Appeals Court upholds conviction of Army recruiter

By Thomas Wilson
STAR STAFF
twilson@starhq.com

   An Army recruiter convicted for criminal contempt in misleading a judge concerning his parental relationship with a Carter County recruit has been upheld by the state Court of Criminal Appeals.
   In a ruling written by Judge James Curwood Witt, the court upheld the conviction of Charles Johnston for criminal contempt involving Carter County Judge John Walton's decision to terminate the probation of Johnston's stepson, Erik Miller, on the basis of his entry into the U.S. Army.
   According to the court of appeals background summary, Miller was serving probationary sentences for various Carter County convictions in April 2001. The ruling reads that on April 30, 2001, Johnston approached Walton about having Miller released from probation so that he could serve in the Army. The encounter was not in formal courtroom proceedings, and there was not a written record or tape recording of it, according to the appellate court's ruling. As a result of the conversation -- the exact tenor of which is disputed -- Walton signed an order "terminating" Miller's probation so that Miller could join the Army.
   According to the court background summary, the issue came to the attention of Miller's probation officer, Rusty Miller, who contacted Johnston by telephone. Johnston told Rusty Miller that Erik Miller had enlisted in the Army Reserves and that there was no difference between the "regular Army" and Army Reserves, according to court records. Following the telephone conversation, Johnston faxed a letter to the probation officer stating that Erik Miller joined the Army Reserves on March 26, 2001 with a ship date of June 2, 2001.
   The letter also said that Miller "decided at the last minute to go Regular Army (active duty)" and would get a new date when to "ship" at a later time, according to the background summary. From the information she received, Rusty Miller began show-cause proceedings against Miller based upon his failure to go into active-duty Army service.
   Walton conducted a hearing in September 2001 and withdrew the prior termination of Miller's probation, finding Johnston in contempt for perpetrating a fraud upon the court. Miller's show-cause hearing was voluntary and not the result of legal process. After finding the defendant in contempt for perpetrating a fraud on the court relative to Miller's release from probation, Walton imposed a fine of $50 and sentenced Charles Johnston to 10 days in jail.
   After three days in jail, Johnston's attorney filed a notice of appeal. Bond was set, and Johnston was released. The matter then went to trial in Criminal Court in June 2002 and Johnston was found guilty. Judge Lynn Brown fined Johnston $50 and sentenced him to 10 days in jail. Johnston's attorney, LeRoy Tipton Jr., filed a motion for a new trial in July 2002 and later appealed the conviction.
   In his appeal, Johnston claimed evidence does not sufficiently support the conviction, that his due process rights were violated in the conviction proceedings; that the court erroneously admitted an audiotape of prior proceedings in General Sessions Court; that he was sentenced too harshly and unfairly denied judicial diversion, and that the lower court abused its discretion in setting his appeal bond.
   According to Walton, the defendant represented himself as Miller's recruiter and did not reveal his step-parental relationship with Miller. Walton understood that he was releasing Miller for active-duty Army service, and he discussed this with the defendant. According to Walton, there was never any mention of Miller serving in the Army Reserves. Walton claimed that he told Johnston to inform him if Miller did not ultimately enlist.
   Johnston claimed that he did not attempt to mislead Walton in obtaining Miller's release from probation. According to the court's ruling, Johnston claimed that Miller, as well as Miller's mother, had done most of the talking to Walton. Johnston claimed that Walton told Miller, not him, to notify the court should Miller not follow through with his military service, and the defendant denied otherwise having any obligation to do so. Johnston testified that on April 30, Miller had already been sworn into the Army Reserves on March 26, and Miller had a "ship date" for basic training of May 2.
   According to Johnston, Miller was not able to enlist directly into the active duty Army because he had only a GED, not a high school diploma. For this reason, he would have to complete his training and six months of reserve duty before applying for active duty service.
   After receiving the evidence, the Criminal Court found that the case turned on the comparative credibility of Johnston and Walton. In that respect, the court found that the defendant's testimony was unworthy of accreditation based upon the defendant having appeared deceptive and having been evasive in his testimony, according to the appellate court background.
   Further, the court found that the defendant had engaged in willful deception of Walton, who terminated Miller's probation as a result of that deception. Thus, the court found the defendant guilty of contempt.
   The appeals court opinion also found Walton's order relative to the Johnston's case was "deficient" under court rules. The opinion states that "The order fails to address whether the judge saw or heard the conduct constituting contempt and whether such took place in the court's presence. Moreover, the order fails to address its factual basis."
   The ruling states the record in the case at bar contains Walton's oral statements at the General Sessions Court hearing in which he found the defendant's actions to be contemptuous conduct and certified that it was committed in his presence. "The deficiency is that this was omitted from the written order," the ruling states.
   The appeals court ruled that the evidence accredited by the lower court supported a conclusion that Johnston misrepresented to Walton that Miller must be released from probation in order to join the Army, when in fact, Miller had already joined the Army as a reservist. The appeals court also ruled Johnston's Fifth Amendment rights were not violated because direct criminal contempt is one which is committed in the presence of the court and may be prosecuted summarily. The ruling states "We believe that the defendant's conduct in question occurred in the presence of Walton, which means it was properly pursued as a matter of direct contempt."
   The court ruled the evidence supported a conclusion that the defendant misled or at least did not correct any misimpression Walton had that Miller would be on active duty, not reserve duty.
   The court affirmed the judgment of the trial court adjudicating the defendant and imposing a ten day jail sentence and a $50 fine.