Arnett v. Meade

Decision Date22 January 1971
Citation462 S.W.2d 940
PartiesTupp ARNETT, Petitioner, v. Judge N. Mitchell MEADE, Respondent.
CourtUnited States State Supreme Court — District of Kentucky

Roger B. Sledd, Lexington, Edward F. Prichard, Jr., Frankfort, for petitioner.

George E. Barker, Commonwealth's Atty., Lexington, for respondent.

CULLEN, Commissioner.

Judge N. Mitchell Meade of the Fayette Circuit Court found Tupp Arnett to be in contempt of court for refusing to answer certain questions propounded to him as witness called by the prosecution in a criminal case. Holding unconstitutional so much of KRS 421.140 and 432.260 as would prohibit his imposing such a punishment, the judge, without impaneling a jury, sentenced Arnett to a term of 30 days in jail and a fine of $500. Arnett has sought from this court an order prohibiting enforcement of the contempt punishment. He maintains not only that the punishment exceeds the power of the circuit judge but that he was not in contempt.

The refusal to answer the questions was based upon the invoking by Arnett of the protection of the Fifth Amendment against self-incrimination. The first question confronting this court is whether the circumstances indicated such a probability of Arnett's being subjected to a criminal prosecution, if he answered the questions, to warrant his invoking the Fifth Amendment. In answering this question it is necessary to determine, first, what crimes might reasonably have been anticipated to be disclosed by Arnett's answers, and, second, whether Arnett would have immunity from prosecution for those crimes, under the traditional test of double jeopardy, or under the theories of collateral estoppel or merger.

A statement of the facts is essential to an understanding of the issues.

Edward Lyle Goldy, Warren J. Flannery and Billie Utterback were indicted on two charges; one of kidnapping Job Turner, Jr., for the purpose of holding him for ransom, in violation of KRS 435.140; and the other of imprisoning Turner without demand for ransom, in violation of KRS 435.150. Tupp Arnett was indicted on charges of aiding and abetting the other defendants in the commission of the charged offenses.

The case went to trial against all four defendants. Turner was introduced as a witness and he testified as to the circumstances of his alleged kidnapping, at the outset of which Goldy, standing on the road by a purportedly disabled 1965 lavender Chevrolet automobile, induced Turner to give him a ride, whereupon Goldy forced Turner to drive to a point in the country, where he was transferred to another automobile. He identified Goldy, Flannery and Utterback as participants but gave no evidence implicating Arnett. At the conclusion of Turner's testimony the Commonwealth's attorney moved that the indictment against Arnett be dismissed, stating that 'under the circumstances the Commonwealth is not going to be able to make out a case against Tupp Arnett.' The motion was sustained and the indictment against Arnett was dismissed. However, the Commonwealth's attorney then called Arnett to the stand as a witness for the prosecution, and undertook to question him.

After obtaining from the witness the admission that his name was Tupp Arnett, the Commonwealth's attorney asked him this question: 'On or about the 17th day of February of this year, Mr. Arnett, did you own a lavender color '65 or '66 Chevrolet?' On the advice of the attorney who had represented him when the trial commenced, and who was representing the other defendants, Arnett refused to answer, claiming the privilege against self-incrimination. The trial judge forthwith held him in contempt and directed that he be confined in jail 'until he purges himself of contempt by answering the question or questions to be propounded to him by the Commonwealth's attorney.' Arnett promptly made application to this court for an order of prohibition and an order was entered directing the trial judge to conduct an appropriate hearing out of the presence of the jury and make an adequate record thereof so as to enable the court to determine whether Arnett was within the protection of the Fifth Amendment as to questions to be propounded to him. The order further directed that Arnett be admitted to reasonable bail pending final order of this court.

The trial judge then proceeded to conduct a hearing out of the presence of the jury, at which Arnett was represented by counsel other than the one who represented the defendants still on trial. This hearing consisted of the asking by the Commonwealth's attorney of a number of questions of Arnett, his refusals to answer them, and the trial judge's ruling, as each refusal was made, that Arnett was in contempt. The questions were such that affirmative answers would have disclosed that on February 17, 1970, Arnett owned a 1965 or 1966 lavender Chevrolet; that on that day he saw Utterback and Goldy and at their request drove them in his automobile to Lexington; that later on that day he turned his automobile over to Goldy and Utterback and he took Utterback's automobile and drove it to a point on a rural road in Fayette County; that he waited there for the arrival of Goldy and Utterback and eventually saw Utterback drive up in Arnett's lavender automobile; that subsequently Goldy and Turner arrived in Turner's automobile, driven by Turner; that Turner, Goldy and Utterback got into Utterback's automobile and drove away to the east; that Arnett then followed them in his automobile; that he was promised money by Utterback or Goldy for the use of his automobile on that occasion; that he had discussed with Flannery the matter of using his automobile for the purpose of transporting Turner to Salt Lick to meet Flannery.

The trial judge ruled that answering the questions would not incriminate Arnett because of the protection of the rule of double jeopardy arising from the fact that the indictment against Arnett for aiding and abetting had been dismissed after commencement of the trial. The judge further ruled that KRS 421.140 and 432.260 are 'unconstitutional in infringing upon the inherent authority of this Court to govern its own proceedings,' and he imposed upon Arnett a jail sentence of 30 days and a fine of $500. However, he admitted Arnett to bail pending a review by this court of his rulings.

In the meantime the trial of Goldy, Flannery and Utterback had been suspended. When Arnett remained steadfast in his refusal to testify the trial court ordered that the trial resume, and it did, resulting in a hung jury and a mistrial. An order then was entered for a new trial, which is yet to be held.

As stated at the outset of this opinion, the first determination to be made is what crimes might reasonably have been anticipated to be disclosed by Arnett's answers. We approach the question using the guidelines set forth in Young v. Knight, Ky., 329 S.W.2d 195 at 201, as follows:

'* * * it is uniformly recognized that it is for the court and not the witness to say whether refusal to answer is justified. * * * Should it appear to the court that in the setting in which the question was asked there is a reasonable possibility of exposure to prosecution or involvement in a crime by reason of a responsive answer, the claim of privilage must prevail. But the danger of self-incrimination must be real and sustantial in the ordinary course of things, for the law does not permit a witness arbitrarily to hide behind an imaginary or unappreciable danger or risk. * * *

'The particular question which a witness refuses to answer may not be considered in isolation. In adjudicating the right of immunity the court must be able to discern from the character of the question the other facts adduced in the cause some tangible and substantial probability that the answer of the witness might help to convict him of a crime.

'* * * The Supreme Court seems to have covered the whole matter in Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 818, 95 L.Ed. 1118, insaying * * * 'To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question * * * might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." * * *'

See also Kinslow v. Carter, Ky., 282 S.W.2d 141; Commonwealth v. Rhine, Ky., 303 S.W.2d 301; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.

There is nothing in the circumstances of the instant case to suggest that Arnett has a police record or in the past has been involved in a course of criminal activities, so there is no basis for anticipating that answering the questions might expose Arnett to prosecution for some offense wholly unrelated to the Turner affair. Cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. In the setting in which the questions were asked, and from the questions themselves, the only crimes of which there appears to have been any reasonable possibility of disclosure of Arnett's involvement would be (1) aiding and abetting in Turner's abduction or detention, (2) common-law conspiracy to abduct or detain Turner, or (3) statutory banding and confederating to abduct or detain Turner, KRS 437.110.

Our consideration is addressed now to the question of whether Arnett is immune from prosecution for the three crimes above listed, because, if so, his disclosures of involvement in those crimes would not incriminate him. Plainly, Arnett cannot again be prosecuted for aiding and abetting in Turner's abduction or detention, because he was directly in jeopardy on that charge. But the answer as to the other two crimes is not so plain.

As concerns the common-law offense of conspiracy, which is a misdemeanor, it possibly could be held that a prosecution of Arnett for that offense would be precluded under the doctrine of merger. See Queen v....

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