Booker, In re

• Citation: 195 Ga.App. 561,394 S.E.2d 791
• Decision Date: 09 May 1990
• Docket Number: A90A0712,Nos. A90A0329,s. A90A0329
• Parties: In re BOOKER (Two Cases).
• Court: Georgia Court of Appeals

Page 791

394 S.E.2d 791

195 Ga.App. 561

In re BOOKER (Two Cases).

Nos. A90A0329, A90A0712.

Court of Appeals of Georgia.

May 9, 1990.

James Booker, pro se.

Dwight L. Thomas, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

James Booker, an attorney licensed to practice in this State, appeals from an order of the Superior Court of Clayton County finding him in contempt of Court. It appearing that case nos. A90A0329 and A90A0712, filed and docketed separately because of an error of the trial court clerk, present the same matters for review, the two appeals are consolidated in this opinion. We now affirm.

The record reveals that on Monday, May 8, 1989, appellant appeared before Judge William H. Ison at a calendar call in Clayton County Superior Court as attorney for a criminal defendant. Appellant announced ready for trial, but informed the court that if his case was not reached on that day he would be ready for trial again on Wednesday, May 10, 1989, asking to be excused on Tuesday, May 9, 1989, because of his tentatively scheduled meeting that day in Milledgeville with several out-of-state prosecutors in regard to a federal matter. Judge Ison instructed appellant to remain in the courtroom and check back with him at the conclusion of the calendar call, when the court would have a better idea of which cases would actually be tried and where appellant's case would fall on the calendar. Judge Ison then proceeded with the calendar call, and at its conclusion inquired as to the whereabouts of appellant, but appellant had left and could not be located.

It is uncontroverted that appellant left Judge Ison's courtroom on Monday, May 8, 1989, and made preparations to go to Milledgeville. Appellant actually departed Atlanta late Monday night or early Tuesday morning, driving a Rolls Royce automobile he had recently purchased. The meeting in Milledgeville was concluded at about 3:00 p.m. on Tuesday. However, having noticed a problem with the brakes, appellant decided to drive the Rolls Royce to a dealer in Hilton Head, South Carolina for repair, although he had purchased the car from an Atlanta dealer. Appellant drove to Hilton Head from Milledgeville without informing his office. Upon his arrival that evening he was informed that the dealership could make no repairs until the next day.

Appellant's client's case was not reached on Monday, May 8th, or Tuesday, May 9th, but Tuesday afternoon Judge Ison's secretary called appellant's office and notified appellant's secretary that appellant's client's case would be reached at 9:00 a.m. Wednesday. Appellant's secretary, still thinking appellant was in Milledgeville, said she would try to reach him, but was unable to do so. Appellant's case was called for trial in Judge Ison's courtroom on Wednesday morning. Appellant was not present, but the defendant, the prosecutor, and several jury panels were there ready to proceed with the case, and an employee of appellant's office, apparently still unaware that appellant was in Hilton Head, was present and informed the court that appellant had been detained on a federal matter in Milledgeville. Judge Ison also called appellant's office and was told simply that appellant was not in. When appellant finally contacted his office late Wednesday morning and was apprised of the problem, he called Judge Ison from Hilton Head, where his car was still being repaired. Judge Ison informed appellant during that telephone conversation that he would hold the case for trial until 1:30 p.m., and ordered appellant to be present. When appellant responded that it was impossible for him to be there at that hour, Judge Ison informed him that a warrant would be issued for his arrest, whereupon Judge Ison issued an attachment for contempt.

Appellant did not appear before Judge Ison either at 1:30 on Wednesday or for more than a week thereafter, but filed a notice of appeal from Judge Ison's order of attachment, seeking emergency relief from this court. We dismissed that appeal for want of jurisdiction on May 17, 1989. On May 19, 1989, nine days after the attachment was issued, appellant presented himself to Judge Ison, who set a rule nisi for the following month on a petition for contempt drawn by the prosecutor, and ordered that appellant be booked and released upon payment of a $1,000 appearance bond. Appellant spent approximately three hours in jail.

Appellant filed a motion to recuse Judge Ison from presiding over the contempt hearing, which was granted, and on July 13 and 14, 1989, a hearing on the petition for contempt was held before Judge Stephen E. Boswell in Clayton Superior Court. Both appellant and the State presented extensive evidence. Judge Ison and appellant testified, giving sharply conflicting testimony about the events on May 8th, the day of the calendar call, particularly as to whether appellant ever spoke with Judge Ison privately and received permission to leave the courtroom, but agreeing about the facts concerning the telephone call on May 10th. Judge Boswell entered an order on August 22, 1989, finding appellant in contempt of court and allowing appellant to purge himself of contempt "by abiding by the Orders of the Judges of the Courts of this State and conduct[ing] himself honestly, justly and uprightly demean[ing] himself as an attorney, counselor and solicitor of the Courts of this State from this day forward."

1. In three enumerations of error, appellant contends it was error for Judge Ison to issue an attachment for contempt without first scheduling a hearing, because the contumacious conduct complained of was an indirect, rather than a direct, contempt, and thus violated his right to due process. We find no merit in this contention and we find that the procedure followed sub judice more than comported with the required due process.

In view of the evidence that two jury panels and all parties other than appellant were present in the courtroom on May 10th ready to try the case and were unable to proceed because of appellant's absence, there is no question that appellant's refusal to appear when ordered to do so interfered with the functioning of the court and the administration of justice. See Shafer v. State, 139 Ga.App. 360(2), 228 S.E.2d 382 (1976). "[C]ourts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions." Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Moreover, appellant had, within the actual sensory perception of Judge Ison, i.e., in the May 10th telephone conversation, failed to comply with a direct order of the judge to appear for trial at a certain time, which conduct constituted a direct contempt. See Johnson & Reaves, Contempt of Court in Ga., 23 Ga.St.B.J. 66, 68 (1986). Accordingly, Judge Ison would have been justified in punishing that contumacious conduct summarily and without a hearing. " 'It is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred....' [Cit.]" Garland v. State, 99 Ga.App. 826, 831(2), 110 S.E.2d 143 (1959). Because summary punishment would have been proper, we cannot agree with appellant that the procedure used here, which afforded him written notice and a hearing lasting several days at which extensive evidence was introduced, offended the requirements of due process. Appellant complains of the fact that he was arrested and required to post an appearance bond. Although we do not condone their routine use, under the circumstances present here we find those measures justified by appellant's unexplained (or misleadingly explained) absence and his failure to turn himself in and appear before Judge Ison for nine days during which he knew the attachment was outstanding.

2. Appellant characterizes his arrest and the three-hour period he spent in jail during the booking process as "punishment," and claims that the trial court erred by denying...