August 24, 2015 Page 2 cell phone to determine then and there whether there were any pictures on the cell phone of the courtroom or the victim. Neither did he elect to have a hearing contemporaneous with the alleged contemptuous behavior. Instead, he elected to have asummary hearing at a later date. Additionally, nothing shows Mr. Chesson was deliberately targeting the victim except third-party hearsay testimony relied upon by the judge as to what may have been in her mind. The statements of Ms. Killingsworth and Ms. Brock are not properly before us for consideration. First, these written statements were not entered in evidence in the proceedings but were only made part of the record after the close of the proceedings, and not until after Mr. Chesson filed his writ application with this court. The statements were formally entered into evidence by the judge when he prepared a “per curiam” apprising this court of his testimony in the matter and submitting these statements as evidence he considered in support of his ruling. We decline to consider these written statements as evidence because they were not part of the record below maintained by the Clerk of Court. Moreover, there is no evidence that the witnesses who made these statements were unavailable for the hearing. Mr. Chesson was not apprised of these statements prior to the hearing, and had no opportunity to cross examine these witnesses or even prepare a response. Neither of these statements is made under oath and one is not even dated. Any consideration of these statements would be a flagrant violation of Mr. Chesson’s right to due process. We also note that if the judge, as here, is to be a witness in the matter, a hearing should be scheduled before a different district judge. Further, even if the allegation of contempt had tooth, Mr. Chesson was not accorded his right to due process. He was not given prior notice to defend against allegations concerning his behavior in court on February 23, 2015 and/or February 27, 2015. The only notice of hearing served on Mr. Chesson specifically referenced “alleged video and audio recording of proceeding{s] in Open Court on January 12, 2015,” but at the non-contemporancous, summary contempt hearing, the trial judge addressed behavior that allegedly occurred on February 23, 2015.’ Additionally, the judge relied on third party evidence, as well as his own observations, further requiring adequate notice to Mr. Chesson. See State v, Woolridge, 95-971, pp. 9-10 (La.App. 5 Cir. 2/27/96), 670 So.2d 1332, 1337, writ denied, 96-3043 (La. 10/3/97) 701 So.2d 192 (citing In re Oliver, 333 U.S. 257, 68 S.Ct. 499 (1948) and Cooke v. United States, 267 USS. 517, 45 S.Ct. 390 (1925). As the United States Supreme Court made clear in In Re Oliver, 33 U.S. 275-76: "The trial judge states in his per curiam to this court that “Mr. Green [Chesson’s attorney] did not place any objection on the record until the hearing had already concluded.” The transcript does not support this chronology. The record reflects that after first telling Mr. Green he did not “need to hear from {himj” the trial judge at the close of the hearing instructed the clerk, court reporter and sheriff as follows: “[L]et the record reflect that Mr. Green has requested an opportunity to place a matter on the record. Thank you, Mr. Green you may proceed.” Mr. Green then proceeded to make an objection on the record to the court’s failure to give notice to Mr. Chesson that the hearing would address his alleged behavior on February 23, 2015. Mr. Green pointed out that the notice specifically stated the hearing concerned “audio and video recording in open court on January 12",2015.” Thus, Mr. Chesson clearly made a timely objection.NO: KW 15-00553 August 24, 2015 Page 3 Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority before the public.’ If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke case, that the accused be accorded notice and a fair hearing as above set out. In this case, as in In Re Oliver, “{t]he facts shown by this record put this case outside the narrow category of cases that can be punished as contempt without notice, hearing, and counsel.” In Re Oliver, 333 U.S. 276. Chesson did not have notice which comports with due process, the judge did not conduct a contemporaneous hearing on the matter, and although Chesson was represented by counsel at the hearing his lawyer was not allowed to participate in the hearing. At the beginning of the summary hearing the judge told Chesson’s attormey “he did not need to hear from [him].” It was not until the end of the hearing that Chesson’s attorney was allowed to speak. At which time he stood and emphatically voiced objection to the entire process as a violation of his client's constitutionally protected right to due process, Further, as we discussed above, there were additional reasons rendering the use of the unsworn written statements inappropriate and in violation of Mr. Chesson’s constitutional right to due process. The record also reveals the sentencing hearing concerning the convicted rapist, which the trial judge referred to as the basis for finding Mr. Chesson in contempt, was conducted on January 27, 2015, a date on which the record shows Mr. Chesson was not present in court. Accordingly, the trial court’s ruling of direct contempt is reversed and the unlawful sentence” imposed is vacated, utd ARE UGT SRC Pickett, J., dissents. I find no error in the trial court’s ruling and would deny the writ. *The maximum punishment which can be imposed upon attorney Chesson for direct contempt is a maximum fine of one hundred dollars or imprisonment for not more than twenty-four hours.