In Re Francys Johnson ( 2022 )

FOURTH DIVISION
BARNES, P. J.,
REESE and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 30, 2022
In the Court of Appeals of Georgia
A22A0608. IN RE FRANCYS JOHNSON.
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
1
In addition to felony murder, the defendant was charged with multiple other
crimes.
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
2
[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.
3
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
2
Several months after this appeal was docketed, Johnson’s counsel filed in this
Court an “Extraordinary Motion to Vacate Order of Contempt,” representing that a
senior judge (who had been appointed to preside over the recusal matter, due to the
voluntary recusal of all remaining judges of the Ogeeche Judicial Circuit) has since
ruled to recuse Judge Muldrew from the case. Attached to that motion is an “Order
on Defendant’s Motion to Recuse Trial Judge” detailing multiple ways that Judge
Muldrew’s rulings and conduct – including his handling of the notebook situation –
amounted to the appearance of bias against the defendant in the felony murder case
and against the defendant’s lawyers. The motion argues that because Judge Muldrew
has thus been recused, the contested contempt order entered by Judge Muldrew is
void and should be vacated.
“We cannot consider factual representations in [an appellate motion] which
[facts] do not appear in the record.” Crewe Acquisitions v. Kendrick, 351 Ga. App.
624, 626, n.5 (832 SE2d 442) (2019); see generally In re Williams, 347 Ga. App. 189,
191 (818 SE2d 260) (2018). And at any rate, as we explain in Division 2, infra, the
appellate record establishes on other grounds that the criminal contempt adjudication
cannot stand. Therefore, Johnson’s “Extraordinary Motion to Vacate Order of
Contempt” is dismissed as moot.
4
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
3
See generally In re Hughes, 299 Ga. App. 66, 67 (1) (681 SE2d 745) (2009)
(explaining that “because of the present and possible continuing adverse collateral
consequences [the attorney] may suffer as a result of her contempt of court
conviction, her appeal of that conviction is not moot”); and see generally Mondy v.
Magnolia Advanced Materials, 303 Ga. 764, 772 (2) (b) (815 SE2d 70) (2018) (“A
decision by a trial judge to hold someone in contempt of court. . . is not just
‘administrative’; it is a ruling that has substantive consequences for the contemnor,
which may include . . . incarceration, as well as collateral consequences such as
professional discipline.”).
4
See generally In re Jefferson, 283 Ga. 216 (657 SE2d 830) (2008)
(articulating a more complete standard for contempt in the context of courtroom
advocacy).
5
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 SE2d 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 SE2d 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 SE2d 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.
5
See footnote 2, supra.
6
Specifically, in his motion, Johnson quoted language from Mondy, 303 Ga.
at 777 (4): “Assuming [the appellant’s] motion to recuse was properly presented to
the trial judge, the judge had a clear duty to temporarily cease acting upon the merits
of the contempt proceeding, and the judge therefore erred in entering the contempt
order before the recusal motion had been decided.”
6
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 SE2d 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).
Thereafter, in Ramirez v. State, 279 Ga. 13 (608 SE2d 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). More recently,
in Cousins v. Macedonia Baptist Church of Atlanta, 283 Ga. 570, 575 (1) (662 SE2d
533) (2008), our high Court reiterated:
7
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 SE2d 52) (1983). Accord Taylor v. Hayes,
418 US 488, 498 (II) (94 SCt 2697, 41 LE2d 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). 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
SE2d 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.
8
App. 827, 827-828 (605 SE2d 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 order entered hours later recounts the trial judge’s
contemplation of a contempt hearing for Johnson, but by then (and as the same order
reflects), Johnson had already been incarcerated.
“Contempt is a drastic remedy which ought not to deprive one of his liberty
unless it rests upon a firm and proper basis.” (Citations and punctuation omitted.)
9
Ford v. Ford, 270 Ga. 314, 316 (509 SE2d 612) (1998). Here, because the record
shows that requisite due process was not extended to Johnson, the contempt ruling
(whether oral7 or written) was not authorized and is hereby reversed. See Cousins,
283 Ga. at 575 (2) (reversing summary adjudication of criminal contempt because,
inter alia, the appellant was given no opportunity to respond to or defend himself
against the trial judge’s determination of contempt); Ford, 270 Ga. at 316 (“Because
the minimum requirements of due process were not extended to appellant in this case,
the [criminal] contempt judgment must be set aside.”); In re Williams, 347 Ga. App.
at 192 (reversing the direct criminal contempt judgment, where the record did not
show that the appellant-attorney was extended the minimum requirements of due
process of law – i.e., “an opportunity to speak on her own behalf or attempt to explain
her actions before she was found in contempt”); In re Sprayberry, 334 Ga. App. 571,
573 (1) (779 SE2d 732) (2015) (reversing contempt judgment, where the record
7
See OCGA § 5-6-34 (a) (2) (authorizing appeals to be taken to the Court of
Appeals from “[a]ll judgments involving . . . contempt cases”), (d) (providing, in
pertinent part, that “[w]here an appeal is taken under any provision of subsection (a),
(b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case
which are raised on appeal and which may affect the proceedings below shall be
reviewed and determined by the appellate court, without regard to the appealability
of the judgment, ruling, or order standing alone and without regard to whether the
judgment, ruling, or order appealed from was final or was appealable by some other
express provision of law contained in this Code section, or elsewhere”).
10
showed that the trial judge did not afford the attorney held in contempt a “meaningful
opportunity to be heard”); In re Hughes, 299 Ga. App. 66, 71 (2) (681 SE2d 745)
(2009) (finding that “the trial court erred by immediately imposing punishment and
not providing [the attorney] the opportunity to speak in her own behalf”); Coleman,
269 Ga. App. at 827-828 (reversing summary contempt judgment, where the trial
court sentenced the appellant without giving him an opportunity to speak or explain
why he should not be held in contempt).
3. Given our holding in Division 2, supra, we do not reach the remainder of
Johnson’s arguments.
Judgment reversed. Reese and Markle, JJ., concur. Dillard, P.J., and Mercier,
J., recused.
11