Dowdy v. Palmour

298 S.E.2d 521, 164 Ga. App. 804, 1982 Ga. App. LEXIS 3347
CourtCourt of Appeals of Georgia
DecidedNovember 30, 1982
Docket63989; 63990
StatusPublished
Cited by8 cases

This text of 298 S.E.2d 521 (Dowdy v. Palmour) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowdy v. Palmour, 298 S.E.2d 521, 164 Ga. App. 804, 1982 Ga. App. LEXIS 3347 (Ga. Ct. App. 1982).

Opinions

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]*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]*806diligently 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.

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Bluebook (online)
298 S.E.2d 521, 164 Ga. App. 804, 1982 Ga. App. LEXIS 3347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowdy-v-palmour-gactapp-1982.