State v. Sowell

635 S.E.2d 81, 370 S.C. 330, 2006 S.C. LEXIS 271
CourtSupreme Court of South Carolina
DecidedAugust 14, 2006
Docket26199
StatusPublished
Cited by7 cases

This text of 635 S.E.2d 81 (State v. Sowell) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sowell, 635 S.E.2d 81, 370 S.C. 330, 2006 S.C. LEXIS 271 (S.C. 2006).

Opinions

Justice WALLER:

We granted a writ of certiorari to review the Court of Appeals’ opinion in State v. Sowell, Op. No.2005-UP-122 (Ct.App. filed Feb. 17, 2005). The Court of Appeals affirmed the circuit court’s holding that Sowell was in contempt for releasing grand jury information to his private investigator. We reverse.

FACTS

Sowell is an attorney who was hired to represent Bobby Joe Lewis, a criminal defendant who was indicted by the State [334]*334Grand Jury for trafficking methamphetamine. On March 4, 2002, the circuit court issued a protective order pursuant to S.C.Code Ann. § 14-7-1720 (Supp.2004), directing that any State Grand Jury material given to the defendants was being provided only for purposes of their trials, and that their attorneys were bound by the secrecy provisions of § 14-7-1720.1

Sowell hired a private investigator, Gene Gore, to look into the charges and to investigate how other witnesses would testify. According to Sowell, he had utilized Gore, who also worked as a used car salesman, numerous times in the past as a private investigator. Gore testified that he understood that he was acting as Sowell’s agent, or a paralegal, while conducting his investigations.

Sowell gave Gore the Grand Jury file information forwarded to him from the Attorney General’s office. At Sowell’s contempt trial, the assistant solicitor questioned Gore as to whether, when Sowell left this information with him, “did he give you any instructions about what to do or anything about grand jury material, anything like that?” Gore responded negatively. However, when questioned by Sowell as to whether he was warned by Sowell not to discuss the contents of the file with anyone, Gore responded:

A. The best I can recall, you handed me that box and you said, “These are statements that have been taken from the people in this case. I want you to look through them and go investigate the ones you feel are pertinent to the upcoming case.”
Q. And what did I tell you about disclosing the information from that file?
A. No, you told me to keep the box under lock and key at all times.

Sowell also testified he instructed Gore not to disclose the contents of the file or show it to anyone.

Lewis’ first trafficking trial, in April 2002, ended in a hung jury. During that trial, it became evident the state had [335]*335information that a man named Floyd Eugene Ballew, Jr., a/k/a Dooney, was supplying drugs to Lewis. It also became evident at the first trial that Lewis and Dooney’s supplier was a man named “Kenny,” or “KC,” from Greenville. Subsequent to the first trial, Dooney was added to the indictment as a co-conspirator in the trafficking ring. Dooney was arrested and, prior to Lewis’ second trial, Sowell met with him in the Laurens County jail and took an affidavit and statement from him. From his meeting with Dooney, Sowell concluded Kenneth Curtis was the “Kenny” or “KC” implicated in the first trial. Sowell therefore instructed Gore to talk to Curtis and ascertain the substance of his testimony if called as a witness at the second trial.

Kenneth Curtis was called as a witness by the state at the contempt hearing. Curtis testified that he had paid Lewis’ attorney fee to Sowell, and that Sowell allegedly advised Curtis he would let him know if Lewis was “going to flip on him.” Curtis testified he was kept advised of the on-going investigation by Gore. On cross-exam by Sowell, however, Curtis testified that he was never told about the contents of the Grand Jury file by Gore. Gore simply advised Curtis that his name was “all over the place” and that police were about to get him.

At the conclusion of the contempt hearing, the state asserted that the only basis upon which it was seeking a finding of contempt was that Sowell had released the Grand Jury file to Gore; the state specifically advised the court it was not alleging a contempt violation based upon any disclosure by Gore to Curtis.

The circuit court found Sowell in criminal contempt of the March 4, 2002 protective order, holding that he was not authorized to release the Grand Jury information to Gore, and that he had not explained the secrecy requirements of the protective order to Gore.

The Court of Appeals affirmed the contempt finding. It found Sowell had failed to inform the court that he had disclosed the Grand Jury information to Gore,'and had failed to explain to Gore the obligation of secrecy.

[336]*336ISSUE

Did the Court of Appeals err in affirming the finding of contempt?

DISCUSSION

Willful disobedience of an Order of the Court may result in contempt. Spartanburg County Dep’t of Social Svcs. v. Padgett, 296 S.C. 79, 370 S.E.2d 872 (1988). A willful act is defined as one “done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” Id. at 82-83, 370 S.E.2d at 874, citing Black’s Law Dictionary 1434 (5th Ed. 1979). However, “[o]ne may not be convicted of contempt for violating a court order which fails to tell him in definite terms what he must do.” Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E,2d 496, 498 (1973). In order to sustain a finding of contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based. Curlee v. Howle, 277 S.C. 377, 287 S.E.2d 915, 918 (1982). In a criminal contempt proceeding, the state has the burden of proving the guilt of the defendant beyond a reasonable doubt. State v. Bowers, 270 S.C. 124, 131, 241 S.E.2d 409, 412 (1978). A determination of contempt is within the sound discretion of the trial judge, but is subject to reversal where based on a finding that is without evidentiary support or where there has been an abuse of discretion. Pratt v. S.C. Dep’t of Social Svcs., 283 S.C. 550, 324 S.E.2d 97 (Ct.App.1984).

Here, the trial court’s protective order states, in pertinent part:

IT IS HEREBY ORDERED that the Attorney General is protected if he chooses to disclose to the attorneys for the defendants in the above-captioned cases testimony taken in the State Grand Jury and interviews of witnesses and other documents which must subsequently be disclosed under normal circumstances at trial. It is understood that the State Grand Jury material is being provided only for purposes of the trial of the above-captioned cases. The attor[337]*337ney for the defendants and the defendants are bound by the secrecy provisions of § 14-7-1720.
IT IS FURTHER ORDERED that, pursuant to S.C.Code Ann. §§ 14-7-1700 and -1720(A) (Law. Co-op. 1976), the defendants and their attorneys are prohibited from photocopying any State Grand Jury testimony, interviews of witnesses and any other documents that may be disclosed to the defendants and their attorneys in reference to the above-captioned case.

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State v. Sowell
635 S.E.2d 81 (Supreme Court of South Carolina, 2006)

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Bluebook (online)
635 S.E.2d 81, 370 S.C. 330, 2006 S.C. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sowell-sc-2006.