Com. v. Burge
| Decision Date | 29 August 1996 |
| Docket Number | 92-SC-873-TG and 92-SC-896-TG,Nos. 92-SC-287-D,s. 92-SC-287-D |
| Citation | 947 S.W.2d 805 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Roger Keith BURGE, Appellee, and Gary E. HERRIFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee, and COMMONWEALTH of Kentucky, Appellant, v. Kenny EFFINGER, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
We have consolidated these appeals because they present the common issue of whether a finding of criminal contempt for violation of a domestic violence order [hereinafter DVO], issued pursuant to KRS 403.750, or for violation of a restraining order issued in a dissolution of marriage case, can bar a criminal prosecution on double jeopardy grounds. In each case, the individual involved was sentenced to a term of imprisonment on the contempt citation.
Roger Burge was convicted of burglary, rape, and sodomy, all in the first degree. At the time of the event that led to these charges, Burge was subject to a restraining order issued by the Jefferson Circuit Court in a pending dissolution of marriage action. The restraining order prohibited Burge from going about or entering the house occupied by his wife, and from threatening, assaulting, or otherwise interfering with her. By entering the marital residence Burge violated that restraining order. He was found in contempt and sentenced to ninety (90) days in jail. Burge was then indicted on charges of burglary, rape, and sodomy. The burglary charge was founded on Burge's entry into the marital home and assault on his wife. Trial counsel moved for dismissal of the burglary charge on double jeopardy grounds, contending that Burge's conviction for contempt precluded his subsequent prosecution. The motion was denied, but the Court of Appeals reversed, relying upon Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). We granted discretionary review 1.
Gary Herriford's wife obtained a DVO, which provided that he was restrained from committing further acts of violence and abuse and from disposing of, or damaging, any of their property. Less than one (1) month later, Herriford was found in contempt of court for having violated the DVO by entering his wife's apartment, then striking her with a bottle and causing injury. He was sentenced to six (6) months in the Home Incarceration Program, and granted work release.
Herriford was then indicted by the Jefferson County Grand Jury, which charged him with assault in the second degree by intentionally
causing physical injury to his wife by means of a deadly weapon or dangerous instrument. It is clear that the criminal charge arose from the same assault that resulted in the contempt of court sentence, as the bill of particulars indicated that the dangerous instrument was a bottle. Herriford moved for dismissal on double jeopardy grounds, but his motion was denied. He then entered a conditional guilty plea to a reduced charge of assault under extreme emotional disturbance, and a sentence of three (3) years was imposed. Herriford's appeal was transferred to this Court.
Kenny Effinger was charged with first-degree assault and retaliating against a witness for entering Tonya Madry's apartment and striking her with a metal pipe on August 3, 1991. Prior to this act, on July 15, 1991, a DVO had been issued, which restrained Effinger from committing further acts of violence and abuse, and ordered that he was to have no contact with Madry. On August 12, 1991, Effinger was held in contempt of court for violation of the DVO and sentenced to six (6) months in jail. He was then indicted by the Jefferson County Grand Jury for, among other offenses, the crimes at issue. A review of the affidavit filed by Madry in support of the contempt hearing, and the hearing itself, reveals that the criminal charges and the contempt proceeding were grounded on the same incident. Effinger's motion to dismiss on double jeopardy grounds was granted by the circuit court. The Commonwealth appealed, and the appeal was transferred to this Court.
CONTEMPT: Criminal v. Civil
Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court. "Contempts are either civil or criminal." Gordon v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911). Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant. Examples are the willful failure to pay child support as ordered, or to testify as ordered. While one may be sentenced to jail for civil contempt, it is said that the contemptuous one carries the keys to the jail in his pocket, because he is entitled to immediate release upon his obedience to the court's order. Campbell v. Schroering, Ky.App., 763 S.W.2d 145, 148 (1988).
Criminal contempt is conduct "which amounts to an obstruction of justice, and which tends to bring the court into disrepute." Gordon, supra, 141 Ky. at 463, 133 S.W. at 208. " 'It 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, 627 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911)). If the court's purpose is to punish, the sanction is criminal contempt.
Criminal contempt can be either direct or indirect. A direct contempt is committed in the presence of the court and is an affront to the dignity of the court. It may be punished summarily by the court, and requires no fact-finding function, as all the elements of the offense are matters within the personal knowledge of the court. In re Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Indirect criminal contempt is committed outside the presence of the court and requires a hearing and the presentation of evidence to establish a violation of the court's order. It may be punished only in proceedings that satisfy due process. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925).
In each of the cases at bar, the defendant was punished for behavior which occurred outside the presence of the court. Notice of the allegations was given, witnesses were called in open court with the opportunity to confront same, and the defendant had the right to present proof. The trial court made findings of fact, and concluded that the defendant's behavior was indeed contemptuous. Punishment was then imposed. It is clear that the defendants herein were charged with, and found in, criminal contempt as that term is classically understood.
DOUBLE JEOPARDY
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides in pertinent part that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Kentucky's Constitution includes a virtually identical provision in § 13. In Cooley v. Commonwealth, Ky., 821 S.W.2d 90, 93 (1991), we acknowledged that, by and large, we have followed the decisions of the Supreme Court of the United States and have interpreted § 13 of the Kentucky Constitution as affording protections which parallel those guaranteed by the Fifth Amendment. Therefore, the United States Supreme Court's decisions are germane to an analysis of double jeopardy under both the Federal and this Commonwealth's Constitution.
Double jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute "requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). KRS 505.020(1)(a) and (2)(a) codify this rule. The Blockburger rule was expanded by the United States Supreme Court in Grady v. Corbin, supra, wherein that Court held that double jeopardy occurs when the "same conduct" constituting one offense is used to prove an essential element of another offense. Grady was a vehicular homicide case in which the defendant had entered a guilty plea to the offense of driving while under the influence of alcohol (DUI), then was prosecuted for reckless manslaughter in a separate proceeding. Under the Blockburger "same elements" test, the defendant could have been convicted of both offenses, because the DUI offense contained an element (intoxication) which was not a statutory element of reckless manslaughter; and reckless manslaughter contained an element (death of the victim), which was not a statutory element of DUI. However, in Grady, it was held that double jeopardy precluded conviction of both offenses, because the prosecution was required to prove the conduct constituting DUI in order to prove the element of recklessness necessary to convict the defendant of reckless manslaughter. This "same conduct" test redefined the concept of a lesser included offense for double jeopardy purposes and thereby expanded the Blockburger "same elements" test.
Less than eight months after Grady v. Corbin was decided, we rendered our opinions in Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991) and Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990).
The facts in Walden, supra, were almost identical to those in Grady, except that the DUI and vehicular homicide (wanton murder) charges...
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