People v. Lucero

• Decision Date: 18 September 1978
• Docket Number: No. 27576,27576
• Citation: 196 Colo. 276,584 P.2d 1208
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arnaldo LUCERO, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1208

584 P.2d 1208

196 Colo. 276

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arnaldo LUCERO, Defendant-Appellant.

No. 27576.

Supreme Court of Colorado, En Banc.

Sept. 18, 1978.

Robert L. Russel, Dist. Atty., David H. Zook, Deputy Dist. Atty., Colorado Springs, John R. Rodman, Sp. Deputy Dist. Atty., Denver, for plaintiff-appellee.

Vincent Franco, Denver, for defendant-appellant.

HODGES, Justice.

Appellant Lucero appeals a judgment ordering his summary incarceration for contempt of court. Despite receiving a grant of transactional immunity, Lucero refused on Fifth Amendment grounds to obey the district court's orders to testify before a grand jury. The court thereupon ordered him incarcerated for contempt of court. We affirm the district court's judgment.

In 1977, a statutory grand jury was convened in El Paso County for the January term to investigate the unlawful traffic in narcotics. The grand jury summoned Lucero as a witness on January 18, 1977. He gave his name and address, but refused to answer all further questions on the ground his answers might incriminate him.

Lucero and his attorney were then brought before District Judge Calvert in chambers. The grand jury submitted to the court an application to grant the witness immunity and to compel him to testify, and the court signed the application. Judge Calvert explained to Lucero the terms of the grant of immunity and indicated that any subsequent refusal to testify would cause him to be in contempt of court and would subject him to incarceration until he chose to answer the questions. Lucero stated that he understood, and before returning to the grand jury, apparently consulted with his attorney.

On his return to the grand jury, Lucero refused to give his name or to answer any other question. Lucero and his counsel were again summoned to the judge's chambers, where the court reporter read to the judge these questions and answers. After offering to provide Lucero with protection if his unwillingness to testify arose from fear for his safety, the court ordered him jailed for contempt of the court until he agreed to testify or until the grand jury was dismissed. The judge rejected the sole objection of Lucero's attorney that the contempt had not occurred "in the presence of the court" and, therefore, that contempt could not be found without issuing a citation and affording a hearing.

One week later, on January 25, 1977, Lucero was brought before the same grand jury. District Judge Baker was also present in the courtroom. The district attorney questioned Lucero under the grant of immunity. Upon his refusal to answer any questions, Judge Baker advised him of the meaning of the grant of immunity and of his duty to testify. Thereupon, the court asked Lucero:

"(I)s it your continuing position to refuse to answer these questions after you have been made fully aware that you are compelled to testify, being given a complete grant of immunity from criminal prosecution, thereby removing any basis for your claim of privilege? Is that your position, Mr. Lucero?"

Lucero replied:

"I refuse to answer that question on the grounds that it may incriminate me and I would like to have my lawyer present."

Judge Baker then excused the grand jury and summoned Lucero's attorney. The record of the proceedings which had just occurred before the grand jury was read for Lucero's attorney. His attorney argued against the validity of the grant of immunity and suggested that this grant of immunity would not protect Lucero from criminal prosecution in other states. Judge Baker rejected this argument and proceeded to find Lucero in "direct contempt of court." He then ordered Lucero incarcerated until he agreed to testify or until the grand jury term expired.

On February 1 and on February 8, 1977, Lucero was brought before the grand jury and presiding District Judges Hinton and Baker. On each occasion he refused to answer even the most innocuous questions. Each time, before the judge extended the order of confinement, Lucero requested that his attorney be present. These requests were refused.

On February 28, 1977, Judge Baker set bail at $7500 pending appeal. Lucero posted the appeal bond and was released.

On this appeal, Lucero challenges the procedures followed by the court prior to his incarceration for contempt. Lucero contends that the court erred in imposing punishment for contempt without affording Lucero advance written notice, right to counsel, and an opportunity to present evidence. We hold that the summary contempt proceeding under the facts here was appropriate. We also hold that before a judge orders incarceration, the recalcitrant witness is entitled, on his request, to have an attorney present with him.

Section 13-90-118, C.R.S.1973 provides a means of obtaining testimony from a witness called before a court or grand jury. Where the witness' testimony is "necessary to the public interest," the court may grant the witness immunity and order him to testify. The terms of the grant immunize the witness from prosecution or subjection "to Any penalty or forfeiture on account of his compulsory testimony except prosecution for perjury or contempt. . . ." (Emphasis added.) This statute explicitly mandates that the testimony so compelled may not ". . . be used as evidence in any criminal proceeding against him in any court, . . .". In return for this grant of immunity, "the witness shall not be excused from testifying . . . on the grounds that the testimony . . . required of him may tend to incriminate him or subject him to a penalty or forfeiture." The immunity granted under this statute is clearly and necessarily transactional. Wheeler v. District Court, 184 Colo. 193, 519 P.2d 327 (1974).

The court's authority to punish for contempt of court a witness who disobeys an order to testify issued under section 13-90-118, C.R.S.1973, cannot be seriously questioned. The civil contempt provisions of the Colorado Rules of Civil Procedure, particularly Rule 107(a), expressly provide that "disobedience . . . of any person to . . . any lawful . . . command of said court . . . shall constitute contempt."

Opinions of the Colorado and United States Supreme Courts confirm this power. The recent United States Supreme Court opinion in United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975) involved the disregard of an order to testify in a court proceeding, but the court's language is equally applicable to a refusal to answer questions before a grand jury investigation:

"The face-to-face refusal to comply with the court's order itself constituted an affront to the court . . . . (C)ontempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify."

Accord, Smaldone v. People, 158 Colo. 7, 405 P.2d 208 (1965).

But the determination that a refusal to testify is properly punishable as contempt does not end the inquiry. The controversy in the present case revolves around the court procedure followed in imposing the contempt and incarceration. Judge Calvert and subsequently Judges Hinton and Baker invoked the procedure of C.R.C.P. 107(b), which permits a judge to punish civil contempt in summary fashion. This rule provides:

"When a contempt is committed In the presence of the court it may be punished summarily. In such case an order shall be made reciting the facts constituting the contempt, adjudging the contemner guilty of contempt, and prescribing the punishment therefor. . . ." (Emphasis added.)

Lucero contends, however, that his contemptuous conduct occurred during the grant jury proceeding and that any disruptive effect caused by the refusal to testify was limited solely to that proceeding. Therefore, according to Lucero's argument, the contempt was not committed "in the presence of the court" and C.R.C.P. 107(b) was improperly applied.

It is Lucero's position that the correct procedure was for the court to issue advance written notice and afford a hearing pursuant to the provisions of C.R.C.P. 107(c), which states:

"When it appears to the court by motion supported by affidavit that contempt has been committed Out of the presence of the court, it may ex parte order a citation to issue to the person so charged to appear and show cause at a time designated why he should not be punished therefor. The citation and a copy of the motion and affidavit shall be served upon such person a reasonable time before the time designated. . . ." (Emphasis added.)

Unfortunately, Rule 107 contains no amplification as to the meaning of the phrase "in the presence of the court." We look to the case law and legislative purpose for guidance.

The only relevant Colorado decision to interpret this provision is Smaldone v. People, 158 Colo. 7, 405 P.2d 208 (1965). After Smaldone refused on Fifth Amendment grounds to answer any questions propounded to him before a grand jury, he was brought before the court. The questions were repeated and Smaldone reiterated his blanket refusal to testify. Thereupon, the trial court judged him guilty of criminal contempt and sentenced him to jail.

In Smaldone, this court affirmed the trial court's judgment and approved of the summary contempt proceeding, finding that the contempt had occurred "in the presence of the court":

"(I)t is the act of defiance in refusing to answer any and all questions which might be asked of him, Which act was committed by the witness in the presence of the court, that forms the basis for the judgment of contempt." 158 Colo. at 11, 405 P.2d at 211. (Emphasis added.)

See also Enrichi v. United States, 212 F.2d 702 (10th Cir. 1954).

Six months after Smaldone was announced, the United States Supreme Court adopted a contrary interpretation of the phrase "in the presence of the court" in Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). Harris arose in the context of Federal Criminal Rule 42(a...