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Improper conduct by trial court does not require reversal of contempt order

January 21, 2014

The Indiana Court of Appeals Tuesday found a trial judge committed some improper conduct during a hearing on a protective order, with one judge noting the court was “precariously close to crossing the line” when intervening in the proceedings. Despite this, the appellate court affirmed the order of contempt in favor of the petitioner.

K.G. had a protective order in place against A.N., who was not to directly or indirectly contact him or three other people. K.G. filed several petitions for contempt against A.N., alleging she called his home and ex-wife’s phone. The trial court held a hearing on a contempt petition filed Nov. 10, 2011, the subject of this appeal.

K.G. appeared pro se and A.N. was represented by counsel. The judge, Marion Superior Judge Barbara Crawford, found A.N. violated the protective order and ordered her 120-day sentence executed and placed her on home detention. The judge relied on evidence K.G. presented of a photograph he took of his home phone that displayed a telephone number he claimed belonged to A.N.

A.N. appealed, arguing the trial court improperly acted as an advocate for K.G., thereby violating her due process right to a fair trial.

“The record shows that the trial court’s questions were neutral, served to clarify K.G.’s testimony, and did not discredit A.N. or her defense. Although A.N. alleges prejudice since the trial court cited the photograph when explaining its rationale for finding A.N. in contempt, A.N. was not prejudiced because she cross-examined K.G. on the photograph. We therefore conclude that the trial court did not act as an advocate by asking K.G. foundational questions regarding the photograph,” Judge Patricia Riley wrote in In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G., 49A04-1212-PO-649.

“A.N. asserts that the actions of the trial court, even if individually insufficient to establish improper advocacy, require reversal based on their cumulative effect. The record before us and the nature of the proceedings admittedly contains a number of irregularities and arguably improper conduct by the trial court. However, because the trial court did not err in each of circumstance alleged by A.N., we find no cumulative error and therefore conclude that A.N. was not denied a fair trial. As a result, A.N. has not shown fundamental error,” she continued.

Judge Margret Robb wrote in a concurring opinion that she believed “the trial court was precariously close to crossing the line of acceptable intervention into the course of these proceedings. Had the evidence of A.N.’s impermissible contacts not been so strong, the trial court’s actions may have been enough to compromise the parties’ rights to a fair trial.”
 

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