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Salvagio v. State

Alabama Court of Criminal Appeals

October 12, 2018

Charles Salvagio
v.
State of Alabama

          Appeal from Jefferson Circuit Court (CC-07-3052.43)

          PER CURIAM.

         Charles Salvagio appeals the circuit court's order finding him guilty of criminal contempt, as defined by Rule 33.1(b)(3)(b), Ala. R. Crim. P. Salvagio was ordered to be confined in the Jefferson County jail for 72 hours and was ordered to pay a $100 fine in compliance with § 12-11-30(5), Ala. Code 1975.

         The record indicates that Salvagio was one of the attorneys who represented Steven Petric in his capital-murder trial, at the end of which Petric was convicted of capital murder and sentenced to death. Petric v. State, 157 So.3d 176 (Ala.Crim.App.2013). In May 2015, Petric filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief alleging ineffective assistance of trial counsel.

         On August 29, 2017, an evidentiary hearing was held on Petric's Rule 32 petition. Judge Tracie Todd presided. At the beginning of the evidentiary hearing, the State invoked the general exclusionary rule for witnesses. Salvagio was the first witness. He testified that, immediately before the evidentiary hearing, he had briefly spoken with Dr. Kimberley Ackerson, another potential witness in the Rule 32 hearing, about the case. Judge Todd later admonished all witnesses that they were not to have any conversations or contact with other witnesses and that they were not to discuss the case with anyone until the process was concluded. The evidentiary hearing continued the following day, and Salvagio was again called to testify. During Salvagio's testimony, he testified that the previous night, he had telephoned Rick Miller, another potential witness in the Rule 32 proceeding, and briefly discussed the case with Miller. Later in the hearing, following a second admonishment by Judge Todd for witnesses to refrain from discussing the case with anyone connected to Petric's case, Edward Tumlin, Salvagio's cocounsel during Petric's trial, testified that Salvagio had also called him the night before and briefly discussed what had happened in court the previous day.

         On August 31, 2017, the circuit court issued an order instructing Salvagio to "show cause as to why his conduct [was] not a display of willful disobedience or resistance to the Court's unambiguous and lawful order not to have contact with anyone involved with [Petric's Rule 32] petition." (C. 9.)

         On September 20, 2017, Salvagio filed a "Petition for Disqualification and Recusal," requesting that Judge Tracie Todd recuse herself from his contempt proceedings. (C. 94.) Salvagio claimed that it was a violation of Canon 2 and 3.C of the Alabama Canons of Judicial Ethics for Judge Todd to preside over his contempt proceeding because there was "an appearance of impropriety" and "that her impartiality might be reasonably questioned in that she [publicly] identified [Salvagio] as a supporter, financial and otherwise, of her political opponent in a contested judicial election, and his co-counsel in Mr. Petric's trial." (C. 94-96.) On September 21, 2017, before the contempt proceeding, arguments were heard from counsel regarding the recusal issue. Judge Todd denied Salvagio's petition for recusal. After Judge Todd's denial of Salvagio's request for recusal, Salvagio moved the court to stay the contempt proceeding to allow him time to file a petition for mandamus on the recusal matter, which motion the circuit court denied.

         The circuit court subsequently held a contempt proceeding. At the conclusion of the hearing, the court found that Salvagio had disregarded an order from the circuit court and held Salvagio in contempt of court. Salvagio appealed the circuit court's contempt adjudication.

         On appeal, Salvagio argues that the circuit judge erred by failing to recuse herself from his contempt proceedings.[1] Salvagio claims that Judge Todd's presiding over his contempt proceeding violated Canons 2 and 3.C of the Alabama Judicial Canons of Ethics. Specifically, Salvagio alleges that Judge Todd's impartiality might reasonably be questioned because Judge Todd questioned him on the witness stand regarding his support -- financial and otherwise -- of her political opponent.

         To support his argument, Salvagio cites the following testimony that occurred during Petric's Rule 32 evidentiary hearing:

"THE COURT [Judge Todd]: While they're doing that, Mr. Salvagio, did Ms. Ladner[2] come to you as a donor for her campaign or to be on her campaign committee?
"[Salvagio:] Judge, I think she basically wanted to know if she could use my name, I believe.
"THE COURT: On her campaign?
"[Salvagio:] I don't know, Judge.
"THE COURT: Did you contribute to her campaign?
"[Salvagio:] I don't think I gave her any money. I'm not sure. I give money to everybody.
"THE COURT: Were you on Judge Cole's[3] committee or contribute to ...

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