Dowdy v. Palmour

Birdsong, Judge. Contempt. Appellants Dowdy and McDonald are attorneys-at-law who practice in the Hall County Superior Court. In August, 1981, both appellants represented a criminal defendant in a revocation of probation hearing. At the beginning of the hearing, as the first witness for the state was being called, appellants invoked the rule of sequestration. The trial court ordered all witnesses in the proceedings to come forward, be sworn and retire from the courtroom until called. The prosecution witnesses appeared as ordered. No defense witnesses appeared nor did counsel for defendant inquire if the order for “all witness to appear” included witnesses for the defense. At the beginning of the defense case, the first witness approached the witness chair and was challenged by the prosecutor as having come from within the courtroom. The trial court, though not sure where the witness had been seated, allowed the witness to testify. Thereafter, additional defense witnesses were called and it became clear that no defense witnesses had been sequestered. The trial court allowed all defense witnesses to offer testimony. However, the court indicated its displeasure to the defense counsel that they had invoked the rule of sequestration but then wilfully disobeyed the order of the court to have all witnesses appear for swearing and sequestration. During the presentation of evidence by the state, the state offered evidence taken from an automobile. Appellants objected on the grounds of an illegal search and seizure from the auto because there was a failure to obtain a search warrant in spite of ample time to do so. The following colloquy occurred: “DOWDY: Judge, may I enter one more objection? The second objection is that this car is the fruit of an illegal search, in our opinion, since there was time to get a search warrant. “COURT: I can take that out in a flash. You’re wrong. You want some citations, or has Mr. McDonald got that big fat book that he always carries around. “DOWDY: We have our citations and we’ll stand on them. “COURT: [Apparently addressed to McDonald] What are yours? “McDONALD: Give him those citations. [805] “COURT: What are yours? You read yours, Mr. McDonald. (Pause) Have you got any? (Pause) Mr. McDonald, if you would, I’m addressing you. If you would stand and please respond to me, I would appreciate it. (Pause) Has he lost his voice, Mr. Dowdy?” At the conclusion of the revocation proceedings, the trial court ruled as follows: “The rule was invoked. I asked that all witnesses come around and be sworn. Both of you, apparently, didn’t think that applied to the defendant’s witnesses, and the defendant’s witnesses were allowed by defense counsel to remain in the courtroom, the court not knowing who the witnesses were. Additionally, to you, Mr. McDonald, at the time, I asked you a question. You sat in your chair. When the court addressed you, you did not stand up. You did not respond when requested by the court to do so, and as a matter of fact, in so doing, Mr. McDonald, I want the record to be perfectly clear, that your expression clearly indicated to the court that you were ignoring this court. “Now, this court deems that this is a direct contempt of this court and will deal with each of you attorneys right now. The acts complained of are that each of you misbehaved as officers of the court, in your official capacity as an officer of the court, after the court — or you, Mr. Dowdy, asked that the witnesses be sequestered, and then both of you, as attorneys for the defendant, allowed the witnesses to remain in the courtroom, especially after the court said ‘let all the witnesses come around and be sworn.’ “This was in disobedience to a lawful order, or a command, if you want to call it that, of the court, which tended to obstruct the administration of justice. It was also the disobedience of a lawful order of the court. . . . “The court is going to rule that these were contemptuous and insultant [sic] acts in the immediate view and presence of the court, which tended to obstruct the orderly administration and proceedings of the court and to impair the respect due the court and its authority.” The court then held each attorney in wilful contempt but imposed no sanctions other than to admonish both to read the rules of the court, to respond to all requests and questions made by the court as gentlemen and officers of the court. Each attorney filed a separate appeal, but because the issues in each case are the same and arise out of the same factual situation, we have consolidated the two appeals as one. Held: Appellants have filed a consolidated and quite voluminous brief containing some 50 pages. In essence, appellants simply contend that they only did what they had a right to do and at no time exhibited contumacious behavior nor failed to obey the court or respond [806] diligently and fully to all court orders. In short, appellants do not deny the occurrences but argue that what the trial court regarded as contumacious conduct was authorized in the law and was performed in a professional and courteous manner. Appellants complain that the trial court presently and in the past has harbored personal ill feelings toward each appellant and based the contempt upon these personal feelings rather than upon a valid finding of contumacious conduct. It is equally apparent that the trial court based its contempt action upon the two clearly exemplified occurrences. Our quest is simply to determine if the action of the trial court, viewed in the light tending to support the contempt order, preponderates in favor of that order. Farmer v. Holton, 146 Ga. App. 102 (245 SE2d 457). We first observe that contumacious conduct classically falls into two categories. The first is that which tends to obstruct the orderly administration of justice. The second type usually tends to hold the court itself in contempt by action or word. As an example of the second category, see Spruell v. Jarvis, 654 F2d 1090 (5th Cir. 1981). “In this case attorney Spruell was found in contempt of court solely for the statements in his objection to the trial judge’s instruction to the jury on the statutory definition of entrapment____the petitioner’s objection apparently was well-taken. . . . [u]nlike those cases where the trial judge must use the summary contempt power to maintain order in the courtroom .. . here Spruell’s conduct cannot be said to have amounted to an obstruction of the orderly administration of the judicial process.” Spruell v. Jarvis, at p. 1094. In the case of Farmer v. Strickland, 652 F2d 427 (5th Cir. 1981), the conduct of attorney Farmer was found to be obstructive. In that case the circuit court expressly recognized the trial court’s power summarily to find contempt and sentence therefor. “Although Taylor [v. Hayes, 418 U. S. 488 (94 SC 2697, 41 LE2d 897)] did significantly limit a trial judge’s authority to punish contemptuous conduct summarily when the final adjudication of contempt and sentencing are postponed until after trial, it is clear that the use of summary contempt procedures is appropriate in certain circumstances.” Farmer, supra, p. 436. The Taylor case, supra, established guidelines useful for our consideration in the instant case. “[B]efore an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full-scale trial is appropriate. Usually the events have occurred before the judge’s own eyes, and a reporter’s transcript is available. But the contemnor might at least urge, for example, that the behavior [807] at issue was not contempt but the acceptable conduct of an attorney representing his client; or, he might present matters in mitigation or otherwise attempt to make amends with the court.” Taylor v. Hayes, supra, p. 498-499. In this case both Dowdy and McDonald were specifically informed of the acts considered contumacious and given an opportunity to rebut or mitigate the same. It is also clear that in the eyes of the court the conduct of counsel was of that nature to obstruct the administration of justice in his court. We conclude therefore that the conduct of counsel was of that character to warrant the use of summary contempt procedure recognized in the Taylor case, supra. One other observation is necessary. Objection was made that the trial court was too personally involved to conduct the hearing and assess sentence itself. This contention is not well taken. “It is, of course, not every attack on a judge that disqualifies him from sitting ... a lawyer’s challenge, though ‘disruptive, recalcitrant and disagreeable commentary,’ was still not ‘an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.’ ” Mayberry v. Pennsylvania, 400 U. S. 455 at 465-466 (91 SC 499, 27 LE2d 532). Our examination of the dialogue between court and counsel reflects a lack of that degree of scurrilousness raising a suspicion of bias or presence of strong feeling on the part of the trial court. Code Ann. § 24-104 grants every court the power to punish for contempt committed in its presence. Plunkett v. Hamilton, 136 Ga. 72 (1) (70 SE 781). Moreover, every court has the inherent power to preserve and enforce order and compel obedience to its order, to control the conduct of its officers, and to inflict summary punishment for contempt upon any person failing and refusing to obey any lawful order of the court. Bradley v. State, 111 Ga. 168, 170 (36 SE 630). There is no doubt that the summary contempt power is still available to courts, under appropriate circumstances, to control judicial proceedings. “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Illinois v. Allen, 397 U. S. 337, 343 (90 SC 1057, 1061, 25 LE2d 353). This court will not seek to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court. Jackson v. State, 225 Ga. 553, 557 (4) (170 SE2d 281); Young v. Champion, 142 Ga. App. 687, 691 (236 SE2d 783). If there is any substantial evidence authorizing a finding that the parties charged were guilty of contempt, and that is the trial judge’s conclusion, his judgment must be affirmed insofar as the sufficiency of the evidence [808] is concerned. Nylen v. Tidwell, 141 Ga. App. 256 (233 SE2d 245). We do not consider the remarks of the judge of such character as to engender contempt by counsel. We are not able to conclude under the rules of law applicable nor from the facts of the record, that the trial judge’s adjudications of contempt were gross, erroneous or flagrant abuses of discretion. Having conducted themselves as the record shows, counsel perforce must abide the consequences. Decided November 30, 1982 Rehearing denied December 16, 1982. Andrew A. Dowdy, Victoria Little, for appellant (case no. 63989) . Douglas W. McDonald, Victoria Little, for appellant (case no. 63990) . Jeff C. Wayne, District Attorney, for appellee. Judgment affirmed. Quillian, C. J., Deen, P. J., McMurray, P. J., Shulman, P. J., and Sognier, J., concur. Banke, Carley and Pope, JJ., dissent.