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

Page 560

264 S.E.2d 560

153 Ga.App. 82

In re BROOKINS.

No. 58477.

Court of Appeals of Georgia.

Argued Sept. 25, 1979.

Decided Jan. 15, 1980.

Ernest D. Brookins, Atlanta, for appellant.

William F. Lee, Jr., Dist. Atty., Marc E. Acree, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

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. Lee: Yes, sir. I would like to set the drug case first for Monday. The Court: Ready, Mr. Brookins? Mr. Brookins: No." Mr. Brookins requested a continuance to prepare motions for the drug case. The court ruled: "Case 3841 (drug case) set for Wednesday morning at 9:00 o'clock . . . How about the armed robbery? Mr. Lee: Set it for Thursday, 9:00 o'clock, Mr. Brookins: Judge, could I please not try the two cases back to back? The Court: We won't do that."

The trial calendar was called before Judge Jackson on March 19, 1979. Mr. Brookins stated: "For some reason the district attorney asked that the drug case be tried first and I got a commitment from Judge Knight that I wouldn't be required to try the cases back to back. So, I have prepared for trial the drug case." Mr. Kam the Assistant District Attorney, stated: "They're not going to be tried back to back. We're taking them in order as they are on the trial calendar and the drug case is first, and we're prepared to try the drug case first. The Court: Alright. We'll take it, do it that way then the way it's on the calendar. Mr. Brookins: My understanding now is that I can't try and prepare and, prepare two cases at the same time? Mr. Kam: That's correct. There was a promise made from the bench that he would not have to try them back to back."

On March 22, 1979, Mr. Brookins appeared for Chatham's trial, but Mr. Lee sounded the armed robbery case for trial. Mr. Brookins stated: "Judge, Mr. Chatham was charged with two felonies. At the call of the calendar, the district attorney asked that the drug case be tried first and it was agreed, and unless that would be the first case tried and I have my witnesses and my motion. Everything has been done in the drug case. Mr. Lee: I didn't agree to any such thing." Mr. Brookins explained: "Judge, I've got the witnesses subpoenaed for one case because the district attorney told me that I had to try it. Now, you've told me that The Court: You know, I'm getting ready to put you in jail. I've done heard enough. You open your mouth one more time to this Court, and you are going to jail."

After the jury was selected, Mr. Brookins stated: "Judge, with all due respect to the Court, in order for Randy Chatham to have an effective assistance of counselling from me, to defend him against this serious charge (Armed robbery life imprisonment authorized) I need to protect the record, and I beg the Court to allow me a moment to do that. The Court: What is it you are talking about, Mr. Brookins? . . . Mr. Brookins: Judge, the district attorney has had me to prepare out of context a defense in a drug case which I have several witnesses here and prepared. Now, at the last moment, has he said I've got to try a case that I'm not prepared to try. I need to perfect the record . . . The Court: Well, you've perfected the record all you can, or you can sit down and try the case. Do you understand it? Mr. Brookins: Yes sir. I cannot try the case at which time I'm not prepared to try it. I'm prepared to try another case that Mr. Lee insisted upon for me to be prepared. Mr. Lee: Your Honor, please, he is not telling the truth, telling the Court the truth. That's not right . . . The Court: We don't give lawyers special privileges in this Court. We try the case. They're supposed to come up here prepared. You're the one that came down in this Circuit and have collected or have accepted a fee to represent this man. I didn't do it . . . Mr. Lee: If your Honor, please . . . Is the Court going to run the Court, or is he going to run the Court? . . . Mr. Brookins: (Responding) Judge, in all due respect to the Court, I have to respectfully insist that I perfect the record in order for Randy Chatham's rights to be preserved. The Court: Alright . . . Mr. Brookins: The district attorney announced that the case, the drug case, would be tried first . . . Mr. Lee: That's not true. I state in my place that's not true . . . Mr. Brookins: I have eight (8) witnesses in the drug case that are here . . . I have two of the doctors here, two doctors, and I am prepared to try that case. It comes as a surprise to me. I do not have my briefs. I don't have my instructions to the Jury. I don't have my subpoenas out. I'm totally unprepared to try the armed robbery case. I don't know why at this late moment that Mr. Lee has changed his mind." "The Court: You've said enough . . . Now I'm overruling your motion. You have a seat right there and let the jury come back. Mr. Brookins: (Pausing). The Court: I'm warning you now, one more argument to this Court, I'm going to hold you in contempt. You're going to go to jail. And, you're going to conduct yourself like you ought to be. Do you understand? Mr. Brookins: Yes sir. The Court: I've done put up with you all I want to. Is there anything else you want to say? Mr. Brookins: (Pausing). The Court: Alright, Let the jury come back. Mr. Brookins: (Pausing). Judge, I just can't carry on this case." 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 "criminal contempt involves some 'disrespectful or contumacious conduct towards the court.' Davis v. Davis, 138 Ga. 8(1-b), 74 S.E. 830." 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....