Brookins, In re
Decision Date | 15 January 1980 |
Docket Number | No. 58477,58477 |
Citation | 264 S.E.2d 560,153 Ga.App. 82 |
Parties | In re BROOKINS. |
Court | Georgia Court of Appeals |
Ernest D. Brookins, Atlanta, for appellant.
William F. Lee, Jr., Dist. Atty., Marc E. Acree, Asst. Dist. Atty., for appellee.
The appellant attorney, Mr. Brookins, was held in contempt of court during his representation of a criminal defendant. He was sentenced to 10 days in jail and to payment of a $975 fine, whereupon he filed this appeal. The lower court declined to set an appeal bond, making it necessary for this court to grant supersedeas in order to prevent the appeal from becoming moot before it could be decided.
Mr. Brookins was employed by Randy Chatham to represent him in an armed robbery case. (Indictment No. 3816.) One week later he learned the defendant had subsequently been indicted on a drug charge. (Indictment No. 3841.) On the following day he appeared before Judge Knight for arraignment of the defendant on both charges. The state was represented by Mr. Lee, District Attorney. Mr. Brookins requested a continuance to prepare motions for the drug case. The court ruled:
The trial calendar was called before Judge Jackson on March 19, 1979. Mr. Brookins stated: Mr. Kam the Assistant District Attorney, stated:
On March 22, 1979, Mr. Brookins appeared for Chatham's trial, but Mr. Lee sounded the armed robbery case for trial. Mr. Brookins stated: Mr. Brookins explained:
After the jury was selected, Mr. Brookins stated: The court then held counsel in contempt.
While in full support of the inherent power (Atlanta Newspapers v. State of Ga., 216 Ga. 399(1), 116 S.E.2d 580) and statutory authorization of a trial court to summarily punish for contempt acts of attorneys committed in their presence which are in violation of Code Ann. § 24-105 (see Crudup v. State, 218 Ga. 819, 130 S.E.2d 733), under the totality of the circumstances of this case the finding of criminal contempt can not be approved.
Under Code Ann. § 24-105, the power of the court to punish for contempt "shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice . . ." Our appellate courts have also held that Code Ann. § 24-105 does not restrict the inherent power of the court to punish for contempt, but Vines v. State, 69 Ga.App. 175, 177, 24 S.E.2d 864, 865; Clark v. State, 90 Ga.App. 330(2), 83 S.E.2d 45; Farmer v. Holton, 146 Ga.App. 102, 245 S.E.2d 457. It is clear that the alleged contemnor's conduct did not violate the proscription of Code Ann. § 24-105. The contemnor's deportment was at all times courteous and respectful. Conversely, he was threatened with confinement early in the proceedings without any showing of contempt. He was, contrary to the record before us referred to by the district attorney as failing to state the truth on more than one occasion.
The defendant was entitled to have his case called in the proper order i. e. the armed robbery case first and then the drug case (Code Ann. § 27-1301 (Code § 27-1301)) but the record shows: at the arraignment Mr. Lee, District Attorney, stated that he wanted to try the drug case first out of order; the defendant then requested that the cases not be tried "back to back"; the court then agreed to the defendant's request that he would not have to try the two cases back to back; on March 19, 1979 when the calendar was called this arrangement was confirmed by the assistant district attorney and the court.
The defendant then went to court on March 22 with direction from the court and the district attorney's office that the drug case would be tried on that date. When the defendant appeared for Chatham's trial the district attorney sounded the armed robbery case for trial. The defendant then stated that he was totally unprepared to try the armed robbery case and when he attempted to explain to Judge Jackson what the record clearly shows, he was threatened with contempt and the district attorney stated that the defendant was not telling the truth. Further, the trial court after a second threat of a contempt citation, asked him if "there was anything else you want to say?" The record shows Mr. Brookins paused and then responded. For his reply he was held in contempt.
The finding of an abuse of the discretionary authority of the trial court has several bases. First, the...
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Ayers v. State
... ... In argument there is no reliance on due process but instead on the principle of In re Brookins, 153 Ga.App. 82, 264 S.E.2d 560 (1980), that the court should uphold an agreement as to the order of disposition of the criminal charges ... At the time the cases were called defense counsel objected, but no request for a continuance was made. In any event, a tape of ... ...
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In re Jefferson
... ... 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434 [284 Ga. App. 883] ... (1962). Accord In re Brookins, 153 Ga. App. 82, 264 S.E.2d 560 (1980). See also In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972) ... (Emphasis supplied.) Id., at 638, 309 S.E.2d 907. See also In re Bryant, 188 Ga.App. 383, 384-386(2), 373 S.E.2d 74 (1988). Jefferson's two statements must be ... ...
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Norred v. Moore
... ... Ga. Bd. of Dental Examiners, 214 Ga. 560, 564(2), 105 S.E.2d 732 (1958) (procedure failed to comport with due process where notice failed to apprise respondent of the acts which he was charged with committing in violation of an injunctive order); In re Brookins, 153 Ga. App. 82, 87, 264 S.E.2d 560 (1980) (procedure failed to comport with due process where "the thing ordered to be done [was not] within the power of the person against whom the order [was] directed") (citation and punctuation omitted); Martin v. Waters, 151 Ga. App. 149, 150(2), 259 S.E.2d ... ...
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Chatham v. State
... ... But, argues appellant, other alternatives were available to the trial court, such as trying the drug case first or granting a continuance to permit defense counsel time to prepare for this case. It is apparent from reading the transcript of In re Brookins, 153 Ga.App. 82, 264 S.E.2d 560 (1980) that the trial court was adamant in its insistence that the armed robbery case be tried on March 22, 1978 and no continuance would ... be granted, even though the defense counsel informed the court that he was ready to proceed with the drug case. Further, ... ...
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9 Contempt
...[In re Hadaway, 290 Ga.App. 453, 659 SE2d 863 (2008)]; D. Accused was able to comply but wilfully refused to do so [In Re: Brookins, 153 Ga.App. 82, 264 SE2d 580 (1980); A.H. Robins Co. v. Fadely, 299 F2d 557 (5th Cir., 1962); In re Hadaway (lack of wilfulness found on appeal)]. NOTE - Viol......
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9 Contempt
...[In re Hadaway, 290 Ga.App. 453, 659 SE2d 863 (2008)]; D. Accused was able to comply but wilfully refused to do so [In Re: Brookins, 153 Ga.App. 82, 264 SE2d 580 (1980); A.H. Robins Co. v. Fadely, 299 F2d 557 (5th Cir., 1962); In re Hadaway (lack of wilfulness found on appeal)]. NOTE - Viol......
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9 Contempt
...[In re Hadaway, 290 Ga.App. 453, 659 SE2d 863 (2008)]; D. Accused was able to comply but wilfully refused to do so [In Re: Brookins, 153 Ga.App. 82, 264 SE2d 580 (1980); A.H. Robins Co. v. Fadely, 299 F2d 557 (5th Cir., 1962); In re Hadaway (lack of wilfulness found on appeal)]. NOTE - Viol......
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9 Contempt
...[In re Hadaway, 290 Ga.App. 453, 659 SE2d 863 (2008)]; D. Accused was able to comply but wilfully refused to do so [In Re: Brookins, 153 Ga.App. 82, 264 SE2d 580 (1980); A.H. Robins Co. v. Fadely, 299 F2d 557 (5th Cir., 1962); In re Hadaway (lack of wilfulness found on appeal)]. NOTE - Viol......