State ex rel. Robinson v. Hartenbach
| Decision Date | 26 July 1988 |
| Docket Number | Nos. 70278,70282,s. 70278 |
| Parties | STATE ex rel. James R. ROBINSON, Relator, v. Honorable James R. HARTENBACH, Judge, Circuit Court of St. Louis County, Respondent. STATE ex rel. Theodore ALDRICH, Relator, v. Honorable James R. HARTENBACH, Judge, Circuit Court of St. Louis County, Respondent. |
| Court | Missouri Supreme Court |
David C. Godfrey, Clayton, Steven S. Fluhr, St. Louis, for relator.
Michael J. Smith, Asst. Pros. Atty., George R. "Buzz" Westfall, Pros. Atty., Clayton, for respondent.
James Robinson and Theodore Aldrich, two of the jurors sequestered for the criminal trial of Walter Harvey, spliced the disconnected wires on a television-radio set in their hotel room and watched or listened to newscasts concerning the trial in violation of the court's order. Although their misconduct was discovered shortly after the trial, the court did not commence prosecution for indirect criminal contempt for more than 2 years. They were then given a hearing after which they were found guilty of criminal contempt, fined $21,807.62 each and sentenced to imprisonment for 60 days in the Department of Justice Services, St. Louis County. Upon their request, a preliminary writ in prohibition issued from this Court, staying the execution of sentence. Because the applicable statute of limitations, section 556.036.2(2), RSMo 1986, bars prosecution for these criminal contempts after 1 year, the preliminary writ is made absolute.
The Harvey trial attracted extensive pretrial publicity that necessitated transporting the jury from Kansas City to St. Louis. Robinson and Aldrich, as members of that jury, shared a hotel room. Throughout the trial, at each adjournment, respondent read MAI-CR 2d 1.08 to admonish the jurors not to "read, view or listen to any newspaper, radio or television report of the trial." Despite this order, on the evening of the first day of trial, Robinson stripped the wires of the television-radio set, and used the bare wire to connect the set to the electrical outlet in the room that he shared with Aldrich. Both proceeded to watch a television broadcast dealing with the trial.
The jurors' misconduct was not immediately discovered and both participated in the deliberations that ultimately produced a guilty verdict. Sometime between the jury verdict on December 16, 1985, and January 10, 1986, their misconduct was discovered. The matter was then included in defendant's motion for a new trial. At the hearing on this motion both Robinson and Aldrich testified without counsel and without any statement or warnings of consequences by the court or assistant prosecuting attorney. Respondent denied the motion, determining that despite the admitted misconduct, Walter Harvey had not been prejudiced.
On April 28, 1987, the Missouri Court of Appeals, Eastern District, reversed the conviction of Walter Harvey and remanded the cause to respondent for another evidentiary hearing on the question of prejudice caused by the jurors' misconduct, State v. Harvey, 730 S.W.2d 271 (Mo.App.1987). On remand respondent found that the State was unable to establish conclusively that their misconduct had not been prejudicial and granted the motion for new trial.
Thereafter a notice of hearing for criminal contempt was sent to the two jurors to show cause why they should not be held in contempt for violation of the court's instruction against viewing television broadcasts concerning the case. They appeared at the February 22, 1988, hearing with counsel; no request for a jury trial was made at that time.
At the hearing the jurors declined the opportunity to present evidence on either guilt or punishment, were found guilty beyond a reasonable doubt and the punishment was assessed. This litigation ensued.
Relators contend the writ should be made absolute because: 1) the prosecution for criminal contempt occurred after the expiration of the 1 year statute of limitations; 2) relators were deprived of their right to a jury trial; 3) the court erred in admitting relators' testimony, taken without "Miranda warnings"; 4) the evidence was insufficient to find relators acted willfully. Specifically, relators contend that criminal contempt, section 476.110(3), RSMo 1986, is a misdemeanor and thus controlled by the 1 year statute of limitations in section 556.036.2(2), RSMo 1986. Relators reason as follows:
Premise Number 1--The statutory penalty for contempt is a fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. Section 476.120, RSMo 1986.
Premise Number 2--A term of imprisonment in the county jail cannot exceed 1 year. Section 558.011, RSMo 1986.
Premise Number 3--If the maximum sentence to imprisonment is 1 year, or less, the crime is a misdemeanor. Section 556.016.3, RSMo 1986.
Conclusion--Because the maximum punishment for criminal contempt is a term of imprisonment in the county jail and such cannot exceed 1 year, criminal contempt is a misdemeanor. The statute of limitations period applicable to a misdemeanor is 1 year. Section 556.036.2(2).
Respondent argues Premise Number 1 is erroneous because criminal contempt is not a crime but is sui generis and cites Osborne v. Owsley, 364 Mo. 544, 264 S.W.2d 332 (1954), cert. denied, 348 U.S. 822, 75 S.Ct. 35, 99 L.Ed. 648 (1954). This argument fails to comprehend that a proceeding sui generis can, and in this case does, interact with the established statutory framework. See, e.g., Karsznia v. Kelsey, 262 S.W.2d 844 (Mo.1953). Because contempt is sui generis, it could be, and in this case is, controlled by the statute of limitations applicable to misdemeanors although it is not a "crime" within the meaning of the criminal code.
Respondent argues Premise Number 2 is faulty in that contempt could be classified as a Class C or D felony because both could be punished by imprisonment in the county jail. § 558.011.2, RSMo 1986. A 3 year limitations period is applicable to Class C and D felonies. § 556.036.2(1), RSMo 1986.
This argument fails because Class C and D felonies could be punished by a term of imprisonment longer than 1 year; criminal contempt can be punished only by a sentence to imprisonment in the county jail which must be less than 1 year. Therefore, criminal contempt could not be classified as a felony.
Respondent also contends a term of imprisonment "in the county jail" could be for any length of time and is not limited to 1 year or less by section 558.011. Respondent's argument fails because section 558.011 and its subparts reveal a legislative intent to limit terms of imprisonment in the county jail to 1 year or less. Terms of imprisonment exceeding 1 year are to be served in the custody of the department of corrections and human resources. § 558.011.2.
Respondent argues laches should be the doctrine of limitations applicable in contempt cases and cites State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538 (Ala.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978). The notion that laches, an equitable doctrine, would be applicable in a contempt proceeding stems from the historical classification of contempt as an equitable remedy at common law.
Respondent's argument fails because a portion of the common law has been codified and "all courts of record in Missouri have both inherent and statutory power to punish a criminal contempt committed within or without their presence." Osborne v. Purdome, 244 S.W.2d 1005, 1012 (Mo.banc 1952), cert. denied, 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952). In this case the contumacious conduct is proscribed specifically by the contempt statute, section 476.110(3), RSMo 1986, which authorizes punishment for criminal contempt of persons guilty of "willful disobedience of any process or order lawfully issued." Because the contempt statute is applicable, the statutory scheme requires that prosecution for criminal contempt be commenced within 1 year. § 556.036.2(2), RSMo 1986. This result allows all persons affected to know the precise limitations period for the prosecution of criminal contempt and eliminates the case by case resolution that occurs after the fact when the doctrine of laches is applied.
This mandate is also the majority rule. See, e.g., Gompers v. U.S., 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115 (1914); Pate v. Toler, 190 Ark. 465, 79 S.W.2d 444 (1935); Gordon v. Com., 141 Ky. 461, 133 S.W. 206 (1911); Com. v. Gallarelli, 372 Mass. 573, 362 N.E.2d 923 (1977); In re Jibb, 123 N.J. Eq. 251, 197 A.12 (1938); Higginbotham v. Com., 206 Va. 291, 142 S.E.2d 746 (1965); State v. Phipps, 174 Wash. 443, 24 P.2d 1073 (1933). The annotation at 100 A.L.R.2d 439, 442 notes: "A different situation exists where punishment for the acts constituting direct contempt is barred by a statute of limitations, with the majority of cases taking the viewpoint that in such a situation the power of the court to punish for contempt is lost." In determining the applicable limitations period there is no reason to distinguish those cases involving "direct" from "indirect" criminal contempt. The limitations period and the policies behind it are equally applicable to both.
Respondent argues this Court, in order to hold for relators, must overrule Osborne v. Owsley, 264 S.W.2d 332, which held that a contempt proceeding based on a charge of subornation of perjury was not barred by the 1 year limitations period in section 541.210, RSMo 1949 (now 556.036). It is unnecessary to overrule Osborne v. Owsley because it did not involve contumacious conduct proscribed specifically by the contempt statute, section 476.110. Because the court was exercising its inherent rather than statutory contempt power, the action could not properly be analogized to a misdemeanor under the statutory scheme. Thus the action was not controlled by the 1 year statute of limitations. Whether the prosecution for contempt in Osborne v. Owsley...
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