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2005-UP-122 - State v. Sowell
State Grand Jury Act

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Kenneth E. Sowell,        Appellant.


Appeal From Greenwood County
Wyatt T. Saunders, Jr, Circuit Court Judge


Unpublished Opinion No. 2005-UP-122
Heard November 10, 2004 – Filed February 17, 2005


AFFIRMED


Kenneth E. Sowell, of Greenville, pro se, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John M. McIntosh, Chief, State Grand Jury, Sherri A. Lydon, and Assistant Attorney General Jennifer D. Evans, all of Columbia, for Respondent.

PER CURIAM:  Kenneth Sowell appeals the circuit court’s order finding him in criminal contempt for disclosing grand jury information subject to a protective order.  We affirm.

FACTS

The State Grand Jury conducted an investigation into a methamphetamine ring in Greenville, Greenwood, and Laurens counties.  As a result of this investigation, the grand jury “true-billed” an indictment against Bobby Joe Lewis for trafficking and conspiracy to traffic methamphetamine.  After being charged, Lewis hired Sowell to represent him on the charges.  Sowell came into contact with Lewis through Kenneth Curtis, who was also a target of the investigation and previously a client of Sowell.  According to Curtis, he paid Sowell to represent Lewis with the understanding that if Lewis intended to “flip,” Sowell would let him know.

In the course of his representation of Lewis, Sowell requested that the Attorney General’s office provide him with information that was part of the grand jury investigation.  Because the Legislature has deemed this information to be secret, its dissemination is governed by the provisions of section 14-7-1720 of the South Carolina Code of Laws.  S.C. Code Ann. § 14-7-1720(A) (Supp. 2004) (“State grand jury proceedings are secret, and a state grand juror shall not disclose the nature or substance of the deliberations or vote of the state grand jury.”); see Anderson v. State, 338 S.C. 629, 632, 527 S.E.2d 398, 399 (Ct. App. 2000) (recognizing this state’s long-held policy regarding the secrecy surrounding grand jury proceedings). 

Pursuant to this statute, the Attorney General “may not disclose the testimony of a witness examined before a state grand jury or other evidence received by it except when directed by a court for the purpose of . . . providing the defendant the materials to which he is entitled pursuant to Section 14-7-1700.”  S.C. Code Ann. § 14-7-1720(A)(4)(Supp. 2004); see S.C. Code Ann. § 14-7-1700 (Supp. 2004) (“Subject to the limitations of Section 14-7-1720(A) and (D) and Rule 5, South Carolina Rules of Criminal Procedure, a defendant has the right to review and to reproduce the stenographically or electronically recorded materials.”).  “If the court orders disclosure of matters occurring before a state grand jury, the disclosure must be made in that manner, at that time, and under those conditions as the court directs.”  S.C. Code Ann. § 14-7-1720(A) (Supp. 2004).

In this case, the judge issued a protective order that permitted the dissemination of the grand jury information to Sowell, but imposed certain conditions on the disclosure.  The order provides in relevant part:

IT IS HEREBY ORDERED that the Attorney General is protected if he chooses to disclose to the attorneys for the defendants in the above-captioned cases testimony taken in the State Grand Jury and interviews of witnesses and other documents which must subsequently be disclosed under normal circumstances at trial.  It is understood that the State Grand Jury material is being provided only for purposes of the trial of the above-captioned cases.  The attorney for the defendants and the defendants are bound by the secrecy provisions of § 14-7-1720.

IT IS FURTHER ORDERED that, pursuant to S.C. Code Ann. §§ 14-7-1700 and –1720(A) (Law. Co-op. 1976), the defendants and their attorneys are prohibited from photocopying any State Grand Jury testimony, interviews of witnesses and any other documents that may be disclosed to the defendants and their attorneys in reference to the above-captioned case.  All such materials shall be completely destroyed at the conclusion of the case. 

Nothing in this Order prohibits the defendants or their attorneys from using Brady material for purposes of preparing for trial.

The relevant materials were made available to Sowell after the protective order was signed.  Sowell admits the information was shared with Gene Gore, a private investigator Sowell had employed numerous times.  Sowell testified he informed Gore that the information he was sharing with him could not be given to anyone and the documents must be kept “under lock and key at all times.”

Significantly, Gore also sold used cars, and Kenneth Curtis had previously purchased five or six cars from him.  It was ultimately revealed that Curtis paid Gore for his investigative services.  A portion of the evidence subject to the court order led to another member, Floyd Ballew, of the methamphetamine ring who implicated Curtis.  Gore found Ballew and had him sign an affidavit to this affect.  Gore then used this affidavit to confront Curtis in an attempt to acquire information. 

This disclosure of information by Gore to Curtis was revealed when Curtis was caught on a confidential informant’s tape stating he was aware he was the subject of the State Grand Jury investigation.  Based on this information, the State filed a motion for Sowell to show cause why he was not guilty of criminal contempt.

After a hearing, the trial judge found Sowell guilty of criminal contempt of court for willfully disclosing information subject to a protective order.  Specifically, the judge held the State “clearly established that [Sowell] was not directed by the Court to release this information to Gore nor did he explain the secrecy requirement of the Protective Order.”  The judge sentenced Sowell to ninety days imprisonment suspended upon the payment of a $5,000 fine within ninety days.  Subsequently, Sowell filed a motion for reconsideration.  The judge denied this motion, but reduced the amount of the fine to $2,500.  

Sowell appeals his conviction of criminal contempt of court.

STANDARD OF REVIEW

A determination of contempt ordinarily resides in the sound discretion of the trial court.  Whetstone v. Whetstone, 309 S.C. 227, 233, 420 S.E.2d 877, 880-81 (Ct. App. 1992).  “This court will reverse a trial court’s decision regarding contempt only if it is without evidentiary support or is an abuse of discretion.   An abuse of discretion can occur where the trial court’s ruling is based on an error of law.”  First Union Nat’l Bank v. First Citizens Bank & Trust Co. of South Carolina, 346 S.C. 462, 466, 551 S.E.2d 301, 303 (Ct. App. 2001) (citations omitted).

DISCUSSION

Sowell argues the circuit court judge erred in finding him in criminal contempt. [1]   He contends he was permitted to reveal grand jury information to his investigator and, thus, there was no evidence to support the judge’s decision.  We disagree.

“The power to punish for contempt is inherent in all courts and is essential to the preservation of order in judicial proceedings.”  In re Diggs, 344 S.C. 434, 434, 544 S.E.2d 632, 632 (2001).  A court’s contempt power arises when an individual willfully disobeys an order of the court.  Id.  “A willful act is defined as one ‘done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.’”  Spartanburg County Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988) (quoting Black’s Law Dictionary 1434 (5th ed. 1979)).  “Intent for purposes of criminal contempt is subjective, not objective, and must necessarily be ascertained from all of the acts, words and circumstances surrounding the occurrence.” State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct. App. 1994). 

However, “[o]ne may not be convicted of contempt for violating a court order which fails to tell him in definite terms what he must do.”  Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973).  In a criminal contempt proceeding, the State has the burden of proving the guilt of the defendant beyond a reasonable doubt.  State v. Bowers, 270 S.C. 124, 131, 241 S.E.2d 409, 412 (1978).  “[B]efore a person may be held in contempt, the record must be clear and specific as to acts or conduct upon which such finding is based.”  State v. Harper, 297 S.C. 257, 258, 376 S.E.2d 272, 274 (1989).  

As a threshold matter, we note that Sowell neither challenges the validity of the order nor the application of section 14-7-1720 to him. [2]   Therefore, we do not analyze this issue.  Instead, he admits disclosure of the material to his investigator, but claims this disclosure did not violate the protective order.

Section 14-7-1700 grants a defendant the right to review and reproduce grand jury material.  This right is limited by the strictures of sections 14-7-1720(A) and (D), as well as Rule 5 of the South Carolina Rules of Criminal Procedure.  Section 14-7-1720(A) requires that the disclosure to the defendant “must be made in that manner, at that time, and under those conditions as the court directs.”  By the terms of the order, the judge imposed on Sowell the same secrecy provisions that are applicable to the Attorney General under section 14-7-1720(B). [3]   Therefore, if Sowell intended to disclose this information to Gore in order to prepare an adequate defense for Lewis, he was bound by the mandatory language of section 14-7-1720(B)(2), which provides in pertinent part:

The Attorney General or his designee promptly shall provide the presiding judge before whom was impaneled the state grand jury whose material has been disclosed, the names of the persons to whom the disclosure has been made, and shall certify that he has advised these persons of their obligation of secrecy under this section.

S.C. Code Ann. §14-7-1720 (B)(2) (Supp. 2004). [4]  

          Applying these provisions to the instant case, we hold the judge’s decision was not based on an error of law given he relied on the appropriate legal standards for a finding of contempt.  In determining Sowell willfully violated the protective order, the judge found the State presented clear and specific evidence of Sowell’s conduct and that Sowell was guilty beyond a reasonable doubt.

Furthermore, the trial judge sat as the trier of facts.  Thus, based on our limited standard of review, we will not disturb his findings unless they are without evidentiary support.  We find there is evidence to support the judge’s ruling.  First, there is no dispute that Sowell failed to inform the court that he disclosed the grand jury material to Gore until prompted by the State’s motion for a rule to show cause.  In terms of the second requirement under section 14-7-1720(B)(2), the judge concluded Sowell failed to explain to Gore the obligation of secrecy.  In support of this ruling, the judge implicitly rejected the testimony of Sowell and, instead, found Gore and Curtis to be credible witnesses.  We give due deference to the trial judge’s consideration of credibility matters.  See Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981) (On appeal, this court is not required to ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.). 

In his findings of fact, the judge stated Gore testified, “he was not given any instruction regarding the release of this information to any other individuals from the Defendant.”  Additionally, “Gore admits that the information contained in this material was related to Mr. Kenny Curtis.”  As to Curtis, the judge found that “Curtis testified that he was kept apprized throughout this investigation of the material that pertained to him and paid Gore five thousand dollars ($5,000) to act as a private investigator for the Defendant.”  These findings are supported by the testimony of Gore and Curtis.  Based on the specific facts of this case and our limited standard of review, we hold the judge did not abuse his discretion in finding Sowell in criminal contempt of the protective order. 

This decision should not be interpreted to mean that a defense attorney is precluded from disclosing state grand jury material to his or her staff or investigator.  This position, which the State appeared to advocate at oral argument, would put defense counsel at a disadvantage in that it would severely limit counsel’s ability to prepare an adequate defense.  However, if disclosure is permitted then defense counsel must abide by the conditions imposed by a court pursuant to section 14-7-1720(A).  By requiring defense counsel to proceed through the proper channels, similar to the State, the court will be able to preserve the sanctity of grand jury material.

CONCLUSION

Based on the foregoing, the circuit court judge’s finding of criminal contempt is

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.  


[1]   We note Sowell raises five separate issues in his brief.  Because all of the issues challenge the finding of contempt, we have consolidated them in the interest of clarity.

[2]    The plain language of section 14-7-1720 applies only to jurors, individuals involved in the state grand jury process, and law enforcement personnel who are entitled to the information under subsection (B) based on their assistance to the Attorney General.  Therefore, the secrecy provisions of section 14-7-1720 would not apply to Sowell unless the judge, as in this case, limited the use of the information pursuant to the court’s power to condition the disclosure of information.  S.C. Code Ann. § 14-7-1720 (A) (Supp. 2004).

[3]    In the protective order, the judge only generally referenced the secrecy provisions of section 14-7-1720.  However, in the contempt order, the judge specifically relied on subsection A when he concluded that Sowell failed to obtain prior approval of the court before disclosing the information.  The judge also implicitly relied on subsection B in finding that Sowell failed to explain to Gore the secrecy requirement of the protective order.  The judge’s reliance on subsection A would appear to be inapplicable to Sowell given that subsection controls the initial disclosure to the Attorney General and forms the basis for the protective order.  Based on our review of section 14-7-1720, we believe the procedure governing Sowell’s disclosure of the grand jury information was controlled by section 14-7-1720(B)(2), which does not require prior approval of the court.   This error, as will be discussed, does not affect our ultimate decision.

[4]    We note that the language of our state statute is similar to that of Rule 6(e)(3) of the Federal Rules of Criminal Procedure.  See State v. Follin, 352 S.C. 235, 246, 573 S.E.2d 812, 817 (Ct. App. 2002) (“Federal Rule of Criminal Procedure 6(e) is very similar to our statute regarding disclosure of secret information to subsequent grand juries.”).    Despite the fact that our statute tracks the language of the federal rule, our research has not revealed any federal case law that provides definitive guidance on the issue presented in this appeal.  See Sara Sun Beale, et al., Grand Jury Law and Practice §5:7 (2d ed. 2003), available in Westlaw, GRJURLAW (“In particular, it is not clear whether [Rule 6(e)(3)(A)(i)] permits the attorney to make further disclosures of the grand jury materials to others.”); Id. (“[T]he courts are not likely to accept any argument that disclosures to private investigators assisting the prosecutors with a criminal case would be permitted under the ‘performance of duties’ clause since the same disclosure would be barred by the more specific subsection of the Rule that governs disclosures to agents assisting the government in the criminal case.  By contrast, a prosecutor’s disclosure of grand jury materials to his secretary, paralegal, or law clerk would be regarded as routine disclosure closely tied to the prosecutor’s role in conducting the grand jury proceeding and any subsequent criminal action.”); 1 Charles Alan Wright, Federal Practice and Procedure § 107, at 398-400  (3d ed. 1999) (“[M]achinery has now been provided by which federal prosecutors can utilize, without a court order, other government personnel.  The government personnel to whom grand-jury material is disclosed under this provision cannot use the material in a manner that would not be permissible for the government attorney himself.”).  Given the divergent views analyzing this issue and the fact that Sowell does not challenge the validity of the protective order, we have chosen not to establish a bright line rule for a defense attorney’s disclosure of grand jury information.  Instead, we limit our review of this issue by applying the facts of the instant case to our state statutory language within the context of our limited standard of review.