Mahoney v. Com.

• Decision Date: 17 May 1993
• Citation: 612 N.E.2d 1175,415 Mass. 278
• Parties: Arthur E. MAHONEY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1175

612 N.E.2d 1175

415 Mass. 278

Arthur E. MAHONEY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 1, 1993.

Decided May 17, 1993.

Richard K. Donahue, Jr., Lowell, for plaintiff.

Michael Adam Chinman, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

A single justice of this court has reserved and reported this action under G.L. c. 211, § 3 (1990 ed.), which seeks dismissal of certain criminal charges on the ground of double jeopardy. At issue is whether the Commonwealth may prosecute the plaintiff (hereinafter, defendant) on charges which he contends are based on the same conduct that resulted in his being adjudged in contempt for violating a protective order issued under G.L. c. 209A, § 7 (1990 ed.) (Abuse Prevention Act). We conclude that the judgment of contempt does not bar the Commonwealth from prosecuting the defendant on the pending charges.

In December, 1990, as a result of proceedings initiated by the defendant's wife, a judge in the Ayer Division of the District Court Department issued a series of protective orders under G.L. c. 209A, § 7, ordering inter alia, the defendant to refrain from abusing his wife and to remain away from her household. The orders were effective through March 24, 1992.

In February, 1991, as a result of proceedings initiated by the defendant's girl friend, a judge in the same court issued orders that the defendant refrain from abusing his girl friend and immediately leave and remain away from her household. These orders were effective until February 25, 1992. ¹

On December 11 and 12, 1991, two criminal complaints were issued charging the defendant with assault and battery on his wife, and with violating a protective order and making criminal threats against his girl friend. ² At the arraignment in the Ayer District Court, a judge held a contempt hearing to decide whether the defendant's conduct, as alleged in the criminal complaints, violated the protective orders. ³ The defendant's wife, his girl friend, and a man who lived with the defendant testified. The judge found the defendant in contempt. ⁴

At the sentencing hearing the following day, ⁵ defense counsel asked, "Your honor, we are in agreement, then, that what took place yesterday was a civil contempt proceeding?" The judge responded, "Oh, I don't think I have much trouble with that.... What occurred yesterday was a contempt proceeding under the specific statutory grant of [G.L. 209A] that authorizes a court to consider whether or not a defendant under a restraining order is in contempt of that order." Defense counsel then restated his question, "And therefore it's a civil proceeding. Correct?" To which the judge responded, "I'm not going to characterize it. It may well be. It certainly didn't--it's not a criminal proceeding, but it's one that's being conducted specifically under a statutory grant." ⁶

After further discussion with both defense counsel and the assistant district attorney, the judge concluded:

"And having heard the evidence and having made the findings that I have made, I do find this defendant in civil contempt. And in accordance with that, and as the only means I have of assuring the enforcement of this Court's orders, I'm committing him to the common jail for a period of thirty days. He may--he may post the sum of $5,000 cash ... with the clerk of this court. And the condition of the posting of that cash will be, that he will have absolutely no contact whatsoever with either woman in this case, directly or indirectly, at the risk of the forfeiting of that $5,000 cash and a further review of whether there is a new contempt. In other words, he's being committed for thirty days. He can purge himself of that contempt by posting the $5,000 cash with the clerk's office on the conditions that I have sought to identify here this morning."

When defense counsel objected to the "amount of the bail of $5,000 cash," the judge responded:

"Oh, it's not bail.... I'm committing him in and finding him in civil contempt and I'm committing him for a term of thirty days to the common jail. I'm going to permit him to purge himself of that contempt by posting in the clerk's office $5,000 cash money ... the strict condition of which is that he's to have no contact directly or indirectly with the women involved in this case. If he posts the $5,000 cash and he's prepared to come before the Court and make the representation that he understands the conditions and will abide by them, I will purge him of the contempt. Short of that, he stands committed."

The defendant was incarcerated from December 18, 1991, to January 16, 1992. On February 11, 1992, after electing a first instance jury trial, resulting in the transfer of the criminal complaints to the Lowell District Court jury session, the defendant moved to dismiss the complaints on the ground of double jeopardy. A judge in that court denied the motions. ⁷ Thereafter, a petition was filed with a single justice of this court under G.L. c. 211, § 3, seeking a stay of the defendant's trial and dismissal of the charges. One single justice granted a stay on April 27, 1992; another single justice reserved and reported the matter to the full court on October 27, 1992.

1. The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. ⁸ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Commonwealth v. Woods, 414 Mass. 343, 346, 607 N.E.2d 1024 (1993). It is the third of these abuses that we are concerned with here. If the judge below was exercising his authority in a nonpunitive, noncriminal manner, there was no "punishment" in the constitutional sense that would involve the double jeopardy clause. Hicks v. Feiock, 485 U.S. 624, 640-641, 108 S.Ct. 1423, 1434-1435, 99 L.Ed.2d 721 (1988).

In order to determine whether the judge below imposed punishment, we focus on the sanction imposed on the defendant. United States v. Halper, 490 U.S. 435, 447, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989). Hicks v. Feiock, supra, 485 U.S. at 636, 108 S.Ct. at 1431-1432.

" 'If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.' Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 498, 55 L.Ed. 797] (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if 'the defendant stands committed unless and until he performs the affirmative act required by the court's order,' and is punitive if 'the sentence is limited to imprisonment for a definite period.' Id., at 442 . If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order." Hicks v. Feiock, supra at 631-632, 108 S.Ct. at 1429. ⁹

When we apply these rules to the instant case, it is clear that the sanction imposed on the defendant was civil in nature. The sanction was remedial and specifically designed to compel compliance with the protective orders that the defendant had previously disobeyed. In addition, the sentence imposed was not for a definite period. Rather, it was structured so that the defendant could purge himself of the sentence at any time if he posted the required cash amount and represented to the court that he would have no further contact with the women. Such a sanction is a proper civil contempt remedy. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) (sentence must be viewed as civil in nature if court conditions release on contemnor's willingness to comply with order or imposes determinate sentence which includes purge clause); Gompers v. Buck's Stove & Range Co., supra 221 U.S. at 442, 31 S.Ct. at 498 (conditional nature of punishment renders relief civil since contemnor "can end the sentence and discharge himself at any moment by doing what he had previously refused to do").

Similarly, the cash-posting requirement was also conditioned on the defendant's compliance with the protective court order. It was also a proper civil contempt sanction. See Hicks v. Feiock, supra 485 U.S. at 631-632, 108 S.Ct. at 1429-1430. Labor Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465, 475, 416 N.E.2d 1340 (1981) (conditional, coercive orders considered civil contempt). Contrary to the defendant's argument, the cash requirement was not a "fine"; it was merely designed to ensure that the defendant complied with the terms of the original restraining order. Even if it was intended that the sum revert to the Commonwealth if the defendant again violated the court order, that would not make the sanction criminal where the primary objective of such a prospective "fine" is to coerce compliance with a court order. Labor Relations Comm'n v. Fall River Educators' Ass'n, supra at 475-476, 416 N.E.2d 1340.

The defendant's reliance on United States v. Halper, supra, is misplaced. The question the Supreme Court addressed in Halper, supra 490 U.S. at 443, 109 S.Ct. at 1899, was "whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes 'punishment' for the purposes of double jeopardy analysis." The Court held that "under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil...