Moore v. Moore

• Decision Date: 28 February 1990
• Docket Number: No. 07-CA-59286,07-CA-59286
• Citation: 558 So.2d 834
• Parties: Aubrey E. MOORE v. Vickie W. MOORE.
• Court: Mississippi Supreme Court

Page 834

558 So.2d 834

Aubrey E. MOORE v. Vickie W. MOORE.

No. 07-CA-59286.

Supreme Court of Mississippi.

Feb. 28, 1990.

Joe Clay Hamilton, Meridian, Walter J. Eades, Vaughn & Dickinson, Gulfport, for appellant.

William B. Jacob, Daniel P. Self, Jr., Joseph A. Kieronski, Jr., Self & Jacob, Meridian, for appellee.

Before HAWKINS, P.J., and ANDERSON and BLASS, JJ.

ANDERSON, Justice, for the Court:

STATEMENT OF THE FACTS

Vickie W. Moore [Vickie] and Aubrey E. Moore [Aubrey] were married on November 24, 1972. On December 16, 1986, they were granted a divorce on the grounds of irreconcilable differences by judgment of the Chancery Court of Lauderdale County. Incorporated in this judgment was a Property Settlement and Custody Agreement, which outlined the duties and responsibilities of the parties. On May 21, 1987, Vickie filed a complaint against Aubrey for his failure to abide by the judgment of divorce.

A hearing on this contempt charge was to be held on June 30, 1987, but it was continued pursuant to the wishes of both parties. In the meantime, the parties entered a temporary agreement granting temporary relief pending a final hearing, which on July 21, 1987, the chancellor adopted and made a part of his order granting temporary relief. In his temporary order, the chancellor enjoined the parties from bothering or harassing each other.

On September 15, 1987, a hearing began on Vickie's complaint. At the conclusion of the day's testimony, the chancellor continued the case until December 7, 1987, in order to allow the couple to reach a settlement on the issues, especially the visitation schedule. He assured the parties that the case had not been tried to a conclusion, and he again enjoined them from harassing each other.

Because of more continuances, the hearing was rescheduled for March 11, 1988. On January 21, 1988, however, Vickie filed a second motion for contempt. Consequently, the chancellor heard evidence on both complaints at the March 11 hearing. At the conclusion of the hearing, the chancellor made detailed findings of fact and concluded that Aubrey had wilfully disregarded the court order incorporating the property settlement agreement; therefore, he was in contempt, and the chancellor sentenced him to ten days in the Lauderdale County Jail.

The chancellor did not end there. In addressing the contempt charges alleged in Aubrey timely filed his notice of appeal, prosecuted an appeal bond and was released from jail pending the outcome of the appeal.

Vickie's complaint filed in January, the chancellor found Aubrey in contempt and sentenced him to thirty days in jail. In his opinion the chancellor emphasized the fact that at the conclusion of the September hearing, he admonished Aubrey concerning his obligation to obey the court order. Even after this warning Aubrey continued to harass Vickie.

PROPOSITION I

THE FAILURE OF THE COURT TO INFORM THE APPELLANT OF HIS CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION AND OF THE NATURE OF THE CHARGES AGAINST HIM WAS REVERSIBLE ERROR.

During the hearings Vickie and Aubrey were represented by counsel. In proving the allegations in her complaint, Vickie called witnesses and testified in her own behalf. She also called Aubrey, an adverse witness, to testify. During his testimony, he made damaging admissions by testifying extensively about his behavior and related matters alleged in both complaints. When Aubrey took the stand, the chancellor did not inform him of his privilege against self-incrimination. More importantly Aubrey's counsel failed to make any objection to the defendant testifying.

Now Aubrey complains to this Court that it was reversible error for the chancellor not to inform him of his privilege.

DISCUSSION OF LAW

One of the most settled premises in our constitutional jurisprudence is that no individual may be compelled to testify against himself or to offer testimony which might render him liable to a criminal prosecution. Wright v. McAdory, 536 So.2d 897, 903 (Miss.1988). This is so whether he is a witness in a civil, criminal, or quasi-criminal proceeding. Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986); In re Knapp, 536 So.2d 1330 (Miss.1988); and Morgan v. United States Fidelity & Guaranty Co., 222 So.2d 820 (Miss.1969). Courts are particularly concerned with the privilege and its relationship with criminal prosecutions because there is a practical reality of juror prejudice and misunderstanding when an individual gets on the witness stand and invokes his privilege on a question by question basis. Knapp, 536 So.2d at 1334. Moreover, "[e]xperience and common sense have taught that the only way the privilege may in fact be secured in a criminal prosecution is that the accused have the right, if he wishes to exercise it, not to take the witness stand at all." Id.

It first must be understood that what we have in the case sub judice is not a criminal prosecution, but a hearing on both civil and criminal contempt. The nature of civil and criminal contempt is outlined below:

If the purpose of the proceedings is to coerce action or non action by a party the order of contempt is characterized as civil. This type contempt is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party....

On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court. [citations omitted].

Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987); see also, Varvaris v. State, 512 So.2d 886, 887 (Miss.1987). Accord Gadson v. Gadson, 434 So.2d 1345, 1349 (Miss.1983) (Robertson, Hawkins, and Prather, J., specially concurring) (those proceedings conducted to vindicate authority of the court are quasi-criminal). However, the same act which constitutes civil contempt may equal criminal contempt as well. Griffith, Mississippi Chancery Practice, Sec. 666 (2d ed. 1950).

Just as any other vital right, the privilege against self-incrimination can be His [the defendant's] voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between them all. Under this rule the accused by taking the witness stand in his own behalf waives the constitutional guaranty against compulsory self-incrimination not only as to matters about which he has given testimony in chief; but also concerning any matter pertinent to the issue on trial regardless of the extent of the direct examination, and cannot then refuse to testify to any fact which would be competent evidence in the case if proved by any other witness.

                waived so long as it is done so voluntarily and knowingly.  See, Sanders v. State, 440 So.2d 278, 283 (Miss.1983);  see also Phillips v. State, 421 So.2d 476, 479-83 (Miss.1982) (the right to confront and cross-examine prosecution's witnesses);  Thomas v. State, 472 So.2d 425, 426 (Miss.1985) (the right to a jury trial).  Aubrey waived his privilege of self-incrimination when he took the witness stand and testified on the merits of the case.  Hentz v. State, 496 So.2d 668, 673 (Miss.1986);  Jones v. State, 381 So.2d 983, 993 (Miss.1980);  see also, Autry v. State, 230 Miss. 421, 92 So.2d 856 (1957).  Moreover, when he opened his mouth to discuss the merits of the case, Aubrey also opened the door to cross-examination and impeachment to the same extent as any other witness in the same situation.  Hentz, supra, at 673.   As the Autry Court explained
                

The waiver by the accused is not partial. Having once cast aside the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassing.

92 So.2d at 861-62.

Aubrey insists that his case is different because he neither offered himself as a witness nor voluntarily took the stand in his own behalf. We, on the other hand, believe that the decision in Autry applies to Aubrey just as it applies to a criminal defendant. Since Aubrey's case is a quasi-criminal proceeding, however, there is a difference. Therefore, we must look to an analogous case for some direction.

Mississippi State Bar v. Attorney L, another quasi-criminal proceeding, involved the taking of a deposition of an attorney who had been formally cited by the Mississippi State Bar [MSB]. 511 So.2d 119 at 120, 121 (Miss.1987). In taking the deposition, MSB's attorney asked Attorney L "certain background questions, including [his] name, address and occupation, and then proceeded for almost 100 transcribed pages to ask Attorney L a wide-ranging variety of questions almost all of which were directly or indirectly related to the allegations of the Formal Complaint." Id. Instead of answering any of these questions, Attorney L asserted his constitutional privilege against self-incrimination. MSB moved for entry of an order compelling Attorney L to answer all questions and the Presiding Judge so ordered. Id. at 121. This Court held that those questions that were directly or indirectly related to any aspect of the charges in the Formal Complaint were subject to Attorney L's Fifth Amendment privilege because he had asserted it. But, he had to answer the innocuous questions. Id. at 125.

The case sub judice is not much different. Unlike the defendant's rights in a purely criminal proceeding, Aubrey had no right to forbid Vickie from questioning him altogether. Once Vickie asked Aubrey anything outside of the innocuous arena, the introductory questions, he should have invoked his privilege. ¹ He could have done so on a question by question basis. See, Knapp, 536 So.2d at 1334. Furthermore, Aubrey knew that these proceedings were in response to a motion for contempt filed by his wife. He also knew that any finding of contempt would have subjected...