S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State of South
Carolina, Respondent,
v.
Patricia Kennerly, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Orangeburg County
Luke N. Brown, Jr., Circuit Court Judge
Opinion No. 25035
Heard November 4, 1999 - Filed December 20,1999
AFFIRMED
Clyde C. Dean, Jr., of Orangeburg, for petitioner.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Salley W. Elliott, and Assistant
Attorney General Caroline C. Tiffin, all of Columbia;
and Solicitor Walter M. Bailey, Jr., of Summerville, all,
for respondent.
TOAL, A.J.: Patricia Kennerly ("Kennerly") seeks reversal of her
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State v. Kennerly
conviction for contempt. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Kennerly was a juror in the death penalty trial of Gregory Benjamin tried in April
1996 in Orangeburg County. The jury was sequestered during the trial.. After the
trial concluded, the solicitor of the First Judicial Circuit filed an unverified petition
in the General Sessions Court alleging two counts of contempt by Kennerly. The
petition alleged: (1) Kennerly did not disclose during individual or group voir dire
her relationship with either the defendant Gregory Benjamin or his sister Tina
Benjamin, a defense witness; and (2) despite warnings by the Judge to the contrary,
Kennerly, on repeated occasions during the guilt phase of the trial, initiated
discussions about the case with other jurors. Kennerly stated to fellow jurors she
knew the defendant and his sister, Tina, and would not vote for the death penalty.
The solicitor alleged that Kennerly's purpose was to "undermine the entire trial and
was contemptuous of this Court and the entire judicial system."
A contempt hearing was held on October 28, 1996. On December 11, 1996, the trial
court found Kennerly in contempt and sentenced her to six months imprisonment.
The Court of Appeals affirmed Kennerly's conviction on June 15, 1998. This Court
granted certiorari and the sole issue on appeal is:
Did the Court of Appeals err in holding that the accused was not
entitled to dismissal of contempt charges where the alleged
contempt occurred during voir dire and conversations with other
jurors during the trial, and the proceedings against her were
commenced by an unverified petition?
LAW/ANALYSIS
Kennerly argues that since the alleged contempt occurred outside the sight
and hearing of the judge, the solicitor's unverified petition was fatally defective. We
disagree.
In Toyota of Florence v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994), we held
the failure to attach an affidavit or verified petition to the rule to show cause is
fatally defective when the alleged contempt was constructive. Therefore, if
Kennerly's contemptuous conduct can be classified as constructive, the solicitor's
failure to verify his petition would be fatal.
Constructive contempt is contempt that occurs "outside the presence of the
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State v. Kennerly
court." Id. at 267, 442 S.E.2d at 617; State v. Johnson, 249 S.C. 1, 152 S.E.2d 669
(1967). In contrast, direct contempt involves contemptuous conduct occurring in the
presence of the court. State v. Goff, 228 S.C. 17, 88 S.E.2d 788 (1955). South
Carolina courts have always taken a liberal and expansive view of the "presence"
and "court" requirements. This State's courts have held the "presence of the court"
extends beyond the mere physical presence of the judge or the courtroom to
encompass all elements of the system. See, e.g., State v. Goff, supra; In the Matter
of Golden, 329 S.C. 335, 496 S.E.2d 619 (1998); In the Matter of Goude, 296 S.C.
510, 374 S.E.2d 496 (1998).
In two recent attorney disciplinary matters, this Court imposed public
reprimands since the attorney's conduct was degrading to the "court." However,
neither matter involved conduct which occurred solely in front of the judge or inside
the courtroom. In Matter of Goude, supra, this Court upheld the trial judge's
imposition of contempt against Mr. Goude, and imposed a public reprimand for
conduct occurring inside and outside the courtroom in the hallway after the verdict
was returned. See also In the Matter of Golden, supra (a public reprimand
appropriate where the misconduct occurred during two depositions).
In State v. Goff, supra, the defendant's contemptuous conduct occurred on
the courthouse steps after a witness testified against him. We found the defendant
in direct contempt of court stating "[w]hen the [c]ourt is in session, in order to
extend its protection to its officers, jurors and witnesses, it must be considered to
be present where those persons are required to be in the performance of their
several duties." Goff, 228 S.C. at 23, 88 S.E.2d at 791. (emphasis added). In Goff
we stated that the court "consists not of the judge, the jury, or the jury room
individually, but all of these combined. The court is present wherever any of its
constituent parts is engaged in the prosecution of the business of the court according
to the law." Id. at 24; 88 S.E.2d at 792; see also 17 AM. JUR. 2d Contempt 19
(1990). In Kennerly's case, the conduct occurred in the jury room and at the hotel
where the jury was sequestered. The conduct occurred where the jury was required
to be, and while the jury was performing their legal duties.
Many states also follow a liberal interpretation of the term "in the presence
of the court." In People v. Higgins, 16 N.Y.S.2d 302 (Sup.Ct. 1939), the New York
Supreme Court found a sheriff in direct contempt for purchasing liquor and having
sexual intercourse with the members of the jury he was assigned to guard. The
court held "contempt committed in the immediate view and presence of any
constituent part of [the court]... is contempt in the immediate view and presence
of the court." Id. at 305. Since the jury was a constituent part of the court, and the
contemptuous behavior was within its sight and hearing, the contempt was deemed
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State v. Kennerly
"in the presence of the court." Id. Other states have also taken the "constituent
parts" approach to defining "in the presence of the court." See People v. Owens,
248 N.E.2d 104, 105 (Ill. 1969) (holding defendant in direct contempt where
contemptuous conduct occurred not in the "presence of the judge, but in a place set
apart for the use of a constituent or integral part of the court."); Moss v. Arnold, 74
P.2d 491, 505-506 (Okla. Crim. App. 1938) (holding the court is present "wherever
any constituent part of the court is engaged in the prosecution of the business of the
court according to law."); Lockett v. State, 224 S.W. 952, 953 (Ark. 1920) ("in the
hearing and presence of the court necessarily relates to its constituent, functioning
parts."); see also In Re Caruba, 51 A.2d 446 (ICJ. Ch. 1947); 13 Tx. JUR. 3d
Contempt 2 (1993).
Other South Carolina cases have found constructive contempt in instances
involving jury tampering. In these cases, the jury tampering took place before the
jury was impaneled and before the court was in session. See State v. Johnson, 249
S.C. 1, 152 S.E.2d 669 (1967) (holding there was constructive contempt where
improper contacts were made with potential jurors before the jury was impaneled);
State v. Weinberg, 229 S.C. 286, 92 S.E.2d 842 (1956) (holding that improper
contact with people drawn for the jury, but who never served, was constructive
contempt because it was not in the "presence of or so near the court as to interrupt
its proceedings"). To the extent these cases hold tampering with a jury pool is
constructive contempt, they are overruled. The jury pool constitutes an integral,
constituent part of the court and contemptuous acts within their sight or hearing will
constitute direct contempt.
Because Kennerly's conduct occurred within the sight and hearing of an
integral and constituent part of the court, her conduct was "in the presence of the
court" and constituted direct contempt.
CONCLUSION
For the foregoing reasons, the Court of Appeals's finding that no affidavit or
verified petition was required since Kennerly was in direct contempt, is affirmed.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.
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