Baggett v. State, CA

• Decision Date: 29 May 1985
• Docket Number: No. CA,CA
• Citation: 690 S.W.2d 362,15 Ark.App. 113
• Parties: Samuel Bruce BAGGETT, Jr., Appellant, v. STATE of Arkansas, Appellee. CR 84-217.
• Court: Arkansas Court of Appeals

Page 362

690 S.W.2d 362

15 Ark.App. 113

Samuel Bruce BAGGETT, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 84-217.

Court of Appeals of Arkansas Division II.

May 29, 1985.

Robert E. Garner, Warren, for appellant.

Steve Clark, Atty. Gen. by Clint E. Miller, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Judge.

Appellant Samuel Bruce Baggett, Jr., was tried before a Jefferson County jury on August 8 and 9, 1984, and found guilty of interference with custody in violation of Ark.Stat.Ann. § 41-2411 (Repl.1977), and sentenced to the Arkansas Department of Correction to a term of 3 1/2 years and fined $5,000. We affirm.

Appellant failed to deliver his minor son to the Warren City Police Station in Bradley County on July 25, 1982, pursuant to the requirements of the terms of a custody decree issued by the Jefferson County Chancery Court. The mother (custodial parent) was to pick up and return the child to the custodial residence in Jefferson County.

On July 28, 1982, a felony information was filed in Jefferson County Circuit Court charging appellant with interference with custody, a violation of Ark.Stat.Ann. § 41-2411.

On August 6, 1982, the Chancery Court of Jefferson County entered the following ex parte order:

The Court finds that the defendant, Bruce Baggett, is guilty of contempt of court as of July 25, 1982, for not returning the child of the parties to the plaintiff at the Warren Police Station as previously ordered. He is hereby sentenced by this court to the Jefferson County Jail for a period of ninety (90) days and a fine of $1,000.00 is hereby levied against him. The Court will consider remitting part of the monetary fine and jail sentence upon proper application by the defendant if made within five (5) days after this order is brought to the defendant's attention as proven by the greater weight of the evidence. The Court further finds that in the event the defendant does not return the child to the plaintiff within five (5) days after notice of this court's finding, an additional fine of $100.00 per day is hereby levied for every day until the child is returned to the petitioner. The Court will consider additional incarceration as well.

The child, with his father, was found by the F.B.I. in Nashville, Tennessee, on August 3, 1983.

I.

APPELLANT ALLEGES IN HIS FIRST CONTENTION FOR REVERSAL THAT HIS EARLIER CONTEMPT FINDING BY THE JEFFERSON COUNTY CHANCERY COURT PROHIBITED THE SUBSEQUENT FELONY PROSECUTION BY THE JEFFERSON COUNTY CIRCUIT COURT FOR INTERFERENCE WITH CUSTODY BECAUSE IT PLACED HIM IN DOUBLE JEOPARDY.

Both the Arkansas and United States Constitutions prohibit placing a person twice in jeopardy for the same offense. Ark. Const. art. 2, § 8; U.S. Const. amend. 5. In Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971), the Arkansas Supreme Court stated that the test of double jeopardy is not whether a defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense, and where two statutes are intended to suppress different evils, conviction under one will not preclude prosecution of the other.

Both appellant and the State agree that if the Jefferson County Chancery Court's contempt proceeding of August 6, 1982, was civil in nature, there would be no former jeopardy defense to appellant's prosecution for interference with custody in the Jefferson County Circuit Court. The State argues that the chancery contempt proceeding was civil in nature. Appellant argues just as vigorously that it was civil and criminal in nature and if it was criminal, then double jeopardy would have been a defense.

Shillintani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), provides the following test to determine if contempt findings are civil or criminal in nature--"What does the court primarily seek to accomplish by imposing sentence?" The Arkansas Supreme Court in Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974), stated that: "If the main purpose is to punish in order to maintain the dignity, integrity and authority of, and respect towards the court, then the contempt is criminal in nature." A later case, Ward v. Ward, 273 Ark. 198, 617 S.W.2d 364 (1981), stands for the same principle. Ward, supra, also noted that civil contempt proceedings are intended to protect and enforce the rights of private parties by compelling obedience to court orders and decrees. We agree with the parties' conclusion that criminal contempt punishes whereas civil contempt coerces.

When faced with the question of whether a contempt proceeding was civil or criminal in nature, some jurisdictions have utilized the approach of determining whether the act giving rise to the contempt proceeding was committed in the presence of the court (direct) or committed outside the presence of or away from the court (indirect). Indirect criminal contempt proceedings have been held in a majority of jurisdictions to bar, on double jeopardy grounds, subsequent criminal prosecutions which are based on the same facts. State v. Thompson, 294 Or. 528, 659 P.2d 383 (1983), (contempt charge imposed on defendant for entering neighbor's land after having been enjoined from doing so in property dispute); People v. Holmes, 54 Ill.App.3d 843, 11 Ill.Dec. 498, 368 N.E.2d 1106 (1977), (defendant violated protective order entered pursuant to divorce complaint enjoining him from accosting or molesting his wife and although he was not punished in contempt proceeding, this did not preclude finding of double jeopardy in subsequent criminal prosecution for armed violence based upon same acts which were previously subject of contempt hearing); Maples v. State, 565 S.W.2d 202 (Tenn.1978), (summary criminal contempt finding against defendant as a result of an admittedly fraudulent divorce proceeding which defendant instituted in chancery court and in which he gave false testimony did not prevent subsequent criminal prosecution for perjury based on same conduct under principle of double jeopardy).

Other courts have permitted a subsequent criminal prosecution based upon the same facts as the criminal contempt when the criminal contempt was direct. U.S. v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963), (constitutional prohibition against double jeopardy did not prevent prosecution of defendant, who hurled witness' chair at assistant U.S. attorney and who was summarily held in contempt, for assault).

Appellant relies principally upon State v. Hope, 449 So.2d 633 (La.Ct.App.1984). There, the Court of Appeals of Louisiana did not address the question of whether the acts constituting contempt were direct or indirect. The defendant picked up his minor child from the residence of the mother (custodial parent) for weekend visitation. He left the state with the child and did not return the child to the mother until approximately five months later. The defendant was found guilty of criminal contempt on the citation by the mother and was sentenced to ten days in jail. After serving that sentence, defendant was charged with simple kidnapping. In holding that the subsequent kidnapping prosecution would place the defendant in double jeopardy, the Louisiana Court of Appeals first determined that the contempt proceeding was criminal in nature, utilizing the test enunciated in Shillitani, supra. In making this determination, the court noted that the defendant was not given a choice between complying with the court's orders or going to jail. The court stated that the primary purpose of the order was to punish the defendant for his non-compliance with previous orders of the court although the ten-day jail sentence may have had the effect of compelling him into complying with future court orders. The court next addressed the question of whether the trial on the kidnapping charge would expose the defendant to double jeopardy, utilizing the "Blockburger" test, i.e., whether each statute required proof of an additional element which the other did not. Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The "same evidence" test was also used by the Louisiana Court of Appeals. That test provides that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can only be placed in jeopardy for one. State v. Steele, 387 So.2d 1175 (La.1980). It was noted by the court that the "same evidence" test was somewhat broader in concept than the "Blockburger" test.

The Louisiana Court of Appeals applied the above tests holding that:

In the instant case, the evidence necessary to convict defendant of the first offense (contempt of court) would not have been sufficient to convict defendant of the second offense (simple kidnapping). The contempt charge only required proof that defendant willfully disobeyed a lawful order of the court. The simple kidnapping charge required proof that defendant took the child out of the state, from the custody and without the consent of the legal custodian, with the intent to defeat the jurisdiction of the court. However, the proof necessary to convict defendant of the simple kidnapping charge would have been sufficient to convict defendant of the contempt charge. We therefore conclude that the two offenses are the same under the 'same evidence' test and that trial of defendant on the simple kidnapping charge would have the effect of placing defendant twice in jeopardy for the same course of conduct.

We agree with appellee that State v. Hope, supra, is not controlling and is distinguishable. There, the child had been returned to the custodial parent before the defendant was found in contempt. The defendant was personally before the court after the missing child had been returned to the custodial parent. There was no need to coerce the defendant as the child had already been returned to the custodial parent. The defendant had served...