In Re Healy , 241 Ga. App. 266 ( 1999 )

Pope, Presiding Judge.

Attorney Timothy P. Healy was convicted of direct criminal contempt and appeals. In his sole enumeration Healy claims that the court erred in finding that Healy had committed a contemptible act. We conclude that Healy’s behavior did not constitute criminal contempt and reverse.

This case arose during Healy’s representation of Clint Shurtleff on a murder case in which the child victim had died as a result of a blunt trauma to his head. The first trial of the case resulted in a hung jury. During the second trial, the State called as an expert witness the Crime Lab’s chief medical examiner, James Dawson, who had performed the autopsy on the victim. Dawson testified that he could not determine if the child’s death was accidental or if the child had been a homicide victim. Dawson also testified that he consulted Kris Sperry, who replaced Dawson at the Crime Lab, about the cause of the death of the child.

Next, Healy cross-examined Dawson. Healy asked Dawson if he had previously testified in this case, and Dawson stated that he had. In response to Healy’s question, Dawson then acknowledged that Sperry did not testify in the earlier trial. During this exchange Healy asked Dawson: “And the last time you testified in this case without Dr. Sperry being around to help in this search for the truth my client was not convicted, was he?”

The prosecutor objected to this question, and the judge called the attorneys to the bench. The judge then excused the jury from the courtroom, and the prosecutor stated he believed that Healy’s question was calculated to lead to a mistrial. Healy explained that the question went to Sperry’s credibility as a witness who was brought into the case only after the State was unable to convict Shurtleff in the first trial. Healy said that he thought the State was creating an erroneous impression with the jury regarding Sperry’s involvement and that he was trying to correct the misimpression.

The court then asked Healy for authority in support of allowing the jury to know the result of the first trial. When Healy was unable to provide a citation, the court stated that it would have a ten-minute recess during which Healy was to go to the law library and find a citation to support his position.

After the recess, Healy was unable to cite any direct authority for his position. The prosecutor argued that though the State was willing to stipulate that the case had been tried before, Healy should not have told the jury that the previous verdict was “not guilty.” Next, the court allowed Healy to speak on his own behalf. After Healy argued, the court found Healy in contempt and stated that the sentence would be determined at the conclusion of the case, after a hearing. The jury then returned to the courtroom, and the court instructed the jury to disregard the objectionable question.

Several weeks later, the court entered an order which held Healy in direct criminal contempt and sentenced him. In its order, the court noted that Healy’s question, “elicited testimony that his client was not found guilty at said previous trial.” The court found that this conduct interrupted and interfered with its ability to administer justice; the court also found that Healy’s conduct was intentional.

In his sole enumeration, Healy argues that the court erred in finding him in contempt because his conduct was not inappropriate and did not imperil the administration of justice. We first note that, contrary to the representations otherwise, the record shows that Healy referred in his question to the fact that his client had not “been convicted” in the previous trial. Healy did not state that his client had been found “not guilty” in the previous trial, as the State contends, nor did his question elicit testimony to that effect, as the trial court stated in its order. Healy argues that the question he asked of Dawson was not improper and that, accordingly, the evidence regarding the contempt was insufficient. As stated above, we conclude that Healy’s allegedly offensive question, standing alone, did not justify the finding of contempt.

The appropriate standard of appellate review for a criminal contempt conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted; emphasis in original.) In re Bryant, 188 Ga. App. 383, 384 (2) (373 SE2d 74) (1988).

With respect to the substance of criminal contempt: “[c]riminal contempt is that which involves some disrespectful or contumacious conduct toward the court.” (Citations and punctuation omitted.) In re Henritze, 181 Ga. App. 560, 562 (353 SE2d 58) (1987). OCGA § 15-1-3 (1) provides that every court has the power “ [t] o preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings.”

The power to summarily adjudicate and punish for direct criminal contempt is derived from the court’s authority to maintain courtroom order and decorum. “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.” Dowdy v. Palmour, 251 Ga. 135, 141-142 [(2) (b)] (304 SE2d 52) (1983).

In re Shafer, 216 Ga. App. 725 (455 SE2d 421) (1995).

The court set forth more particulars regarding the evidence necessary to sustain a contempt conviction in In re Shafer, stating:

[i]n a summary contempt proceeding, objectively observable and describable behavior that causes an articulable interference with the administration of justice must be demonstrably present. Both the bad conduct and its adverse impact must be set forth with specificity in the ruling by the court that finds as a matter of fact that no justification exists for the alleged contemnor’s behavior. If these procedural steps are taken verbally, as is usually the case with a court trying to restore some immediate order in its proceedings, the judge must as soon as possible create a written record that preserves the following: (1) the notice to the perpetrator of the offensive conduct subject to being viewed as contemptuous due to its actual or imminent adverse impact; (2) a detailed description of the bad acts committed or omitted by the perpetrator despite a contemporaneous warning by the court to refrain; (3) an explanation of the deleterious impact on the court’s operations or its integrity; (4) a recitation of the perpetrator’s reasons given as justification for the questionable conduct; (5) a finding of fact by the judge of direct conduct interfering with the court’s administration of justice, or imminently threatening such consequences; and (6) an order declaring the respondent in contempt of court and imposing a statutorily authorized sanction.

(Emphasis in original.) 216 Ga. App. at 726 (1).

Although, unlike in this case, in In re Shafer there was no transcript of the behavior which constituted the alleged contempt, the guidelines the court set forth in that case illuminate our inquiry here. And the problem with Healy’s allegedly contemptuous behavior is evident: Healy’s question, in and of itself, was not sufficiently offensive to warrant the finding of contempt. While we do not condone Healy’s interjection of the first trial into the second, the act of asking this question — standing alone — is not sufficient evidence to sustain the contempt conviction.¹

In asking the objectionable question, Healy did not usurp the court’s authority or interfere with the administration of justice. There is no indication from the record that the parties were instructed before Healy’s question to refrain from mentioning the first trial, nor is there any indication that Healy repeated the offensive behavior. In other words, Healy did not defy any instruction from the court in asking the question; he was simply defending his client by trying to impeach Dawson.

We also note that given the facts of this case, no harm resulted from Healy’s question. In fact, after the question, the State stipulated that Healy could mention the first trial — the State simply wanted to bar him from stating the results of that trial. But, even without the stipulation, the jury had heard that there had been a previous trial; for example, earlier in Healy’s cross-examination of Dawson, Healy asked without objection whether Dawson had “testified before in this case.” Clearly, the jury could figure out that Shurt-leff had not been convicted, simply by virtue of the fact that he was being tried again.

Although it is conceivable that a criminal conviction for contempt could be supported by one improper question, here the question Healy asked does not constitute a sufficient predicate for contempt, and the finding must be reversed. While the dissent correctly notes that a trial court does not operate in a vacuum, this court cannot create facts to support a finding of contempt when those facts are not clear from the record. There is nothing in the portions of the record from which the dissent quotes to indicate that Healy was doing anything other than zealously representing his client. And, though the dissent warns against making trial judges anxious about the exercise of their authority, we should also be cautious about making counsel unduly anxious about their zealous representation of clients. While it is not always necessary that a trial court instruct or warn counsel before finding him in contempt, in this case the trial court should have warned Healy before making its finding.

Judgment reversed.

Johnson, C. J., Smith and Barnes, JJ., concur. Blackburn, P. J., Eldridge and Ellington, JJ., dissent.

1 Nevertheless, we agree that better practice dictates that the parties refrain from mentioning the previous trial. Although the dissent contends that the principle that a new trial is required when the jury is told of a prior trial result is firmly established, it is difficult to find criminal cases which clearly and directly state that proposition. The seeming dearth of cases on this point further supports our conclusion that Healy’s question did not warrant an automatic finding of contempt.