In re Johnson

• Decision Date: 30 June 2022
• Docket Number: A22A0608
• Citation: 364 Ga.App. 646,875 S.E.2d 844
• Parties: IN RE Francys JOHNSON.
• Court: Georgia Court of Appeals

364 Ga.App. 646

875 S.E.2d 844

IN RE Francys JOHNSON.

A22A0608

Court of Appeals of Georgia.

June 30, 2022

Mawuli M. Malcolm Davis, Decatur, S. Lester Tate III, Cartersville, Bo Ryan Coram, for Appellant.

Barnes, Presiding Judge.

Attorney Francys Johnson appeals from a criminal contempt order entered by Judge Michael T. Muldrew of the Superior Court of Bulloch County. For the reasons that follow, we reverse.

The following circumstances culminated in the contempt holding. While presiding over the second day of an immunity-from-prosecution hearing in a felony murder case,¹ Judge Muldrew determined that Johnson, the lead defense lawyer, was in contempt of court for failing to heed his demands to be handed a notebook that the judge's assistant had provided to Johnson. The judge had intended for his assistant to give the notebook to the prosecutor, not to defense counsel. When the judicial assistant gave Johnson the notebook, Johnson and the other defense lawyers thought that the notebook contained certain school records that the prosecution had provided the judge the previous day for an in camera inspection. Upon reviewing the contents of the notebook, however, defense counsel discovered that the notebook contained emails between their client and others, which emails had been sent and received by their client while he was being held in jail awaiting trial.

This was significant, defense counsel believed, because those emails had not been provided to defense counsel during discovery, yet the prosecution had provided them to the trial judge, ex parte, without defense counsel having any knowledge of their existence. When the hearing recommenced (at 9:00 that morning), Judge Muldrew did not mention to the defense what had occurred. The judge instead sent his judicial assistant to give the notebook back to the prosecution.

The contempt ruling came about toward the end of the morning session. Judge Muldrew announced that he would be recessing the hearing, during which time he would be attending a funeral. Johnson asserted, "I have one more thing we need to put on the record before we break," but in light of time constraints, "we can put it on the record afterwards, but I'm going to give [a notebook] that has been given to us by [Judge Muldrew's judicial assistant] to the Clerk to hold for a chain of custody, and then we'll address it when we come back." The judge responded, "Well, hand me that because [my judicial assistant] gave it to the wrong people." When Johnson again asserted that he would instead hand the notebook to the clerk, the judge admonished, "[Y]ou're going to go to jail if you don't hand that to the bailiff." Without affording Johnson an opportunity to be heard, Judge Muldrew commanded the bailiff(s) to take Johnson into "that room" and bring back the notebook. The bailiff(s) complied, returned to the courtroom without Johnson, and handed the notebook in question to the judge. The judge announced, "I will hand it to the clerk." Before finally recessing the hearing, the judge revealed, "Johnson is going to stay in there until I come back at 2:00, and we may address it then or we may address it later."

During the recess, the defense lawyers filed motions for Judge Muldrew's recusal from both the contempt matter and the underlying criminal (felony murder) case. Later that day, at 4:59 p.m., Judge Muldrew entered the order now on appeal, stating:

[This felony murder] case came before the Court for an immunity hearing on September 23, 2021. At the immunity hearing Francys Johnson, counsel for the Defendant, was directed to turn over a notebook to the court that was provided to defense counsel in error. Mr. Johnson refused and was summarily found in direct criminal contempt of court, and was removed from the courtroom by bailiffs and incarcerated in a holding cell at the courthouse. Prior to the court being able to hold a hearing on the contempt Mr. Johnson filed a Motion to Recuse in both the [felony murder] case and in the contempt matter. [I]t is hereby ordered that Francys Johnson is to be released from custody immediately upon the entry of this order pending a hearing on the Motion to Recuse.²

Johnson challenges the propriety of the contempt adjudication.³ Procedurally, he contends that he was denied due process. Substantively, he contends that the finding of contempt lacked the requisite quantum of evidentiary proof; that in seeking to hand the notebook to the clerk to preserve the record and the chain of custody, he was merely doing his job and zealously representing his client; and that the record does not show that he made any attempt to thwart justice, particularly since the trial judge himself gave the notebook – as Johnson puts it – "to the very same clerk for the very same reasons" after the notebook was taken from Johnson by the bailiff. Johnson posits, "Had the notebook not been inadvertently given to ‘the wrong people,’ the defense may never have known of its existence until trial."⁴

1. As an initial matter, we note that Johnson alluded in his "Extraordinary Motion to Vacate Order of Contempt"⁵ that Judge Muldrew failed to fully comply with governing Uniform Superior Court Rule (USCR) 25.3.⁶ See Mondy v. Magnolia Advanced Materials , 303 Ga. 764, 766 (2), 815 S.E.2d 70 (2018) ("The formal procedures governing recusal of superior court judges are found in USCR 25.") (citation and punctuation omitted). Johnson did not raise such issue, however, in his enumeration of errors; hence, we do not reach that issue. See generally Mims v. State , 310 Ga. 853, 854, n. 2, 854 S.E.2d 742 (2021) (reiterating that "an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of errors") (citation and punctuation omitted); Hoke v. State , 326 Ga. App. 71, 74 (2), 755 S.E.2d 876 (2014) (noting that the recusal issue was waived where not timely presented).

We turn to the claims of error duly raised by Johnson in this appeal.

2. Johnson's procedural attack, that the contempt ruling was made without due process, is supported by longstanding precedents.

Decades ago, in Dowdy v. Palmour , 251 Ga. 135, 304 S.E.2d 52 (1983), the Supreme Court of Georgia recited that "a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf , to announce punishment summarily and without further notice or hearing." (Emphasis supplied.) Id. at 141-142 (2) (b), 304 S.E.2d 52. Thereafter, in Ramirez v. State , 279 Ga. 13, 608 S.E.2d 645 (2005), the Supreme Court instructed:

The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court's presence (direct contempt) or are committed out of the court's presence (indirect contempt). If the contempt is direct, a trial court has the power, after affording the contemnor an opportunity to speak in his or her own behalf , to announce punishment summarily and without further notice or hearing.

(Footnotes and punctuation omitted; emphasis supplied.) Id. at 14 (2), 608 S.E.2d 645. More recently, in Cousins v. Macedonia Baptist Church of Atlanta , 283 Ga. 570, 575 (1), 662 S.E.2d 533 (2008), our high Court reiterated:

Though a court clearly has the authority to hold a party summarily in contempt when necessary to preserve order in the courtroom, even such summary contempt power requires that the contemnor be "afford[ed] ... the opportunity to speak in his or her own behalf." Dowdy v. Palmour , 251 Ga. 135, 142 (2), 304 S.E.2d 52 (1983). Accord Taylor v. Hayes , 418 U.S. 488, 498 (II), 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) ("[e]ven where summary punishment for contempt has been imposed during trial, ‘the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.’ [Cit.]").

(Emphasis supplied.) Cousins , 283 Ga. at 575 (1), 662 S.E.2d 533. Similarly, this Court has recognized,

[A]lthough the trial judge has the authority to summarily punish for contemptuous conduct committed in his or her presence, due process requires that such punishment cannot be meted out until the contemnor is given reasonable notice of the charge and an opportunity to be heard. That is because of the heightened potential for abuse posed by the contempt power.

(Citations and punctuation omitted.) In re Williams , 347 Ga. App. 189, 191-192, 818 S.E.2d 260 (2018).

Here, the trial judge imposed upon Johnson the sanction of jail time, without having first afforded him meaningful opportunity to defend himself against the trial judge's conclusion that his conduct was contemptuous. See Coleman v. State , 269 Ga. App. 827, 827-828, 605 S.E.2d 424 (2004) (holding that even though the appellant had refused to comply with the trial judge's repeated demand, summary contempt adjudication was not authorized because the appellant was not given an opportunity to speak or explain why he should not be held in contempt). We note that the hearing transcript captures Johnson's subsequent utterances, "I want to put it on the record ... I want a chain of custody about it ... I want a chain of custody of custody about it[.]" But by that point, the judge had already meted out punishment, and Johnson was accordingly being ushered from the courtroom and to a cell by the bailiff(s). The transcript shows that when the bailiff(s) returned to the courtroom and the judge regained possession of the notebook, Johnson's co-counsel urged that "Johnson be released to return to representation." The judge denied the request, responding that "[w]hat he did was contempt of court" and that Johnson "will have to remain in there until such time as he purges himself from his contempt. But right now, I've got a funeral I have to go to." The...