McFadden, Chief Judge. This appeal challenges findings of direct criminal contempt against two attorneys. Because the trial court’s summary contempt proceeding violated due process and there was insufficient evidence to support the findings of contempt, we reverse. 1. Facts and procedural posture. Attorneys Jason Adams and Shaudi Khansari represented Jasmine Brown at her criminal trial. At the start of the trial, Adams invoked the rule of sequestration, and the trial judge instructed any witnesses in the case to leave the courtroom. The state then presented its case-in-chief and rested. As the defense called its first witness, who was located in a conference room adjacent to the courtroom with another defense witness, the judge stated that the door to the conference room had not been closed. The judge sent the jurors to the jury room, brought the two defense witnesses into the courtroom, and asked them how long they had been in the conference room. Both witnesses indicated that they had been in the room approximately two hours. The judge asked if they had been able to hear her voice from the conference room. One of the witnesses said, “A little, but I wasn’t paying attention.” And the other witness replied, “It goes, but it wasn’t clear.” Without any further inquiry into the matter, the judge then asked the prosecuting attorney if there was a motion from the state. The prosecutor did not make a motion, but said that there was a question about whether the rule of sequestration had been violated and began discussing that one of the defense witnesses was also charged in the case. As the prosecutor was speaking, the trial judge cut her off and sua sponte declared a mistrial. The judge then called the jurors back into the courtroom, told them that there was a mistrial because there had been a violation of the rule of sequestration, and dismissed the jury. After the jury had left, the trial judge summarily held Adams and Khansari in direct contempt of court based on her findings that the two witnesses had violated the judge’s order of sequestration and that the attorneys were responsible for such violations. After announcing her holdings of contempt, the judge denied Adams’ request that both he and Khansari be afforded a hearing at a later date and representation by counsel. Instead, the judge gave the attorneys an opportunity to make a statement regarding her finding of contempt, and after both Adams and Khansari denied being in contempt, the judge reiterated her earlier holding and fined each of them $175. Three days later, the judge issued a written contempt order explaining “that it was within the power of each Defense Counsel to instruct their witnesses regarding the order sequestering them, to direct their witnesses to an appropriate location out of hearing range for purpose of sequestration, and to generally monitor their witnesses and surroundings to ensure that the Court’s order was not violated.” The attorneys filed a motion for reconsideration, which the trial court summarily denied. Adams and Khansari appeal.[1] 2. Summary contempt proceeding. The appellants contend that the trial court’s summary contempt proceeding violated due process. We agree because contrary to the trial court’s finding, the alleged conduct by the attorneys did not constitute direct contempt of court subject to summary adjudication. The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court’s presence (direct contempt) or are committed out of the court’s presence (indirect contempt). If the contempt is direct, a trial court has the power, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. This summary power is authorized where contumacious conduct threatens a court’s immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court. Direct contempts in the presence of the court traditionally have been subject to summary adjudication, to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice. In direct contempt proceedings, in light of the court’s substantial interest in rapidly coercing compliance and restoring order, and because the contempt’s occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation, summary proceedings have been tolerated. As for determining whether an alleged contumacious act was committed in the presence of the court for the purpose of imposing summary punishment, the Supreme Court has stressed the importance of confining summary contempt orders to misconduct occurring in court. Where misconduct occurs in open court, the affront to the court’s dignity is more widely observed, justifying summary vindication. In this regard, although OCGA § 1514 (a) (1) provides that a court may impose summary punishment for alleged contemptuous conduct committed so near to the presence of the court as to obstruct the administration of justice, the Court of Appeals of Georgia has properly held that this statement must yield to the fundamental constitutional right to due process of law. Thus, typically, an alleged contumacious act may only be said to have occurred in the presence of the court, warranting summary contempt proceedings, if the act was committed in open court. On the other hand, where the alleged contumacious acts are committed outside the court’s presence, the considerations justifying expedited procedures do not pertain. Thus, summary adjudication of indirect contempts is prohibited, and due process requires that a person who is tried for indirect criminal contempt is entitled to more normal adversary procedures. Among other things, he or she must be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses. Ramirez v. State, 279 Ga. 13, 14-15 (2) (608 SE2d 645) (2005) (citations and punctuation omitted; emphasis supplied). In this case, there was no contumacious conduct by the attorneys in open court. Indeed, the trial judge made no finding that the attorneys intentionally violated or refused to comply with the order of sequestration in open court; rather, the judge premised her finding of contempt on each attorney’s purported failures to instruct their witnesses regarding the order sequestering them, to direct their witnesses to an appropriate location for sequestration, and to generally monitor their witnessess. As the trial judge acknowledged, she was unaware that the witnesses were in the conference room until attorney Adams called them to testify for the defense. So it is clear that the purported misconduct by the attorneys with regard to their witnesses being in the conference room occurred outside the presence of the judge. Because the attorneys’ alleged acts did not occur in open court, this is not a case in which summary contempt proceedings were appropriate based on an “occurrence [of direct contempt] before the court [that] reduce[d] the need for extensive factfinding[.]” Ramirez, supra at 14 (2) (citation and punctuation omitted). On the contrary, the alleged conduct in this case, committed outside the judge’s presence, required extensive findings of fact to determine exactly what each attorney did or did not do with regard to sequestering the witnesses; to determine whether either of the two defense witnesses actually heard testimony of other witnesses from the conference room, and if so, precisely what testimony was heard; and to determine if there was in fact a violation of the sequestration order, and if so, whether Adams or Khansari had any knowledge of it. Under these circumstances, summary adjudication was improper and “due process required that [each attorney's] contempt hearing be conducted by another judge.” Dowdy v. Palmour, 251 Ga. 135, 142 (2) (304 SE2d 52) (1983) (reversing finding of direct contempt against two attorneys for allowing their witnesses to remain in the courtroom after the judge had ordered sequestration of all witnesses). Because Adams and Khansari were denied their due process rights to a hearing before another judge, the findings of contempt against them must be reversed. 3. Sufficiency of the evidence. “Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” In re Thompson, 339 Ga. App. 106, 109 (1) (793 SE2d 462) (2016) (citation and punctuation omitted). “To prove a criminal contempt, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully.” In re Hadaway, 290 Ga. App. 453, 457 (659 SE2d 863) (2008) (citation and punctuation omitted). “On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Murphy v. Murphy, 330 Ga. App. 169, 176 (6) (a) (ii) (767 SE2d 789) (2014) (citation and punctuation omitted). Viewed in that light, the evidence does not show beyond a reasonable doubt that either Adams or Khansari wilfully violated the trial court’s order of sequestration. As an initial matter, there is no evidence that the sequestration order was in fact violated by either of the two defense witnesses who were in the conference room. The rule of sequestration provides that “at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion.” OCGA § 24-6-615. “The purpose of the sequestration rule is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion.” Jones v. State, 302 Ga. 488, 493 (3) n. 5 (807 SE2d 344) (2017) (citation and punctuation omitted). Here, the record shows at most that the two witnesses could hear the judge’s voice at some point while they were in the conference room, although there is no evidence that any particular comments by the judge were in fact heard by either of the witnesses. Moreover, there is no evidence that they heard the testimony of any other witnesses. Even if a rational trier of fact could infer from the fact that the two witnesses could hear the judge’s voice that they also could have possibly heard the voices of testifying witnesses, there is no evidence as to any specific testimony that was actually overheard and certainly no evidence that the defense witnesses heard anything that would have shaped their own testimony or resulted in fabrication and collusion. Indeed, there is not even any evidence as to what the two defense witnesses own testimony would have been. Because there is not evidence beyond a reasonable doubt that the defense witnesses violated the order of sequestration directed toward them and the other witnesses, it follows that attorneys Adams and Khansari could not be found in contempt beyond a reasonable doubt for being responsible for such a purported violation. And even if there was sufficient evidence that either of the two defense witnesses had violated the order of sequestration, there is not evidence beyond a reasonable doubt that either Adams or Khansari wilfully assisted or was otherwise responsible for any such violation. At most, the record shows that both Adams and Khansari knew that their two witnesses were in the conference room and that Adams had directed the defense witnesses there for sequestration in order to separate them from the state’s witnesses (the underlying criminal case arose out of a confrontation between two groups of people). But there is no evidence that either attorney knew of any trial testimony being overheard by their witnesses. In short, there simply is not evidence beyond a reasonable doubt “that either [Adams or Khansari] wilfully violated the [sequestration] order. . . . Accordingly, the trial court’s judgment finding them in contempt must be reversed.” In re Hardaway, supra at 457-458. Judgment reversed. Senior Appellate Judge Herbert E. Phipps concurs. McMillian, P.J. dissents.* THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2(a).
