State Grand Jury Act
THIS OPINION HAS NO PRECEDENTIAL
VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State,
Respondent,
v.
Kenneth E. Sowell,
Appellant.
Appeal From Greenwood County
Wyatt T. Saunders, Jr, Circuit Court
Judge
Unpublished Opinion No. 2005-UP-122
Heard November 10, 2004 Filed February
17, 2005
AFFIRMED
Kenneth E. Sowell, of Greenville, pro se, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John M. McIntosh, Chief, State Grand Jury, Sherri A. Lydon, and Assistant
Attorney General Jennifer D. Evans, all of Columbia, for Respondent.
PER CURIAM: Kenneth Sowell appeals the
circuit courts order finding him in criminal contempt for disclosing grand
jury information subject to a protective order. We affirm.
FACTS
The State Grand Jury conducted an investigation
into a methamphetamine ring in Greenville, Greenwood, and Laurens counties.
As a result of this investigation, the grand jury true-billed an indictment
against Bobby Joe Lewis for trafficking and conspiracy to traffic methamphetamine.
After being charged, Lewis hired Sowell to represent him on the charges. Sowell
came into contact with Lewis through Kenneth Curtis, who was also a target of
the investigation and previously a client of Sowell. According to Curtis,
he paid Sowell to represent Lewis with the understanding that if Lewis intended
to flip, Sowell would let him know.
In the course of his representation of Lewis, Sowell
requested that the Attorney Generals office provide him with information that
was part of the grand jury investigation. Because the Legislature has
deemed this information to be secret, its dissemination is governed by the provisions
of section 14-7-1720 of the South Carolina Code of Laws. S.C. Code Ann. § 14-7-1720(A)
(Supp. 2004) (State grand jury proceedings are secret, and a state grand juror
shall not disclose the nature or substance of the deliberations or vote of the
state grand jury.); see Anderson v. State, 338 S.C. 629, 632,
527 S.E.2d 398, 399 (Ct. App. 2000) (recognizing this states long-held policy
regarding the secrecy surrounding grand jury proceedings).
Pursuant to this statute, the Attorney General
may not disclose the testimony of a witness examined before a state grand jury
or other evidence received by it except when directed by a court for the purpose
of . . . providing the defendant the materials to which he is entitled pursuant
to Section 14-7-1700. S.C. Code Ann. § 14-7-1720(A)(4)(Supp. 2004); see
S.C. Code Ann. § 14-7-1700 (Supp. 2004) (Subject to the limitations of Section
14-7-1720(A) and (D) and Rule 5, South Carolina Rules of Criminal Procedure,
a defendant has the right to review and to reproduce the stenographically or
electronically recorded materials.). If the court orders disclosure of matters
occurring before a state grand jury, the disclosure must be made in that manner,
at that time, and under those conditions as the court directs. S.C. Code Ann.
§ 14-7-1720(A) (Supp. 2004).
In this case, the judge issued a protective order
that permitted the dissemination of the grand jury information to Sowell, but
imposed certain conditions on the disclosure. The order provides in relevant
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 attorney 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. All such materials
shall be completely destroyed at the conclusion of the case.
Nothing in this Order prohibits the defendants or their attorneys
from using Brady material for purposes of preparing for trial.
The relevant materials were made available to Sowell
after the protective order was signed. Sowell admits the information was shared
with Gene Gore, a private investigator Sowell had employed numerous times.
Sowell testified he informed Gore that the information he was sharing with him
could not be given to anyone and the documents must be kept under lock and
key at all times.
Significantly, Gore also sold used cars, and Kenneth
Curtis had previously purchased five or six cars from him. It was ultimately
revealed that Curtis paid Gore for his investigative services. A portion of
the evidence subject to the court order led to another member, Floyd Ballew,
of the methamphetamine ring who implicated Curtis. Gore found Ballew and had
him sign an affidavit to this affect. Gore then used this affidavit to confront
Curtis in an attempt to acquire information.
This disclosure of information by Gore to Curtis
was revealed when Curtis was caught on a confidential informants tape stating
he was aware he was the subject of the State Grand Jury investigation. Based
on this information, the State filed a motion for Sowell to show cause why he
was not guilty of criminal contempt.
After a hearing, the trial judge found Sowell guilty
of criminal contempt of court for willfully disclosing information subject to
a protective order. Specifically, the judge held the State clearly established
that [Sowell] was not directed by the Court to release this information to Gore
nor did he explain the secrecy requirement of the Protective Order. The
judge sentenced Sowell to ninety days imprisonment suspended upon the payment
of a $5,000 fine within ninety days. Subsequently, Sowell filed a motion for
reconsideration. The judge denied this motion, but reduced the amount
of the fine to $2,500.
Sowell appeals his conviction of criminal contempt
of court.
STANDARD OF REVIEW
A determination of contempt ordinarily resides
in the sound discretion of the trial court. Whetstone v. Whetstone,
309 S.C. 227, 233, 420 S.E.2d 877, 880-81 (Ct. App. 1992). This court will
reverse a trial courts decision regarding contempt only if it is without evidentiary
support or is an abuse of discretion. An abuse of discretion can occur where
the trial courts ruling is based on an error of law. First Union Natl
Bank v. First Citizens Bank & Trust Co. of South Carolina, 346 S.C.
462, 466, 551 S.E.2d 301, 303 (Ct. App. 2001) (citations omitted).
DISCUSSION
Sowell argues the circuit court judge erred in
finding him in criminal contempt.
[1] He contends he was permitted to reveal grand jury information to his
investigator and, thus, there was no evidence to support the judges decision.
We disagree.
The power to punish for contempt is inherent in
all courts and is essential to the preservation of order in judicial proceedings.
In re Diggs, 344 S.C. 434, 434, 544 S.E.2d 632, 632 (2001). A courts
contempt power arises when an individual willfully disobeys an order of the
court. Id. 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. Spartanburg County
Dept of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874
(1988) (quoting Blacks Law Dictionary 1434 (5th ed. 1979)). Intent
for purposes of criminal contempt is subjective, not objective, and must necessarily
be ascertained from all of the acts, words and circumstances surrounding the
occurrence. State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213,
217 (Ct. App. 1994).
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 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). [B]efore a person may be held
in contempt, the record must be clear and specific as to acts or conduct upon
which such finding is based. State v. Harper, 297 S.C. 257, 258, 376
S.E.2d 272, 274 (1989).
As a threshold matter, we note that Sowell neither
challenges the validity of the order nor the application of section 14-7-1720
to him. [2] Therefore, we do not analyze this issue.
Instead, he admits disclosure of the material to his investigator, but claims
this disclosure did not violate the protective order.
Section 14-7-1700 grants a defendant the right
to review and reproduce grand jury material. This right is limited by the strictures
of sections 14-7-1720(A) and (D), as well as Rule 5 of the South Carolina Rules
of Criminal Procedure. Section 14-7-1720(A) requires that the disclosure to
the defendant must be made in that manner, at that time, and under those conditions
as the court directs. By the terms of the order, the judge imposed on Sowell
the same secrecy provisions that are applicable to the Attorney General under
section 14-7-1720(B). [3] Therefore, if Sowell intended
to disclose this information to Gore in order to prepare an adequate defense
for Lewis, he was bound by the mandatory language of section 14-7-1720(B)(2),
which provides in pertinent part:
The Attorney General or his designee promptly shall provide
the presiding judge before whom was impaneled the state grand jury whose material
has been disclosed, the names of the persons to whom the disclosure has been
made, and shall certify that he has advised these persons of their obligation
of secrecy under this section.
S.C. Code Ann. §14-7-1720 (B)(2) (Supp. 2004). [4]
Applying these provisions to the instant case,
we hold the judges decision was not based on an error of law given he relied
on the appropriate legal standards for a finding of contempt. In determining
Sowell willfully violated the protective order, the judge found the State presented
clear and specific evidence of Sowells conduct and that Sowell was guilty beyond
a reasonable doubt.
Furthermore, the trial judge sat as the trier of
facts. Thus, based on our limited standard of review, we will not disturb his
findings unless they are without evidentiary support. We find there is evidence
to support the judges ruling. First, there is no dispute that Sowell failed
to inform the court that he disclosed the grand jury material to Gore until
prompted by the States motion for a rule to show cause. In terms of the second
requirement under section 14-7-1720(B)(2), the judge concluded Sowell failed
to explain to Gore the obligation of secrecy. In support of this ruling, the
judge implicitly rejected the testimony of Sowell and, instead, found Gore and
Curtis to be credible witnesses. We give due deference to the trial judges
consideration of credibility matters. See Cherry v. Thomasson,
276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981) (On appeal, this court is not
required to ignore the fact that the trial judge, who saw and heard the witnesses,
was in a better position to evaluate their credibility and assign comparative
weight to their testimony.).
In his findings of fact, the judge stated Gore
testified, he was not given any instruction regarding the release of this information
to any other individuals from the Defendant. Additionally, Gore admits that
the information contained in this material was related to Mr. Kenny Curtis.
As to Curtis, the judge found that Curtis testified that he was kept apprized
throughout this investigation of the material that pertained to him and paid
Gore five thousand dollars ($5,000) to act as a private investigator for the
Defendant. These findings are supported by the testimony of Gore and
Curtis. Based on the specific facts of this case and our limited standard of
review, we hold the judge did not abuse his discretion in finding Sowell in
criminal contempt of the protective order.
This decision should not be interpreted
to mean that a defense attorney is precluded from disclosing state grand jury
material to his or her staff or investigator. This position, which the State
appeared to advocate at oral argument, would put defense counsel at a disadvantage
in that it would severely limit counsels ability to prepare an adequate defense.
However, if disclosure is permitted then defense counsel must abide by the conditions
imposed by a court pursuant to section 14-7-1720(A). By requiring defense counsel
to proceed through the proper channels, similar to the State, the court will
be able to preserve the sanctity of grand jury material.
CONCLUSION
Based on the foregoing, the circuit court judges
finding of criminal contempt is
AFFIRMED.
HUFF, KITTREDGE, and BEATTY, JJ., concur.
[1] We note Sowell raises five separate issues in his brief. Because
all of the issues challenge the finding of contempt, we have consolidated
them in the interest of clarity.
[2] The plain language of section 14-7-1720 applies only to jurors,
individuals involved in the state grand jury process, and law enforcement
personnel who are entitled to the information under subsection (B) based on
their assistance to the Attorney General. Therefore, the secrecy provisions
of section 14-7-1720 would not apply to Sowell unless the judge, as in this
case, limited the use of the information pursuant to the courts power to
condition the disclosure of information. S.C. Code Ann. § 14-7-1720 (A) (Supp.
2004).
[3] In the protective order, the judge only generally referenced the
secrecy provisions of section 14-7-1720. However, in the contempt
order, the judge specifically relied on subsection A when he concluded that
Sowell failed to obtain prior approval of the court before disclosing the
information. The judge also implicitly relied on subsection B in finding
that Sowell failed to explain to Gore the secrecy requirement of the protective
order. The judges reliance on subsection A would appear to be inapplicable
to Sowell given that subsection controls the initial disclosure to the Attorney
General and forms the basis for the protective order. Based on our review
of section 14-7-1720, we believe the procedure governing Sowells disclosure
of the grand jury information was controlled by section 14-7-1720(B)(2), which
does not require prior approval of the court. This error, as will be discussed,
does not affect our ultimate decision.
[4] We note that the language of our state statute is similar to that
of Rule 6(e)(3) of the Federal Rules of Criminal Procedure. See State
v. Follin, 352 S.C. 235, 246, 573 S.E.2d 812, 817 (Ct. App. 2002) (Federal
Rule of Criminal Procedure 6(e) is very similar to our statute regarding disclosure
of secret information to subsequent grand juries.). Despite the fact that
our statute tracks the language of the federal rule, our research has not
revealed any federal case law that provides definitive guidance on the issue
presented in this appeal. See Sara Sun Beale, et al., Grand
Jury Law and Practice §5:7 (2d ed. 2003), available in Westlaw,
GRJURLAW (In particular, it is not clear whether [Rule 6(e)(3)(A)(i)] permits
the attorney to make further disclosures of the grand jury materials to others.);
Id. ([T]he courts are not likely to accept any argument that disclosures
to private investigators assisting the prosecutors with a criminal case would
be permitted under the performance of duties clause since the same disclosure
would be barred by the more specific subsection of the Rule that governs disclosures
to agents assisting the government in the criminal case. By contrast, a prosecutors
disclosure of grand jury materials to his secretary, paralegal, or law clerk
would be regarded as routine disclosure closely tied to the prosecutors role
in conducting the grand jury proceeding and any subsequent criminal action.);
1 Charles Alan Wright, Federal Practice and Procedure § 107, at 398-400
(3d ed. 1999) ([M]achinery has now been provided by which federal prosecutors
can utilize, without a court order, other government personnel. The government
personnel to whom grand-jury material is disclosed under this provision cannot
use the material in a manner that would not be permissible for the government
attorney himself.). Given the divergent views analyzing this issue and the
fact that Sowell does not challenge the validity of the protective order,
we have chosen not to establish a bright line rule for a defense attorneys
disclosure of grand jury information. Instead, we limit our review of this
issue by applying the facts of the instant case to our state statutory language
within the context of our limited standard of review.