State v. Kennerly

• Decision Date: 15 June 1998
• Docket Number: No. 2853.,2853.
• Parties: The STATE, Respondent, v. Patricia KENNERLY, Appellant.
• Court: South Carolina Court of Appeals

331 S.C. 442

503 S.E.2d 214

The STATE, Respondent, v. Patricia KENNERLY, Appellant.

No. 2853.

Court of Appeals of South Carolina.

Heard May 7, 1998.

Decided June 15, 1998.

Rehearing Denied August 19, 1998.

Clyde C. Dean, Jr., Orangeburg, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Caroline C. Tiffin, Columbia; and Solicitor Walter M. Bailey, Jr., Orangeburg, for respondent.

HOWARD, Judge:

Patricia Kennerly appeals her conviction of criminal contempt. We affirm.

I. FACTS

Kennerly was a juror in the capital murder trial of The State v. Gregory Benjamin. The Benjamin jury, which was sequestered during the trial, returned a verdict of guilty but did not impose a death sentence.

Three months after the Benjamin trial, the solicitor filed a petition alleging Kennerly was in contempt of court for: 1.) failing to disclose her relationship with Benjamin and/or his sister Tina Benjamin, who was a defense witness, during voir dire; and 2.) initiating premature discussions with other jurors regarding her relationship with the Benjamins and her intent to vote for a life sentence in violation of the judge's instructions. The trial judge who presided over the Benjamin trial issued a rule to show cause based on the allegations in the petition. At Kennerly's request, the trial judge subsequently recused himself from hearing Kennerly's case.

Prior to the bench trial, Kennerly filed motions to dismiss the charges of contempt on the grounds that: 1.) the alleged contemptuous conduct occurred outside the presence of the court and therefore the rule to show cause was fatally defective because it was not supported by an affidavit or verified petition; and 2.) the State failed to comply with her Brady¹ and Rule 5, SCRCrimP, motions by not disclosing exculpatory statements made by Tina Benjamin to the solicitor's investigator. The trial court denied both motions.

At trial, the State called four witnesses, all members of the Benjamin jury.

Lamond Davis testified that on the second day of the guilt phase of the trial, Kennerly asked him if he could impose the death penalty. According to Davis, Kennerly then said, "Well, I'll give him life in jail." Davis also vaguely described the Benjamin trial judge's instructions given to the jury regarding premature deliberations.

Joyce Smith testified that Kennerly made similar statements to her at the motel where the jurors stayed during sequestration. Smith testified Kennerly spoke of being against the death penalty several times. According to Smith, Kennerly also stated that "she did not know how she had gotten picked to be a juror on this trial because she knew the sister of Gregory Benjamin, and that she lived on the same road, or the same area, she worked with her at the same plant, at one of the plants, and she just didn't know how she had even gotten picked to be on the jury." Smith testified Kennerly also commented on the credibility of one of the witnesses, claiming the witness lied in his testimony. All of these statements took place during the guilt phase. Smith also described the Benjamin trial judge's premature deliberations instructions—"He would tell us every day not to talk about it... [until] after everything was done."

Betty Parler testified that on the second day of the guilt phase, Kennerly stated to all the jurors at the conference table, "I really don't know why I'm here ... because I know the defendant's sister. I work by her and also we are neighbors."

Brian Parker testified that during the guilt phase of the trial, Kennerly told him that she knew Tina Benjamin, worked with Tina, and "wasn't really ... going with the death penalty." Parker stated he told Kennerly he didn't want to hear it "because the judge ruled that out" and they were not to talk about it.

At the conclusion of the State's case, the solicitor called attention to the Benjamin trial transcript, certain portions of which had been put into evidence. In particular, the transcript revealed that Kennerly was asked twice, once in the general voir dire and once during the individual voir dire, whether she knew any of the potential witnesses including Tina Benjamin. Kennerly informed the court that she knew some of the witnesses, however, she did not inform the court that she knew Tina.

The State did not introduce into evidence portions of the Benjamin trial transcript regarding the trial judge's premature deliberations instructions because those portions had not yet been transcribed. Instead, the State requested the trial court to take judicial notice of the jury instructions. It is not clear from the record whether the trial court did so. Ultimately, the State offered to have those portions transcribed, but the trial court informed the State that it did not need the transcript.

Kennerly then moved for directed verdict and renewed her motions to dismiss. The trial court denied the motions.

The defense called Tina Benjamin who testified she was not present in the courtroom during the jury selection and was never asked to stand up in front of the jury as a potential witness during voir dire. She further testified that she: did not know where Kennerly lived; had never worked side by side with Kennerly; did not know Kennerly; and had seen her before the Benjamin trial only "in passing," such as at the local gas station. Kennerly did not testify.

The trial court found Kennerly guilty of contempt based on: 1.) her failure to disclose her relationship, however slight, with Gregory and Tina Benjamin; and 2.) her numerous violations of the Benjamin trial judge's instructions regarding premature deliberations. Kennerly was sentenced to six months imprisonment.

II. ISSUES

A. Was Kennerly entitled to a dismissal of the charges against her based upon the lack of an affidavit or verified pleading supporting the rule to show cause?

B. Was Kennerly entitled to a dismissal of the charges against her based upon the State's failure to comply with her discovery motions?

C. Was Kennerly entitled to a directed verdict based upon the State's failure to prove the corpus delicti of the contempt regarding her relationship with the Benjamins?

D. Was Kennerly entitled to a directed verdict based upon the State's failure to introduce portions of the Benjamin trial transcript regarding the trial judge's premature deliberations instructions?

III. DISCUSSION

A. Rule to Show Cause

Kennerly contends the trial court erred in failing to dismiss the contempt charges on the ground that the rule to show cause was not based upon a sworn affidavit or a verified pleading alleging sufficient facts. She argues the alleged contempt occurred outside the presence of the court and, therefore, the solicitor's unverified petition was fatally defective. We disagree.

The inherent power of contempt, vested in the courts, is well established. In 1888, the United States Supreme Court commented:

[C]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.... "The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts; and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power." And such is the recognized doctrine in reference to the powers of the courts of the several states.... "The power to punish for contempt is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied, because it is necessary to the exercise of all other powers." Without such power, ... the administration of the law would be in continual danger of being thwarted by the lawless.

In re Terry, 128 U.S. 289, 303, 9 S.Ct. 77, 32 L.Ed. 405 (1888) (citations omitted) (quoted with approval in State v. Goff, 228 S.C. 17, 22-23, 88 S.E.2d 788, 790-91 (1955)). Contemptuous behavior is conduct that tends to: bring the authority and administration of the law into disrespect; or, interfere with or prejudice parties or their witnesses during litigation. State v. Weinberg, 229 S.C. 286, 92 S.E.2d 842 (1956). The power of contempt exists to maintain the order and decorum of court proceedings, to enforce the court's writs and orders, and to punish acts tending to obstruct the due administration of justice. Id.

In this criminal contempt proceeding, the pivotal question raised by Kennerly's first issue is whether her alleged misconduct constitutes direct or constructive contempt.

Direct contempt is defined as contemptuous conduct occurring in the presence of the court. State v. Goff, 228 S.C. 17, 88 S.E.2d 788 (1955). South Carolina courts have liberally applied the "presence" requirement such that "[w]hen the [c]ourt is in session, in order to extend its protection to its officers, jurors and witnesses, it must be considered to be present where those persons are required to be in the performance of their several duties." Id. at 23, 88 S.E.2d at 791. The court "consists not of the judge, the courtroom, the jury, or the jury room individually, but of all of these combined. The court is present wherever any of its constituent parts is engaged in the prosecution of the business of the court according to law." Id. at 24, 88 S.E.2d at 792 (categorizing the defendant's conduct as direct contempt where he harassed a witness during a civil trial on the courthouse steps after the witness had testified against the defendant).

Constructive contempt is contemptuous conduct occurring outside the presence of the court. Toyota of Florence, Inc. v. Lynch, ...