Gibb v. Hansen

• Decision Date: 19 December 1979
• Docket Number: No. 63236,63236
• Citation: 286 N.W.2d 180
• Parties: Allan Banks GIBB, III, Plaintiff, v. David R. HANSEN, as Judge of the District Court of Iowa in and for Story County, Defendant.
• Court: Iowa Supreme Court

Page 180

286 N.W.2d 180

Allan Banks GIBB, III, Plaintiff, v. David R. HANSEN, as Judge of the District Court of Iowa in and for Story County, Defendant.

No. 63236.

Supreme Court of Iowa.

Dec. 19, 1979.

Lad Grove, Ames, for plaintiff.

Thomas J. Miller, Atty. Gen., and Jeanine Freeman, Asst. Atty. Gen., for defendant.

Considered by LeGRAND, P. J., and REES, HARRIS, ALLBEE, and McGIVERIN, JJ.

McGIVERIN, Justice.

Plaintiff Allan Banks Gibb, III, challenges by way of petition for writ of certiorari the defendant district court's judgment of contempt entered against him. We believe the court acted legally and annul the writ.

Gibb presents the following issues for our review:

1. Whether a person accused of contempt committed before the court is provided adequate procedural safeguards under chapter 665, The Code 1977, sufficient to comply with Iowa Constitution article I, sections 9, 10, and 11;

2. Whether the court acted illegally in punishing Gibb for contempt without advising him of and providing him pursuant to section 665.7 with an opportunity to make written explanation of his conduct under oath; and

3. Whether a criminal case defendant has a right under Iowa Constitution article I, section 1, to refuse, after testifying on his own behalf, to answer a question within the proper scope of cross-examination which he claims would jeopardize the safety of himself and his family.

The contempt matter arose in this way. Gibb was on trial for three counts of delivery of cocaine for profit in violation of section 204.401(1)(a), The Code 1979. He took the witness stand before the jury in his own defense. On direct examination he testified that although he delivered cocaine, on the three different occasions charged, to a John Furman, he made no profit on any of these deliveries. He said he gave the $700 he received from the first drug transaction and $1185 from the second "to the people" he "received the cocaine from." In the third transaction he delivered four ounces of cocaine and was to receive $9000 in exchange. For reasons not stated in the record, he did not receive that payment. However, he said he was to give these same people, who supplied him with the drug, the money he was to receive from the third delivery.

On cross-examination the prosecutor asked Gibb in several similar questions who gave him the cocaine that he delivered. Defense counsel objected on the grounds the questions were irrelevant, immaterial and beyond the scope of direct examination. The court properly overruled the objections. State v. Sparks, 238 N.W.2d 777 (Iowa 1976).

However, Gibb testified he could not answer the questions because he was afraid of retaliation against himself and his family.

The prosecution asked the court to direct Gibb to answer the question as to the identity of the people who gave him the cocaine at issue in that case. The court did so, but Gibb still refused to answer the question.

The trial was temporarily interrupted and, in the absence of the jury, the court commenced contempt proceedings against Gibb, advising him of the consequences of refusing to answer the question under the contempt law, chapter 665, The Code. The court explained that an illegal resistance to any order made or issued by the court constituted contempt under section 665.2(3). The penalties for contempt were also explained to Gibb. See § 665.4.

At the suggestion of the court, Gibb consulted with his attorney, who reviewed the code provisions pertaining to contempt proceedings. Gibb, thereafter, again refused to answer the question.

The court then asked Gibb's attorney if he desired to be heard on the issue of whether or not Gibb's conduct constituted contempt. After further study of the matter, the attorney advised the court that Gibb was in a difficult position in trying to protect the safety of himself and his parents. Relative to Gibb's refusal to answer, his attorney said, "It is a technical violation, yes, but one that has a very solid and very sound reason for it."

After listening to statements of both counsel, the court asked Gibb, "Mr. Gibb, do you desire to make any statement to this court concerning your action in refusing other than what you already made?" Gibb answered:

The only thing, Your Honor, is that it does put me in an very tough situation of whether to answer or not. So, I simply cannot. There are it's not like there are one or two people. It's like a pyramid effect. People I don't even know. I simply can't name any of them for the reasons for the ones I don't know and the jeopardy of my family and myself for the ones that I do.

The court then found Gibb in contempt under section 665.2(3) for illegal resistance to the court's order by refusing to answer the pending question.

The court next asked Gibb if he had anything else to say before punishment for the contempt was determined. Gibb made no more record on the matter. Next, the court heard additionally from counsel for each side. Gibb was then sentenced to six months in jail under section 665.4(2). The court made these further comments:

Mr. Reporter, this Court would like to dictate into the record a couple of comments about this contempt proceeding. One is that this Court perceives a key element of this defendant's defense is whether or not he delivered the controlled substance alleged for the purpose of making a profit. His direct testimony was he took the money he received from Mr. Furman directly to his supplier. The clear inference to be drawn from that testimony was that it was a sale or exchange for the same amount of money. He gave the direct testimony that he did not profit on the transaction as well. But his refusal to identify the suppliers to him, so they could be summoned in here by subpoena and examined concerning the sale transaction between them and him, he has effectively foreclosed the State from investigating the truth or falsity of his testimony concerning whether or not he did it for the purpose of making a profit because that goes to a very essential element of this case. This Court viewed his refusal to answer the question as a particularly burdensome one and it raised substantially in this Court's mind the importance attached to the refusal in the Court's mind sufficient to justify in this Court's mind the imposition of the maximum jail sentence.

In addition, the court prepared written findings of fact, conclusions of law and contempt order in compliance with section 665.9. Pursuant to section 665.10, the order stated it shall stand as the warrant of commitment and that the contempt punished occurred in the personal presence of the court and was not proved by other witnesses.

In its written conclusions of law, the court stated:

The defendant's refusal to obey the order goes to the very heart of the judicial process and it denies to the State a right to cross-examine the defendant concerning his direct testimony on a crucial element in this case, i. e. the defendant's purpose of profit, if any.

After resumption and completion of the jury trial, Gibb was convicted on all three counts of delivery for profit. Ten-year prison terms and a fine were imposed on each conviction.

The contempt sentence was ordered to be served concurrently with the drug sentences. Gibb does not contest the severity of the contempt sentence.

During the contempt hearing, Gibb, although represented by counsel, made no objection to the procedures used and did not ask to be able to file a written explanation for his conduct.

The question asked and Gibb's reason for not answering were clear. The issue came down to whether or not Gibb could legally refuse to answer the posed question. If his refusal was proper, he could not validly be found in contempt of the court's order to answer. Otherwise, he was in contempt.

We granted Gibb's petition for writ of certiorari to review the court's contempt order under section 665.11. Certiorari is a procedure to test whether a lower board, tribunal or court exceeded its proper jurisdiction or otherwise acted illegally. Iowa R.Civ.P. 306. It is an action at law and is not triable here de novo. "Generally findings of fact are not reviewable on certiorari, but when a judgment of contempt is challenged, the rule is that we examine the evidence, not de novo, but to assure ourselves that proof of contempt is clear and satisfactory. . . . This is an exception to our ordinary rule on certiorari." Lane v. Oxberger, 224 N.W.2d 245, 247 (Iowa 1974).

Certain other principles must be considered in our review of the issues presented. We have said the contempt power "is indispensable to the protection of due and orderly administration of justice and in maintaining the authority and dignity of the court. 'But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.' " Knox v. Municipal Court, 185 N.W.2d 705, 707 (Iowa 1971). Plaintiff has the burden to show defendant has exceeded his proper jurisdiction or otherwise acted illegally. Newby v. District Court, 259 Iowa 1330, 1336, 147 N.W.2d 886, 890 (1967); Iowa R.Civ.P. 306.

Before considering the main issue presented to the trial court, we briefly dispose of the first and second issues raised here by Gibb.

I. Constitutional attacks on chapter 665, The Code. Gibb claims, as one accused of contempt committed before the court where the punishment to be imposed exceeds a fine of $100 or imprisonment for thirty days, he had the following rights guaranteed under Iowa Constitution article I, sections 9, 10, and 11: the right to a speedy and public trial by an impartial jury; the right to be informed of the accusation against him and to have a copy of the same when demanded; the right to be confronted with the witnesses against him; the right to have compulsory process for his witnesses; and the right to have assistance of counsel. He says that to the extent chapter 665, The Code 1979, did not afford him these rights, it is void and...