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25035 - State v. Kennerly

Shearouse Adv. Sh. No. 39
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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