*1
judgment
A
is void on its face when “there is a non-amendable
appearing
pleadings
defect
on the face of the record or
which is not
judgment
affirmatively
pleadings
cured
verdict or
and the
show
legal
that no
Industries,
claim fact existed.” Wasden v. Rusco
(2) (211
(1975).
Appellee argues
judgment
Ga. 439
SE2d
that the
“affirmatively appears
here is void because it
that no evidence was
presented
support
judgment.”
appellee
However,
overlooks
judgment may
collaterally
the rule that a
not be
attacked on the
ground that it
Wood,
was based on insufficient evidence. Burrell v.
60) (1976).
proceeding
required.
Judgment except Gregory, All concur, reversed. J., Justices participating. 6, 198 Decided June 28,
Rehearing 1983. denied June Perry, Lippitt, Langley, appellant. & Walters C. Richard Hodges, appellee. Kenneth B. Jr., for 39560. DOWDY et al. v. PALMOUR.
Hill, Chief Justice. Dowdy Douglas attorneys, Andrew W. were held Dowdy represented in probation of court. and McDonald a client in a hearing Judge
revocation Palmour, before James E. III. probationer charged having The violated the conditions of probation by possessing his witness, cocaine. When the state called its first sequestration. asked for the rule of said: right. attorney “All Call all witnesses around.” The assistant district and sent outside were sworn witnesses who two additional called courtroom. reported photographs of a vehicle two the state offered When having found, police cocaine was and which been stolen following transpired: Any objections? *2 suppress. objections All of our motion “DOWDY: Same testify they hearsay, here to have an owner unless
this information identify the car. your record, is overruled. motion With the state of the “COURT: sight I opposed have lost think I think understand don’t person concept of a conviction of a to the car of revocation get try stealing case. Let’s I’m offense. criminal with the issue at hand. objection? Judge, may The second I one more enter
“DOWDY: opinion, illegal objection search, in our is that this car is the fruit of an get time to a search warrant. since there was wrong. want You’re You I can take that out a flash. “COURT: got big he fat book that citations, Mr. McDonald that some or has always carries around. stand on them. have our citations and we’ll
“DOWDY: We “COURT: What are yours? him Give those citations.
“McDONALD: “COURT: yours, yours? Mr. McDonald. What are You read (Pause) (Pause) any? got McDonald, would, I’m if Mr. Have please respond addressing you. you me, I would If would stand and (Pause) Dowdy? appreciate voice, it. Has he lost his Mr. No, sir, Honor. “DOWDY: “COURT: “McDONALD: Your respond?
Mr. would copy Dowdy give I the court a asked Mr. brief, Your Honor. respond, Mr. McDonald.
“COURT: asked authority are set forth “McDONALD: Our citations brief, Your Honor. you.
“COURT: Thank “McDONALD: We would
very appreciate Your Honor’s much certainly authority, wrong, if admit and we are we citations attorney, wrong but we and to the district that we are to the court appreciate too, because of Your Honor’s citations would we so, benefit authority any improper court, if like to ever cite don’t certainly our brief. we will correct response, me, McDonald, from Does that need a “COURT: authority good? is no like to cite don’t say, Honor. I wish to I’ve said all say, I’ve all I wish accept “COURT: said Mr. McDonald. I’ll your authority your and I’ll overrule motion. There are two cases that read, just recently, you might came out want to not going are. they to tell what record,
“For the the reason I’m not they tell what are, rarely from think If I get play. turnabout is fair have them, I guess you to hunt had better hunt them.” When the defense its first called witness and direct began examination, the following occurred:
“ADA: Has this witness been in the courtroom?
“DOWDY: him got grand jury out of the room. “ADA: I think he was sitting over here the courtroom. “COURT: don’t know.
“THIRD PERSON: He was sitting right on this first row here.
“COURT: Go ahead.” questioning then resumed. excused, probationer’s When the first following witness was transpired: Call next witness. Bryant Call
“DOWDY: Johnson. *3 Now, “COURT: Mr. coming Johnson is out of audience. Mr. Dowdy, rule, let’s talk about this. You insisted on the and he’s been here, and, sitting apparently, gentleman sitting this other has been in here. Yes, sir. I
“DOWDY: on the rule to the state’s insisted witnesses. state made statement for the no as to witnesses defendant. Dowdy, go
“COURT: Mr. I’ll let I’m testify, ahead and them playing not Mr. games. you deal with McDonald case, when we get through both of court, “DOWDY: I’m not intending play games with the Your Honor. serious, very
“COURT: it him on Dowdy. Bring consider Mr. up. you I’ll deal with it. looks like gentlemen forgot It have our last little confrontation. that,
“McDONALD: What Honor? Or confrontation is Your shall we deal this later? sir, I’ll see, with it later. I’m I did glad get deal
you up. to stand it. appreciate Yes, sir, me, sometimes, you provoke to have to
stand, Judge. want to sure that silent go make the record doesn’t a response required. when is perhaps glad
“COURT: I’ll over.” be to discuss with after following hearing, the revocation of the conclusion At the transpired: please Dowdy, would, if and Mr. McDonald
“COURT: Mr. stand. — during progress the outset matter of this “Gentlemen, — McDonald, if I have could Mr. matter, invoked the rule was of the you, your attention, would be undivided each one of each of appreciated. standing, Honor. Yes, sir, I’m
“McDONALD: “COURT: come that all witnesses invoked. asked The rule was apparently, you, didn’t think Both of sworn. around and be applied witnesses witnesses, and the defendant’s to the defendant’s courtroom, in the to remain counsel defense were allowed you, Additionally, knowing Mr. were. the witnesses who court not McDonald, your question. chair. sat You time, I asked at the up. you, you You did did not stand addressed the court When respond fact, requested so, of as a matter to do the court when perfectly clear, doing, McDonald, record to be I want the in so Mr. clearly your expression were court that indicated ignoring this court. contempt of this is a direct
“Now, that this this court deems attorneys right The acts now. with each and will deal court complained of the as officers misbehaved that each of are your capacity court, after the as an officer court, in official sequestered, Dowdy, you, the witnesses be asked that or Mr. court attorneys you, defendant, allowed the for the both of and then especially courtroom, the court said after to remain witnesses be sworn.’ come around and all witnesses ‘let command, if order, or a to a lawful “This was disobedience court, to obstruct that, which tended to call it want justice. of a lawful It was also the disobedience administration the court. order of already you, sat McDonald, said that have “To question by court. when asked a chair contemptuous that these were “The to rule court *4 presence insulting court, which view and acts the immediate proceedings orderly and to obstruct the administration tended authority. impair respect and its to the due the court court and you something. going going I’m to hold “Gentlemen, I’m tell to impose you going I’m no sanctions in willful of court but to you, you, contempt, I’m both of each for this but to admonish requests questions respond court, and of this to to all to read rules by gentlemen the court. also as officers of made the court as and your prior directing that “Now, to the confrontation attention you you mentioned, McDonald, wanted and I had a con- Lumpkin County, frontation a murder case and we one had my memory Dawsonville, Dawsonville. In correct, if serves me I you you give asked for a citation and failed to it to me. The record will reveal whatever that confrontation was. That ends the matter. You gentlemen you copy transcript, are now If warned. would like a glad supply I would be it to I’m to have it transcribed keep expect you by file, and I henceforth, it in the I to abide requests, rulings the orders and of the court. — May please “McDONALD: the court it, “COURT: That’s the end of Mr. McDonald. May just
“McDONALD: I be heard for a moment? Certainly. “COURT: opportunity court, “McDONALD: I Please the would like an — study opportunity, proper I matter. would like an at the time — maybe proper respond this is not the time to the It court. apparent expression your your from the on face and the tone of voice — maybe right your time, now is not the due to expression my my McDonald,
“COURT: Mr. on face is expression, my my normal and the tone, tone of voice is normal when happen. very matters of this matter I would caution to be careful you say ruling. as to what I court. have made I will abide ruling. your legal do, You can do whatever desire to that are guess might up avenues. But Mr. I I sum it all saying operate, I that don’t understand the rules which and Mr. just making perfectly way you clear that the are — acting, way you acted, and have acted not have have acted in today satisfactory this courtroom me, is not and it showed to me expressions expression your face, talk about on their face stand, when asked and the record is clear Iwhen asked being stand, bordered on obnoxious. maybe my expression Well, too, that is usual —you Honor, enough No, sir. I’ve seen to know expression, enough usual think have seen of me my expression.
know that this is usual just by saying “McDONALD: would like to conclude this. contemptuous don’t want to be of the court. I don’t want contempt. “COURT: I’ve held I’ve held both of contempt, contempt. willful by simply making “McDONALD: I want to refute that contemptuous statement that I have not intended to be to this court. way, If the court construes it that that, then cannot take issue with except say my part. that it has not been intentional on It’s not been *5 140 just It’s times with Your Honor. my part. arguing on not
willful do, to and these, anticipated you going what were like when the court do, you were to opportunity anticipate I what have had no it, had the having I stand here not prepare myself opportunity I respond, and would like that opportunity prepare appropriate an time. to do so at McDonald, you any legal take avenue that again,
“COURT: Mr. it, presence As I understand misbehavior you want to. I way I it. As immediately, that is the did court can be dealt with before, sanctions for repeat myself, imposed I I have no have said contempt, you gentleman but I do admonish to act as a this willful the court. haven’t you like me or not we “Mr. whether you and it makes no difference but whether subject, addressed this not, before or you any you appear whether like like me or not, a You you gentleman. are an officer of the court. You should be like the yourself gentleman, you as a and whether should conduct court, if other you respect should for no judge, man that is the pure professionalism. reason than trial, this, prior
“I to all of anything had not said I you. the treatment received from deserve Well, I take issue with that. “McDONALD: it, If take issue with then should have done But, McDonald, except for about three or four at the time. individuals, probably anybody particular other the rudest courtroom, I to me in there when asked a sitting has ever been me, I question, ignoring responding. didn’t know whether had —me say just lost voice or not. You didn’t a word. You looked at quite honestly, you looked at me like was an idiot. No, amazement, in utter Judge.
“McDONALD: looked did, why you I didn’t understand attacked me as because was dumbfounded. was at a loss for words. untruth, there with
“COURT: That’s an Mr. McDonald. You sat face like I an You contempt a look of idiot. watched try explain away can the record all want to. order say any stands. The matter is ended. Don’t more about it. Just have duties, appeal typed. the case. I’ll have it regular seat. Go about I’m not to discuss it more. order, seat, I’ll take a Subject to that
Honor. you.”
“COURT: Thank Appeals The Court of affirmed the court’s trial Palmour, v. App. Ga. 804 attorneys of court. 521) (1982) (three part). granted We judges dissenting attorneys’ whether, application for writ of certiorari to consider of Appeals, process requirements held the due Hayes, 2697, 41 897) (1974), S. SC Taylor v. U. LE2d were satisfied, and contemptuous whether the alleged correctly behavior the attorneys sequestered included the failure of their have own when they witnesses invoked rule of sequestration while state did not.
1. First we must address the motion in this to dismiss filed court by attorney the district' on He judge. behalf contends that punishment because no by upon meted out trial was the court its final, contempt of the case is not and is not hence appealable absent of a certificate review and our an granting application interlocutory In appeal. so the district arguing, (253 802) attorney relies on In re 149 214 Crudup, App. Ga. SE2d (1979), where the of an Appeals appeal Court dismissed not final by attorney an contempt, punishment who held in no but was Peteet, 5) Accord, App. assessed. Harrell v. 134 Ga. 210 (1975).
We need not decide here the the correctness of cases cited above in jurisdiction predicated because our is upon grant this case our of grant attorney’s dismiss, certiorari. Were we to the district motion to our jurisdiction certiorari would be thwarted and the decision of the Appeals prevail. of case The Appeals would Court of decided this case on its merits and this court must not allow its jurisdiction certiorari to be by granting defeated the motion to dismiss. is Accordingly, motion denied.
Nor do we find that the case here is before us moot. See Sibron v. York, 40, 52-54 (88 917) 1889, 20 (1968); New 392 U. S. SC LE2d In re (5th 1978). Stewart, 958, Clearly, 571 F2d 966 trial Cir. where a court attorney contempt, holds an either punish does not him or does byit time, admonishment be attorney at the would never able to appeal if the applicable. mootness doctrine were
2. The requirements process next issue is whether the of due by were satisfied the in the proceedings leading trial court. The case 488, subject Taylor Hayes, is v. 418 supra. U. S. That case holds as follows:
(a) may A trial judge attorney find an contempt court by actually without trial where jury penalty imposed the does not exceed six months.1
(b) trial, During necessary a trial has judge power, the when 2687, Codispoti Pennsylvania, See U. SC 41 LE2d also v. S. 506 (1974). in his courtroom, committed to declare conduct the order maintain and, contemptuous, after him to be observed presence and her speak in his or own opportunity contemnor an affording the further summarily and without punishment behalf, announce announced punishment carrying out of the hearing. notice or trial.2 until after may postponed be trial during (c) delayed, punishment the and Where announcement the judge conduct was not directed toward where the contumacious the not react to the contumacious conduct judge where did controversy, judge such as to the has manner become involved the to hold at the conclusion of trial power hearing and, giving attorney specific charges reasonable notice of the after heard, opportunity impose punishment. to be
(d) delayed, punishment Where the announcement judge where the contumacious conduct was directed toward in such manner where the reacted to contumacious conduct controversy, may give the judge as to become involved including attorney specific charges, hearing, notice of but the heard, attorney’s opportunity to be must be another conducted judge. S., 506, Taylor Hayes,
In his dissent in v. U. supra, Justice *7 Rehnquist majority power said that the had limited the of a trial summarily point a judge punish judge to for to the where (418 “can be driven by out U. of a case” contumacious counsel S. at 530). by “. . . majority saying answered this criticism perhaps holding statement dissenter’s license misconceives our (418 of the U. import undervalues the Due Process Clause.” S. at 503, 10.) fn. the of as in
Applying requirements process Taylor due set forth hand, Hayes, supra, judge v. find that trial the case we the did (b), above, not proceed punishment under that the announcement of (admonition) trial, that delayed until the conclusion of the the allegedly failing conduct of contumacious Mr. McDonald stand respond judge, the court was directed toward the that judge controversy the thereafter became involved Mr. (d) and thus under both set forth prongs test above, process that required contempt hearing due McDonald’s be judge. conducted another isolation,
Considering sequestration of witnesses in the rule the (c) Taylor Hayes might applicable of v. forth well be set above Dowdy, but in view of the that Mr. McDonald must fact be 2 Strickland, (5th 1981). Farmer v. See also F2d 427 Cir. a hearing alleged
afforded as to both before contempts another judge, we find that Mr. similarly to such hearing. entitled witnesses,
3. The statute granting right sequestration the of of (Code 38-1703), OCGA 24-9-61 Ann. provides: “In all cases either § § shall party have the right party have the witnesses other hearing examined out of the In Hall, each other.” Hall v. 220 Ga. 677, 679 400) (1965), SE2d requires we held that “the statute... only that witnesses of the other party hearing be examined out of the of each other.” (Emphasis original.)
However, of Appeals State, held Jones v. Ga. 828, App. (1939), that where the defendant requested that the state’s witnesses sequestered, be but the did state request not the defendant’s also sequestered, witnesses be could, in discretion, court its order sequestration of all witnesses. Thus, here, on retrial be necessary determine whether should have been to probationer’s clear counsel court intended to rule sequestration invoke the probationer’s proof witnesses. Such may practice involve custom of the court known counsel. Our decision that another should hear this matter reinforced fact judge may be as a called practice witness to his in this regard.
Judgment All concur, Smith, J., reversed. except Justices who concurs specially, Gregory, J., participating. 16,
Decided June 1983. McDonald, Sr., for Douglas appellants. W. Dowdy,
Andrew se. pro appellee. Udolf, Attorney, L. Bruce District Smith, Justice, concurring specially. that the evidence in reverse, for the reason
I would also contempt. the trial support record does not court’s *8 IN THE MATTER OF CAMPBELL. Disciplinary (Supreme No.
Per curiam. has II, Georgia, State Bar of Campbell
John W. a member of the voluntary suspension petitioned Disciplinary the State Board for of his conviction practice ground his license to on the law