People v. McCartney

• Decision Date: 04 May 1984
• Docket Number: Docket No. 69321
• Citation: 132 Mich.App. 547,348 N.W.2d 692
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda McCARTNEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 692

348 N.W.2d 692

132 Mich.App. 547

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda McCARTNEY, Defendant-Appellant.

Docket No. 69321.

Court of Appeals of Michigan.

Submitted Oct. 11, 1983.

Decided March 5, 1984.

Released for Publication May 4, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., for the People.

Baker, Durst, Marr & Nelson by William S. Kenyon, Adrian, for defendant-appellant on appeal.

Before DANHOF, P.J., and BRONSON and PETERSON, ^* JJ.

PETERSON, Judge.

Appellant, charged with embezzlement by a trustee of a sum in excess of one hundred dollars, M.C.L. Sec. 750.174; M.S.A. Sec. 28.371, appeals by leave granted from the circuit court's denial of her motion to dismiss. The motion challenged the prosecution as violative of the double jeopardy clauses of the United States ¹ and Michigan ² Constitutions. The prior jeopardy to which appellant refers was a contempt adjudication in the probate court from which her authority as a fiduciary was derived.

The Probate Court of Lenawee County appointed appellant as conservator of her minor daughter's estate consisting of $1,731.65 received in settlement of a lawsuit. The money was deposited in the Bank of Lenawee County pursuant to a limitation on appellant's powers as a conservator contained in her letters of authority. ³ On March 1, 1982, the probate court authorized the transfer of the funds to a different bank, by the following order:

" * * * the Bank of Lenawee County is hereby authorized to transfer the funds standing in the name of said minor, to the Clinton Branch of the Ann Arbor Bank & Trust."

Neither the letter nor the spirit of the order were obeyed. The Bank of Lenawee County did not effect a transfer of the funds as specified in the order. Instead, it gave the money to appellant who did not deposit it with Ann Arbor Bank & Trust.

On July 20, 1982, the probate register signed a complaint in district court indicating the challenged embezzlement prosecution. Following an examination, the defendant was bound over to the circuit court for a trial. On August 30, 1982, the probate court issued a show cause order ⁴, the hearing of which on September 13, 1982, ended with a contempt adjudication by which appellant was sentenced to serve 20 days in jail or pay $1,731.35.

Appellant contends that the adjudication and punishment was for criminal contempt based on the same act as that for which the embezzlement prosecution is instituted. If so, she cannot again be put in jeopardy under the United States and Michigan Constitutions.

While it was once believed that double jeopardy and other constitutional rights applicable in criminal cases did not attach to contempt proceedings because they were judicially sui generis and not criminal in nature, ⁵ that view has clearly been untenable as to criminal contempt actions since Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), having held that the 14th Amendment made the 6th Amendment right to trial by jury in criminal cases obligatory in state prosecutions, Bloom held that a criminal contempt resulting in a two-year sentence required trial by jury in the state court. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), it was held that the 14th Amendment also made the double jeopardy provisions of the 5th Amendment applicable to state prosecutions, and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, Anno. 25 L.Ed.2d 968 (1970), dispelled the notion that double jeopardy was inapplicable to the prosecution of the same act by different sovereignties. It thus follows that the United States Constitution bars state criminal prosecution and criminal contempt proceedings for the same conduct.

The same result must obtain under the Michigan Constitution for it is clear that, as to criminal contempts, Michigan has long since abandoned the view expressed in In re Chadwick, supra, 109 Mich. p. 597, 67 N.W. 1071 that "Proceedings for contempt are not criminal causes within the intent and meaning of the Constitution of the United States or of this State". Since Cross Co. v. UAW Local No. 155 (AFL-CIO), 377 Mich. 202, 210, 139 N.W.2d 694 (1966), identified criminal contempt proceedings as mandating the constitutional protections afforded those charged with crimes, ⁶ numerous cases have affirmed in regard to criminal contempts the right to counsel, the presumption of innocence, that guilt must be proved beyond a reasonable doubt, and that the accused need not be a witness against himself. See, e.g., Jaikins v. Jaikins, 12 Mich.App. 115, 120, 162 N.W.2d 325 (1968); People v. Goodman, 17 Mich.App. 175, 169 N.W.2d 120 (1969); People v. Randazzo, 21 Mich.App. 215, 175 N.W.2d 333 (1970); People v. Joseph, 384 Mich. 24, 179 N.W.2d 383 (1970); People v. Johns, 384 Mich. 325, 183 N.W.2d 216 (1971); People v. Nowicki, 384 Mich. 482, 185 N.W.2d 390 (1971); State Bar of Michigan v. Cramer, 399 Mich. 116, 249 N.W.2d 1 (1976); Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976); Fraternal Order of Police Lodge # 98 v. Kalamazoo County, 82 Mich.App. 312, 266 N.W.2d 805 (1978); and State of Michigan ex rel. Wayne County Prosecutor v. Powers, 97 Mich.App. 166, 293 N.W.2d 752 (1980).

While none of these cases, nor any other in Michigan, have addressed the applicability of the double jeopardy clause to criminal contempts, it would seem clear that the recognition of criminal contempts as the equivalent of criminal prosecutions therein answers the question affirmatively. So it has been held in other states. People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247 (1972), after remand Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 (1972); Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.1978); and People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977), cert. den. 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978).

The distinction between civil and criminal contempts was outlined in People ex rel. Attorney General v. Yarowsky, 236 Mich. 169, 171-172, 210 N.W. 246 (1926), where the Court said:

" 'If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the State alone is interested, in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases.' "

Were the proceedings in the Lenawee County Probate Court for criminal or for civil contempt? At no point in the proceedings was there any attempt on the part of the probate judge to define the contempt citation as civil or criminal, or to define the parameters of the hearing, i.e., either the act for which appellant was subject to possible punishment or for which she was in fact punished. The order to show cause, fn. 4, supra, required appellant to respond for a failure to comply with a prior order of the court directing appellant "to file a certification of deposit pursuant to the order of the court dated March 1, 1982," and "to file proof of proper deposit of funds". The court's order of March 1, 1982, required no such act on the part of appellant. At the onset of the hearing, the probate judge said that the hearing was for appellant to show cause why she should not be held in contempt "for failing to obey the orders of the Court", adding:

"Now on June 15th you were ordered to prove to this Court, show proof to the Court as required by the order that you deposited those funds with the Ann Arbor Ban--the Ann Arbor Bank and Trust Company. Did you deposit those funds to the Ann Arbor Bank and Trust Company?"

There was no court order to file such proof; rather a letter was sent to appellant on June 15th directing her to file such proof. ⁷

Had the probate court afforded appellant any of the protections available to those charged with criminal contempts, it might be concluded that the proceedings were for criminal contempt, but she was afforded none of those rights. She appeared without counsel, was not advised of her right to counsel, and she was sworn and questioned without advice as to her privilege against testifying. The absence of those constitutional amenities does not, however, demonstrate that the proceedings were civil. People v. Johns, supra. ⁸

The sole source to which we can turn, the probate judge having made no written findings or order, other than a commitment order, is the transcript of the September 13, 1982, hearing.

Appellant answered the judge's question, above, negatively, acknowledging that she had "wound up using the money", had "spent it on several different things", but adding that she hadn't taken it for her "own use or betterment of any kind". ⁹ Asked by the judge how she proposed to pay the money back, appellant described her position as an abandoned mother of four who had been on public assistance for seven years, and who had just begun to receive some child support and had obtained the first job she had ever had. She said she could not repay the money at once but could do so, with interest, within six months. The hearing then concluded thus:

THE COURT: "I do not consider that you have purged yourself of contempt, you...