Campbell v. Schroering, 88-CA-2250-OA

• Decision Date: 22 December 1988
• Docket Number: No. 88-CA-2250-OA,88-CA-2250-OA
• Citation: 763 S.W.2d 145
• Parties: Delina CAMPBELL, Petitioner, v. Edwin A. SCHROERING, Jr., Judge, Jefferson Circuit Court, Respondent.
• Court: Kentucky Court of Appeals

Page 145

763 S.W.2d 145

Delina CAMPBELL, Petitioner, v. Edwin A. SCHROERING, Jr., Judge, Jefferson Circuit Court Respondent.

No. 88-CA-2250-OA.

Court of Appeals of Kentucky.

Dec. 22, 1988.

Frank William Heft, Jr., Michael C. Lemke, Louisville, for petitioner.

Edwin A. Schroering, Louisville, pro se.

Before McDONALD, HOWARD and WILHOIT, JJ.

McDONALD, Judge.

This original action involves the propriety of an order entered by the respondent, Judge Edwin A. Schroering, Jr., Jefferson Circuit Court, directing that petitioner Delina Campbell be incarcerated, purportedly upon a finding that she was in contempt of court for failing to appear to testify.

The facts giving rise to this action are somewhat muddled. The petitioner had been subpoenaed as a witness for the prosecution in the case of Commonwealth v. Robert Campbell, Indictment No. 88-CR-0155; the defendant is the petitioner's son. We are led to believe that petitioner's testimony was crucial to the Commonwealth in proving its case against her son, the defendant. ¹ On September 29, 1988, when the Commonwealth attempted to call the petitioner to the stand, she could not be found. The circuit court issued an order directing any peace officer to arrest the petitioner and bring her before the court. The case was continued until October 6, 1988. At that time, the commonwealth's attorney informed the court that he had spoken with the petitioner and determined that her earlier failure to appear had been the result of a misunderstanding rather than a willful refusal to testify. He had therefore told the police not to execute the arrest order as she had agreed to appear that day at 1:00 p.m. By 2:30 p.m., the petitioner had not yet appeared and the defendant moved for a directed verdict of acquittal. The circuit court granted the defendant's motion and brought the jury back in to discharge it. At this point, the commonwealth's attorney was informed that the petitioner had appeared. The circuit court once again sent the jury out of the courtroom; it then set aside its ruling on the directed verdict and told the Commonwealth to call the petitioner as a witness.

Meanwhile, apparently a confrontation occurred outside the courtroom between the petitioner and her son in the presence of the waiting jurors. The exact nature of the confrontation was disputed; regardless, the defendant's motion for a mistrial was granted and the jury was discharged.

A new trial was scheduled for November 29, 1988. ² The commonwealth's attorney offered to have the petitioner swear that she would reappear, to which the circuit court responded, "She's not going to swear to anything. She's going to wait in jail" until the trial. ³ Only then was the petitioner sworn in as a witness and questioned by the respondent regarding the reasons for her failure to timely appear. Despite the fact that one of the defense attorneys present suggested it, petitioner was not asked whether she wanted counsel. Toward the end of the inquiry, the respondent asked the petitioner about certain bruises on her face, to which she replied that she had run into a door. The respondent then ordered that the petitioner be taken into "protective custody" and held in jail until the case in question could be tried. However, the circuit court's written order directing that the petitioner be jailed states, for the first time, that she was in contempt of court. Bond was set at $5,000 full cash, which petitioner was unable to satisfy.

On October 17, 1988, this Court ordered, pursuant to her motion for immediate relief, that petitioner be released pending consideration of the merits of this action.

The petitioner maintains that respondent's actions in ordering her jailed were improper for a number of reasons. First, she argues that the trial in question cannot take place because a directed verdict had already been granted. She also claims that she is herself a suspect of the crime involved and, as such, cannot be compelled to testify in violation of her Fifth Amendment right against self-incrimination. We are unpersuaded by these arguments. This Court agrees with the respondent's conclusion that he was empowered to set aside his order because the jury had not yet been discharged. Furthermore, the petitioner made no attempt to invoke the protection of the Fifth Amendment before the circuit court, and we do not believe that it can now shield her from a finding of contempt.

The petitioner's other arguments have more merit. We must note, first of all, that we agree with the respondent's position that "it is essential that Courts be able to compel the appearance and testimony of witnesses." We also agree that courts must be vested with a great deal of discretion to achieve that end. See CR 45.06, applicable herein under RCr 13.04. However, this discretion is not limitless and it does not extend to summarily jailing witnesses for future trials. ⁴ There are established mechanisms which the trial court may use to coerce a recalcitrant witness into appearing or testifying. The court has a great deal of flexibility and power in determining how to use these, but in doing so it may not circumvent certain rules.

One of these methods, of course, is the contempt sanction. The respondent's position is that the petitioner's incarceration fell within his discretion to hold a witness in civil contempt. We are of the opinion that the respondent confuses civil with criminal contempt and has attempted to mesh these in a way which accomplishes the purposes of neither. Respondent correctly points out that " '[i]t is not the fact of punishment but rather its character and purpose that often serve to distinguish' civil from criminal contempt." Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Thus, if respondent's purpose was primarily to punish the petitioner for her tardiness, the sanction would more properly be characterized as criminal contempt--unconditional incarceration for punitive purposes. Before incarcerating someone for criminal contempt, some sort of due process is required, including representation by counsel and, if the charge is serious enough, a jury trial. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). See also Payne v. Commonwealth, Ky.App., 724 S.W.2d 230 (1987), for a good analysis of the problem.

The purpose of civil contempt, on the other hand, is "to coerce, rather than punish." Shillitani, 384 U.S. at 370, 86 S.Ct at 1535. "While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if the court conditions release upon the contemnor's willingness to testify." Id. Ultimately, then, the defining characteristic of civil contempt is the fact that contemnors "carry 'the keys of their prison in their own pockets,' " id. at 368, 86 S.Ct. at 1534. ⁵ Herein lies the flaw, as we see it, in respondent's order. The petitioner was ordered incarcerated on October 6, 1988, there to remain until the retrial on November 29, 1988, now by order of court on February 28, 1989. Between these two dates she had absolutely no opportunity to purge herself of contempt, if in reality contempt was the true basis of the incarceration. In essence, this was an unconditional jail sentence of 55 days, and now even more because of the continuance. "Such imprisonment could be deemed punitive in character and in the nature of a proceeding for criminal contempt, quite possibly running afoul of the requirements of Bloom v. Illinois [supra ]." Hardin v. Summitt, Ky., 627 S.W.2d 580, 582 (1982), and Payne v. Commonwealth, supra.

The respondent points out that this Court, in Woods v. Commonwealth, Ky.App., 712 S.W.2d 363, 365 (1986), declared the Kentucky contempt statute ⁶ unconstitutional "in that it binds the hands of the trial court whether its purpose is to punish a witness for refusing to testify or to coerce that witness to...