Spruell, In re, A91A0201

• Decision Date: 27 June 1991
• Docket Number: No. A91A0201,A91A0201
• Citation: 407 S.E.2d 451,200 Ga.App. 218
• Parties: In re SPRUELL.
• Court: Georgia Court of Appeals

Page 451

407 S.E.2d 451

200 Ga.App. 218

In re SPRUELL.

No. A91A0201.

Court of Appeals of Georgia.

June 27, 1991.

Brian M. Dubuc, Steven H. Sadow, Atlanta, for appellant.

Billy L. Spruell, pro se.

Albert Sidney Johnson, Lisa A. Foster, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Appellant Billy L. Spruell, attorney, appeals an order holding him in direct criminal contempt of court. Appellant was representing a client upon the trial of certain misdemeanor traffic offenses.

After voir dire, as counsel used the "silent strike" process customarily used for misdemeanor criminal cases in the DeKalb County State Court, the trial judge explained the procedure and other administrative matters to the jury panel. Thereafter, the following colloquy ensued: "MR. SPRUELL: Your Honor, may we approach the bench? THE COURT: Yes. (Whereupon, a sidebar conference was held off the record.) MR. SPRUELL: Judge, we are not getting it--THE COURT: Mr. Spruell, I said we would get it on the record after we pick the jury. Have a seat, Mr. Spruell, and take the strike. Have a seat, Mr. Spruell. MR. SPRUELL: Your Honor--THE COURT: Would you like to re-adjust your strikes? MR. SPRUELL: I have to go back and restrike the jury if this is the way--THE COURT: If you need time to re-adjust the strikes that you have already exercised, the Court will give you time to do that. MR. SPRUELL: All right. Judge, we were clearly told that I had four strikes and one strike--THE COURT: Excuse me, Mr. Spruell. I do not hear argument in the presence of the jury as you well know. I'm giving you extra time to re-adjust your strikes. You have approximately one minute to exercise your strike or you will forfeit that strike. Since you have five strikes, I will give you five minutes to re-adjust your strikes. (Whereupon, the strike process continued.)

"THE COURT: All right. Members of the panel, as I call your name it means that you have not been selected to serve as a juror during the trial of this particular case and because it is one day, one trial, you are released for the week. You do not have to phone in. If anyone has misplaced or used your parking ticket, please let me know and I can give you one because you do have to pay $2.00 if you leave the parking deck before six o'clock. Kim Wieloch, juror number seven, you are excused. Thank you very much for coming up. Robert Sherill, juror number ten, you are also excused. Thank you very much. Don't forget to let me know if you need a parking pass. Mike Daniel, juror number 12, thank you very much. Eric Grant, number three, thank you. You are excused. Chris Davis, number five, you are excused, Ms. Davis. Thank you very much. Mr. Willie Martin juror number six, you are excused. Thank you very much. Shirley Engel, juror number 13, you are excused and Kathryn Locklin is excused. Thank you, Ms. Locklin. All right. That means that Carol Bell will be the alternate in this case. Let me ask Ms. Bell to have a seat in the jury box with the rest of the panel. I'm going to give you an oath and then I'm going to find out if you need to use the phone and I'm going to take a brief recess.

"MR. SPRUELL: Your Honor did not ask if this is the jury we picked and I would like to be heard on that. THE COURT: Mr. Spruell, if you will please have a seat, I'm going to impanel the jury. I do not hear argument in the presence of the jury panel. I'm going to take a brief recess. Anything you would like to get on the record, we will get on the record at that time. Let me ask the members of the panel to stand for the oath that will impanel you as a member of this particular jury. (WHEREUPON, the oath was administered to the jury panel.)

"THE COURT: All right. Please be seated. Members of the panel is there anyone who needs to make a phone call? I'm going to take about a ten-minute recess. Let me ask that you take the recess outside of the courtroom. The bailiff will let you know when to come back into the courtroom. There is a phone in my office that my secretary can direct you to for making phone calls. (WHEREUPON, the jury panel was escorted out of the courtroom and the following proceedings took place outside of their presence.)

"THE COURT: All right. Let the record reflect that the jury has left the courtroom. Now, Mr. Spruell, before we get started we need to set some ground rules, and I didn't feel this was necessary because you have been in my courtroom before, but I will tell you once again. As you know, I do not hear legal argument in the presence of the jury. Any time you have legal argument or a motion to make, the proper procedure is to inform the Court that you have a motion to make or an objection to make outside of the presence of the jury. I am not going to tolerate your continually interrupting the Court or interrupting these procedures as has been your practice on numerous occasions in my courtroom. I'm only going to warn you once, Mr. Spruell, but you are bordering on contempt. I am not going to tolerate your taking over this case, repeatedly interrupting these procedures. If you have an objection to make on the record, you can state it at this time. MR. SPRUELL: Your Honor, we are generally asked--the defendant is generally asked whether or not that is the jury that he picked and that indeed was not the jury that we struck. The Court--and the record will clearly reflect this. The Court instructed both counsel for the defense, counsel for the State and the jury--of course, there was no need to discuss it with the jury but the Court saw fit to discuss it with the jury that--THE COURT: Mr. Spruell, just a minute. I'm not going to tolerate your spurious remarks indicating what the Court saw fit to discuss. What I discuss is within my discretion and control. You are the one who stood up in the presence of the jury and attempted to make legal argument. Now, as to the alternates, the Court has the discretion to allow either counsel or both counsel to use your total number of strikes in any manner in which you see fit, not only against the alternates. The Court may have indicated that you could use them against the set of alternates, but when it was brought to my attention that the State had used theirs against the main panel, I allowed defense counsel that same opportunity to use their five strikes in any manner that you saw fit. I even gave defense counsel an additional what amounted to ten minutes to re-adjust your strikes, and you utilized that time and you re-adjusted your strikes, and you used your five strikes in any manner in which you saw fit. It is within my sound discretion whether or not I require the attorneys to use their strikes only against the main panel or to use them as divided up among the alternates. Now, you can perfect the record but you were given ample opportunity to re-adjust your strikes and use them in any manner that you saw fit which you did. MR. SPRUELL: May I finish my objection now, please? THE COURT: Yes sir. MR. SPRUELL: As I was saying, the Court saw fit to instruct counsel and the defense, the defendant and also in the presence of the jury to inform the jury as to how the striking was supposed to take place. The Court clearly instructed both counsel that we had four--that the defense has four strikes on the panel of 12 and the State has two, and that we would have an extra strike for the alternate jurors. The State used their alternate juror strike--after using all of their strikes on the panel of 12, they used their alternate strike on the main panel of 12, and it is clearly, clearly not allowed under the law. THE COURT: State your legal authority for that position. MR. SPRUELL: Well, I'm simply--there is legal authority for it no question about it. THE COURT: Please state it for the record. MR. SPRUELL: The statute sets out--THE COURT: Please state the statute. MR. SPRUELL:--the number of strikes that we should have. THE COURT: Well, I'm familiar with the number of strikes and the number of alternate strikes that the Court can allow, and the number of alternate strikes and the number of alternates to select is a matter within my discretion. But state for the record the code section that requires that the strikes as to the alternates be used only against the alternates and that states that the trial judge has no discretion as to how the strikes can be used. MR. SPRUELL: You want me to state some authority that says that you only use the alternate strikes--THE COURT: State it for the record, Mr. Spruell. MR. SPRUELL: That are only used--THE COURT: Or sit down. State it for the record or sit down. MR. SPRUELL: I'm being interrupted, Judge. I'm trying to tell you--THE COURT: Mr. Spruell, you are in contempt. I'm going to fine you $500.00 for being contemptuous in front of the Court, for interfering with the administration of justice. Have a seat.

"MR. SPRUELL: Let me respond, please. THE COURT: Have a seat or I'm going to have the deputy take you away. MR. SPRUELL: Judge, you have to--THE COURT: This contempt was in the presence of the Court and I asked you to state for the record, and you stood there, laughed at the Court, asking me--MR. SPRUELL: I'm not laughing, Your Honor. THE COURT: Let the record reflect that Mr. Spruell is laughing, Your Honor. MR. SPRUELL: The record must reflect that I'm not laughing. THE COURT: Deputy, will you please take Mr. Spruell into custody. I think the law requires that I can fine you $500.00 and sentence you to 20 days in jail and at this time I'm going to have the deputy take you into custody and I am going to sentence you to 20 days in custody. You can take him away right now.

"MR. SPRUELL: Can I get my papers? May I call my lawyer? May I call my lawyer? THE COURT: I'm not your attorney, Mr. Spruell. You seem to have enough information to tell the Court what to do and I will reduce that order to writing posthaste, Sergeant Young. SERGEANT YOUNG: Thank you very much. MR. SPRUELL: Your Honor, my client wants to inquire as to...