Jannis Collins v. State of Georgia ( 2022 )

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, 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
April 4, 2022
In the Court of Appeals of Georgia
A22A0442. COLLINS v. STATE OF GEORGIA.
BROWN, Judge.
In this interlocutory appeal, Jannis Collins contends that the superior court
erred in denying her motion to dismiss the State’s motion for criminal contempt
against her. For the reasons explained below, we agree.
“[W]e review a trial court’s ruling on a motion to dismiss de novo.” Sullivan
v. Bunnell, 340 Ga. App. 283, 290 (2) (797 SE2d 499) (2017). The State’s motion for
criminal contempt alleges that on March 1, 2017, Collins was present in Judge LaTain
Kell’s courtroom as a potential witness in a civil matter between her sister, Vivian
Swain, and brother-in-law, Mark Swain. Collins, who is not a lawyer, sought to
represent Ms. Swain but was not allowed to do so. During Mr. Swain’s testimony,
Collins shouted from the gallery to express her disagreement with his testimony and
was admonished by the court not to speak unless she was testifying. Ms. Swain then
expressed that she intended to call Collins as a witness. The court explained the rule
of sequestration to Collins, and she left the courtroom.
On the following day, Collins re-entered the courtroom and said something
indiscernible during the testimony of Mr. Swain. The trial court then stated, “Ma’am,
I told you yesterday that you are not a participant in this case. In fact, you are
supposed to be outside. I told you you were to be sequestered yesterday.” When
Collins responded that she was no longer going to be called as a witness, her sister
disagreed. The trial court told Collins “to step outside” and advised “if you interfere
with this court proceeding one more time, I’m going to ask you to remain outside.”
As Collins apparently attempted to leave the courtroom, the trial court called her back
to explain her conduct in “ma[king] the gun motion to [her] head and point[ing]” at
the judge. After Collins apologized and claimed that she just touched her hair, the
trial court stated:
No ma’am. That was not what you did. . . . If you . . . think,
ma’am, that you can come in this courtroom and act the way that you are
acting, you are severely mistaken.
If you do — I am warning you right now, if you do one more
thing in front of this court that causes me any concern whatsoever or
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interferes in any way with this proceeding, I will hold you in contempt
and I will have you jailed. Do you understand what I’m saying?
After Collins answered in the affirmative, the trial court instructed her to immediately
leave the courtroom.
Two months later, the State filed a motion for criminal contempt in the pending
civil case based upon Collins’ conduct in the courtroom. According to the State,
Collins looked straight at the judge, made a “gun” symbol with her right
hand by extending her thumb and forefinger, putting it to her head, then
pointed it at the judge and made a motion as if “pulling the trigger” with
the imaginary gun’s hammer coming down. This action was witnessed
by the Defendant and court personnel, including Deputy Warren, who
were present in the courtroom and clearly conveyed a threat to the Court
(See report number 17-02695, attached as Exhibit A).[1]
According to the State’s motion, the trial judge “immediately asked [ ] Deputy
Warren to preserve the courtroom security video of the incident for evidence.” Based
upon the authority of In re Crane, 253 Ga. 667 (324 SE2d 443) (1985), the State
asked the trial judge to recuse himself from considering the motion for contempt and
that the Clerk of Court randomly assign the matter to another judge. The record shows
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No Exhibit A is attached to the motion in the record before this Court, and it
does not appear elsewhere in the record.
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that the motion was assigned a new case number. Collins filed a motion to dismiss the
motion for contempt, which the newly assigned judge denied.
OCGA § 15-1-4 (a) (1) authorizes a trial court “to issue attachments and inflict
summary punishment for contempt of court . . . to cases of . . . [m]isbehavior of any
person or persons in the presence of such courts or so near thereto as to obstruct the
administration of justice[.]” Criminal and civil contempt differ in “that criminal
contempt imposes unconditional punishment for prior acts of contumacy, whereas
civil contempt imposes conditional punishment as a means of coercing future
compliance with a prior court order.” (Citation and punctuation omitted.) Ford v.
Ford, 270 Ga. 314, 315-316 (509 SE2d 612) (1998).
During trial, a trial judge has the power, when necessary to maintain
order in the courtroom, to declare conduct committed in his [or her]
presence and observed by him [or her] 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.
Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (b) (304 SE2d 52) (1983).
Questions of contempt are for the court treated with the contempt; and
its decision ought to be final, except, perhaps, in the case in which the
decision shows an enormous abuse of the discretion. The discretion of
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the judge finding a party in contempt or in refusing to find a party in
contempt has been compared to the discretion lodged in the judges of
the superior court in granting or refusing injunctions. The purpose in
punishment for criminal contempt is to preserve the power and vindicate
the dignity of the court and to punish for disobedience of the court’s
orders.
(Citations and punctuation omitted.) Garland v. State, 101 Ga. App. 395, 401-402 (6)
(114 SE2d 176) (1960). With regard to the due process rights of a person subject to
being found in criminal contempt by a trial judge, the following four scenarios apply:
(a) A trial judge may find an attorney in contempt of court without trial
by jury where the penalty actually imposed does not exceed six months.
(b) During trial, 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. The
carrying out of the punishment announced during trial may be postponed
until after trial.
(c) Where the announcement of punishment is delayed, and where the
contumacious conduct was not directed toward the judge and where the
judge did not react to the contumacious conduct in such manner as to
become involved in the controversy, the judge has the power to hold a
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contempt hearing at the conclusion of the trial and, after giving the
attorney reasonable notice of the specific charges and opportunity to be
heard, to impose punishment.
(d) Where the announcement of punishment is delayed, and where the
contumacious conduct was directed toward the judge or where the judge
reacted to the contumacious conduct in such manner as to become
involved in the controversy, the judge may give the attorney notice of
specific charges, but the hearing, including the attorney’s opportunity to
be heard, must be conducted by another judge.
(Punctuation and footnotes omitted.) Dowdy, 251 Ga. at 141-142 (2), citing Taylor
v. Hayes, 418 U. S. 488 (94 SCt 2697, 41 LE2d 897) (1974).
In this case, it is not a trial judge who has instituted criminal contempt
proceedings against Collins, but the State of Georgia, which has the ability to seek
an indictment of Collins for any crime she may have committed in the courtroom.
And the State did so in a civil action between private parties to which it was a
stranger. The proper procedure is for the trial judge, not the State, to institute criminal
contempt proceedings. See, e.g., Moton v. State, 332 Ga. App. 300, 302 (772 SE2d
393) (2015) (trial judge informed witness that a criminal contempt hearing would be
scheduled and issued rule nisi advising the witness of the charge against him).
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Accordingly, we reverse the superior court’s denial of Collins’ motion to dismiss the
State’s action for criminal contempt against her.
Judgment reversed. Barnes, P. J., and Hodges, J., concur.
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