State ex rel. Heidelberg v. Holden
| Decision Date | 28 February 2003 |
| Docket Number | No. 25147.,25147. |
| Citation | 98 S.W.3d 116 |
| Parties | STATE of Missouri ex rel. Charles HEIDELBERG and Sandra Heidelberg, Relators, v. The Honorable Calvin R. HOLDEN, Judge of the Circuit Court of Greene County, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
John E. Price, Rodney H. Nichols, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, for Respondent.
Charles Heidelberg and Sandra Heidelberg (collectively, "Relators") seek this court's writ of prohibition to prevent The Honorable Calvin R. Holden ("Respondent") from compelling them to respond to post-judgment discovery and to testify and produce documents at a judgment debtor's examination. Relators have asserted their privilege against self-incrimination as secured by the Fifth Amendment to the United States Constitution and by Article I, § 19 of the Missouri Constitution. We issued our preliminary writ, which we now make absolute.
Prohibition is a discretionary writ that lies to prevent abuse of judicial discretion, avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001). A writ is not to serve as a remedy for all legal difficulties, nor is it a substitute for appeal, but it is an extraordinary remedy that should lie only in cases of extreme necessity. State ex rel. Lopp v. Munton, 67 S.W.3d 666, 670 (Mo.App. S.D.2002). The burden is on the petitioning party to show that the trial court exceeded its jurisdiction, and that burden includes overcoming the presumption in favor of the trial court's ruling. State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo.App. S.D. 1997). The appellate court's review is limited to the record made in the court below. Id.
The facts necessary to the disposition of this writ application are as follows:
June 19, 2002: in the underlying suit, Savannah Place, Ltd. ("Plaintiff')1 obtained judgment against Relators based upon Relators' personal guarantees on certain notes.2
June 28, 2002: pursuant to Rule 76.28,3 Plaintiff submitted post-judgment interrogatories and requests for production of documents to Relators.
August 2, 2002: Plaintiff filed a motion to conduct judgment debtors' examinations of each of the Relators and to compel answers to the post-judgment discovery requests.
August 20, 2002: Respondent granted Plaintiff's motion to conduct judgment debtors' examinations of Relators and entered orders for the examinations to commence on September 10, 2002 with Relators to produce the documents at that time.
August 27, 2002: Relators asserted their rights against self-incrimination in their responses to Plaintiffs post-judgment interrogatories and requests for production of documents. Relators also filed a motion requesting the court to enter an order quashing Plaintiffs request for production of documents at the debtors' examinations.
August 28, 2002: the prosecutor for Greene County, Missouri issued to each Relator a grant of use immunity that stated:
Debtor, is granted use immunity from prosecution as to any statement made at the judgment debtor's examination, scheduled on or after August 28, 2002, (or as continued by Court Order) in the Circuit Court of Greene County, Case Number 100CC0797. Such use immunity shall protect said debtor from prosecution for any offense related to the content of statements made at the judgment debtor's examination, by way of testimony or documents produced by said debtor. Said use immunity shall be limited to and only apply as [sic] along as:
A. The question asked, the answer given or the document(s) produced directly relate to debtor's ability and means to satisfy said judgment;
B. The answer by debtor is responsive to the question asked by creditor's attorney and shall specifically exclude any questions asked by debtor's attorney, and shall specifically exclude any answer debtor volunteers containing irrelevant information not sought by the question which directly or indirectly tends to incriminate debtor; and
C. Debtor's answer is complete and truthful. Said grant of use immunity does not include use of debtor's testimony at the debtor's examination to prove perjury by debtor at the debtor's examination or perjury by debtor at a previous time when said testimony is used other than for the content of the statement made.
The use immunity herein shall expire at 5:00 p.m. on January 1, 2003, or as further extended by further grant of use immunity by the Prosecuting Attorney. The use immunity is granted with the conditions and time frame as specified above on this 28th of August, 2002.
August 30, 2002: the grants of immunity were filed with the trial court.
September 4, 2002: Relators again raised their privilege against self-incrimination in their Supplemental Motion to Quash Production of Documents at Debtors' Examinations and Motion for Protective Order Regarding Debtors' Examinations, Interrogatories and Request for Production of Documents.
September 5, 2002: Relators' Supplemental Motion to Quash Production of Documents at Debtors' Examinations and Motion for Protective Order Regarding Debtors' Examinations, Interrogatories and Request for Production of Documents was overruled by Respondent.
September 9, 2002: Plaintiff filed a motion for contempt against Relators for their failure to produce the documents requested and to answer Plaintiffs interrogatories. Relators filed their Application for Writ of Prohibition with this court.
September 10, 2002: the trial court heard arguments on Plaintiffs motion for contempt and ordered Relators to immediately produce the documents requested by Plaintiff and to answer Plaintiffs interrogatories. Respondent also ordered Relators to appear for their judgment debtors' examinations and to produce the requested documents at the examinations. Based upon the county prosecutor's grants of immunity, Respondent ordered Relators to answer questions propounded to them at the judgment debtors' examinations without assertion of any claims of privilege against self-incrimination. Ruling on Plaintiffs motion for contempt was withheld pending this court's ruling on Relators' Application for Writ of Prohibition. Relators appeared for their debtors' examinations and refused to answer any questions propounded by Plaintiff, to produce any documents, or to answer any interrogatories and again asserted their privilege against self-incrimination.
September 19, 2002: this court entered a preliminary order in prohibition directing Respondent to refrain from enforcing the orders dated August 20, 2002, September 5, 2002, and September 10, 2002.
We now make the preliminary writ of prohibition absolute.
In their first point relied on, Relators argue that Respondent exceeded his jurisdiction by attempting to compel Relators to answer post-judgment interrogatories and requests for production of documents as specified in Respondent's orders of August 20, 2002, September, 5, 2002, and September 10, 2002 because once they asserted their privilege against self-incrimination, a rebuttable presumption arose that the documents and their answers would tend to incriminate them, and Respondent then was required to find that Relators' responses could not possibly have the tendency to incriminate them. After post-judgment discovery was submitted to Relators pursuant to Rule 76.28,4 Relators asserted their privilege against self-incrimination but Plaintiff failed to present any evidence showing that Relators' responses would not incriminate them. Because Respondent did not find that Relators' responses could not possibly incriminate them, Relators contend the court exceeded its jurisdiction by ordering Relators to respond to the post-judgment discovery. Relators' first point has merit.
It is axiomatic that the privilege against self-incrimination protects the individual from being involuntarily called as a witness against himself in a criminal prosecution. State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 768 (Mo. banc 1987). The court in State ex rel. Long v. Askren summarized Missouri law with respect to assertions of the privilege against self-incrimination at debtors' examinations as follows:
The privilege against self-incrimination is guaranteed by the Fifth Amendment of the United States Constitution and Article I, section 19 of the Missouri Constitution. To avail oneself of the guaranteed right, one must assert the right. The privilege extends to judgment debtors examined pursuant to section 513.380. Thus, a judgment debtor examined pursuant to section 513.380, who invokes the privilege against self-incrimination, cannot be compelled to answer a question the answer to which may tend to incriminate him. An answer that incriminates is an answer which discloses a fact that would form a necessary and essential part of a crime, which is punishable by the laws. The privilege extends not only to refusing to answer the question asked, but also to refusing to explain how the answer might incriminate the witness. Once a witness invokes the right against self-incrimination, a rebuttable presumption arises that the answer to the question posed might tend to incriminate him. The party questioning the witness may rebut the presumption by demonstrating that the answer to the question posed cannot possibly tend to incriminate the witness. The trial court can compel the witness to answer the question only after it finds, as a matter of law, that the witness' response to the question cannot possibly tend to incriminate the witness.
State ex rel. Long v. Askren, 874 S.W.2d 466, 471-72 (Mo.App. W.D.1994) (citations omitted). The privilege against self-incrimination also applies to discovery because a document in the possession of a witness is barely distinguishable from requiring testimony when the facts are within the knowledge of the witness. Id. at...
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