In Re Shafer , 216 Ga. App. 725 ( 1995 )

Johnson, Judge.

Herbert Shafer, an attorney, appeals from the judgment of contempt entered against him by Judge David T. Emerson of the Douglas County Superior Court.

The only record before this court is the trial court’s June 20,1994 order holding Shafer in contempt. The order reflects the following: At a June 20, 1994 calendar call, the trial judge admonished Shafer regarding improper use of the court’s subpoena power and cautioned him to deal with witnesses in a professional manner in accordance with State Bar rules.¹ In response, the order indicates that Shafer “proceeded to make numerous remarks concerning his resentment of the treatment he had received from the court . . . [and] through his words, conduct and demeanor in open court exhibited disrespect for this court and its authority.” The order further recites that, “[u]pon that conduct,” the trial judge found Shafer in contempt and ordered that he be held in the custody of the sheriff until 8:00 p.m. of that same day and fined the sum of $250.

It is clear from the trial court’s order (and from the briefs before this court) that, based on Shafer’s conduct in the presence of and observed by the trial judge, Shafer was summarily adjudicated and punished for direct (i.e., committed in the judge’s presence) criminal (i.e., punitive rather than remedial) contempt of court. 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 (304 SE2d 52) (1983). “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.” Id. at 141; OCGA § 15-7-4 (5).

1. In his first enumeration of error, Shafer contends that the contempt order is deficient on its face in that it fails to set forth the facts upon which the trial court concluded that he was guilty of contempt. The order sets forth the trial judge’s conclusions regarding Shafer’s conduct but does not give any factual description of the conduct itself and we have no transcript of the calendar call at which the allegedly contumacious behavior occurred.

In 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. Because the order does not sufficiently set forth the words or acts or circumstances upon which the trial judge found Shafer in contempt, we are unable to review the court’s judgment to determine whether the evidence was sufficient for the trial court to conclude beyond a reasonable doubt that Shafer was guilty of conduct constituting direct criminal contempt for which summary adjudication and punishment was authorized. See Garland v. State, 99 Ga. App. 826 (110 SE2d 143) (1959); In re Bryant, 188 Ga. App. 383, 384 (373 SE2d 74) (1988).

Because, in effect, the trial judge is the judge, jury and executioner with regard to direct, summary contempt findings, it is imperative for purposes of review that the record clearly reflect the behavior of both the court and the offender. Here, the trial judge did not contemporaneously set forth with specificity those comments or actions which it found objectionable, summarily stating in its order: “Mr. Schaefer (sic) them (sic) proceeded to make numerous remarks concerning his resentment of the treatment he had received from the court. Mr. Schaefer through his words, conduct and demeanor in open court exhibited disrespect for this court and its authority.” This summary order, unsupported by a properly perfected record, is insufficient for appellate review. Neither do we believe that the deficiency in perfecting the record can be cured on remand. Remand is only appropriate in those cases where there was a proper record made at the time and the order is inadequate but could be made adequate upon review of the existing record. In cases such as this, where no record was properly made below, remand is clearly inappropriate.

This case is similar to In re Adams, 215 Ga. App. 372 (450 SE2d 851) (1994), a case in which the events which triggered the courtroom behavior which the trial court claimed constituted the contempt actually occurred sometime previously. In Adams, it was alleged fraudulent modification of an accusation form, here, an alleged misuse of the court’s subpoena power. In Adams, this court pointed out that if it is the underlying contempt the court wishes to address, the proper procedure to be followed must include being cited for contempt, notice of a hearing before another judge, the opportunity to be represented by counsel and to call witnesses on his behalf. Here, the trial judge, by his own admission, publicly admonished Shafer regarding his use of subpoenas, intimating that it was contemptuous. Shafer’s frustration with having been denied due process, if in fact, the judge intended to find him in contempt for his previous actions is understandable. We do not in any way intimate here that Shafer’s subsequent behavior, whatever it was, was becoming of an officer of the court.

“[T]his Court is compelled, on review of an appeal of a criminal contempt conviction, to utilize the standard of whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” In re Smith, 205 Ga. App. 857, 858 (424 SE2d 45) (1992). To the extent that we have no competent evidence before us for review, and the creation of competent evidence at this point, raises a specter of unreliability, Shafer’s contempt must be reversed.

2. In light of our holding in Division 1 above we decline to address Shafer’s remaining allegations of error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., Andrews and Ruffin, JJ., concur in part and dissent in part.

1 Shafer was cautioned for his conduct in two separate incidents recounted in the trial court’s order. First, Shafer subpoenaed various law enforcement officers and their investigative files to the court’s calendar call on June 13, 1994, even though the June 13 calendar call was held, not for the purpose of considering testimony or evidence, but merely to ascertain whether or not cases would be ready for trial on June 20, 1994. Second, at the June 20 calendar call, the State’s attorney brought to the court’s attention that a witness present in court pursuant to a subpoena issued by Shafer was complaining about how she had been treated by Shafer. On inquiry into the matter, the trial judge was informed that Shafer had engaged in a heated discussion with the witness’ employer and had informed the employer that he would subpoena “his ass to court.” Shafer confirmed to the trial judge that the incident with the witness’ employer had occurred and that he had used the above quoted language. Shafer was not found in contempt for these two incidents. Rather, as the trial court’s order indicates, the judge decided to caution Shafer based on a concern that Shafer had improperly used the court’s subpoena power in these incidents to inconvenience the law enforcement officers and to harass or threaten a potential witness.