State v. Grayhurst

• Decision Date: 23 June 2004
• Docket Number: No. 2001-119-C.A.,2001-119-C.A.
• Citation: 852 A.2d 491
• Parties: STATE v. Michael R. GRAYHURST.
• Court: Rhode Island Supreme Court

852 A.2d 491

STATE v. Michael R. GRAYHURST.

No. 2001-119-C.A.

Supreme Court of Rhode Island.

June 23, 2004.

Jane M. McSoley, Esq., Providence, For Plaintiff.

Robert B. Mann, Esq., Providence, For Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, and FLAHERTY, JJ.

OPINION

WILLIAMS, Chief Justice.

The defendant, Michael R. Grayhurst (defendant), appeals from his convictions on twenty-five criminal counts after a jury trial in the Superior Court. The defendant contends that his convictions should be overturned for various reasons, which are enumerated below. For the reasons indicated hence, we affirm the judgment of the Superior Court.¹

I Facts and Travel

A therapist once commented on the problem of "Women Who Love Too Much."² The defendant is a man who by his own admission loves too much; he is, in fact, a man who claims to "love the s* * * out of" his ex-wife, Jane Grayhurst (Ms. Grayhurst). Ms. Grayhurst filed for divorce in 1994. In 1996, Ms. Grayhurst sought and was granted a no-contact order from the District Court enjoining defendant from harassing or threatening her. The divorce was finalized in 1997. In 1998, after defendant had violated the no-contact order numerous times, Ms. Grayhurst obtained a second no-contact order from the District Court. Despite the no-contact orders, defendant, who was incarcerated at the Adult Correctional Institutions (ACI), began sending Ms. Grayhurst mail. The correspondence consisted of greeting cards, letters, pamphlets and newspaper clippings on topics such as domestic violence and alcoholism. The correspondence additionally included threats against Ms. Grayhurst and various public officials, including judges. Ms. Grayhurst eventually decided to contact authorities about the correspondence, and in November 1997 contacted the office of the Special Assistant Attorney General Bethany Macktaz and Detective John A'Vant (Det.A'Vant)³ of the Rhode Island State Police. A mail monitor subsequently was placed on all outgoing mail that defendant sent to Ms. Grayhurst.

Additionally, in 1997, as he was leaving the courtroom after a hearing before General Magistrate John O'Brien of the Family Court relating to the sale of the Grayhursts' marital domicile, defendant yelled at General Magistrate O'Brien, "stick it up your ass, you son of a bitch." Upon hearing this, General Magistrate O'Brien ordered that defendant be brought back into the courtroom. The defendant resisted being brought back into court, and, during the struggle, kicked Deputy Sheriff Richard Ploude (Sheriff Ploude), who suffered serious injuries and who testified that he has been unable to return to work since the 1997 Family Court incident. As a result of the incident, General Magistrate O'Brien found defendant in contempt of court.

Based on defendant's continued violation of the no-contact orders, as well as a complaint that General Magistrate O'Brien lodged with the Rhode Island State Police, Det. A'Vant decided to charge defendant with violating a no-contact order and with threatening a public official. Detective A'Vant subsequently arranged to interview defendant at the ACI to inform him of the pending charges. The defendant eventually was charged with nine counts of threats to public officials, ten counts of violating a no-contact order, three counts of extortion and blackmail, one count of stalking, one count of assault on a uniformed sheriff/officer and one count of obstructing a police officer.

The Attorney General filed three informations, charging defendant with the above-mentioned criminal counts, against defendant: information No. P2/00-1114A, which was filed on March 22, 2000; information No. P2/97-3209A, which was filed on September 23, 1997; and information No. P2/00-1052A, which was filed on March 16, 2000. After a jury trial in the Superior Court, defendant was convicted on twenty-five counts and sentenced to a total of thirty-five years to serve. The individual sentences defendant was given on each count are included in the chart of charges, convictions and sentences imposed, in the Appendix to this opinion.

II Double Jeopardy

The defendant argues that (1) his conviction on count 1 of information No. P2/97-3209A for assaulting Sheriff Ploude was based on the same acts for which General Magistrate O'Brien found defendant to be in contempt of court; therefore, the assault charge should be barred on double jeopardy grounds; (2) his conviction on count 1 of information No. P2/00-1052A for extortion and blackmail should merge with count 21 of the same information for violation of a no-contact order because a letter defendant sent to Ms. Grayhurst formed the basis for both of these charges; and (3) his conviction on count 10 of information No. P2/00-1052A for stalking should merge with counts 12, 17, 18, 21, 23 and 26 of the same information for violations of a no-contact order because defendant's repeated contacts with Ms. Grayhurst, by the correspondence defendant sent her, formed the basis of both charges of stalking and the violations of a no-contact order. Merger is essentially a double jeopardy argument. State v. Boudreau, 113 R.I. 497, 502, 322 A.2d 626, 629 (1974).

The defendant failed to present a double jeopardy argument before trial. Relying on Rule 12(b)(2) of the Superior Court Rules of Criminal Procedure, we have held that "the defense of double jeopardy can be raised only by a motion filed before trial and that a defendant's failure to so move constitutes a waiver of his or her right to do so (though the court, for cause shown, may grant relief from the waiver)." State v. McGuy, 841 A.2d 1109, 1115 (R.I.2003); see also State v. Haney, 842 A.2d 1083, 1084 (R.I.2004). "[T]he strong policy favoring the pretrial presentation of a double-jeopardy motion bars its use at such a late post-trial date absent some compelling reason to grant relief from the waiver sanction of Rule 12(b)(2)." McGuy, 841 A.2d at 1115. This Court perceives no such compelling reason here "to relieve defendant of having waived any double-jeopardy argument by his failure to move on this basis in a timely manner before trial." Id.

Moreover, even if defendant had not waived his double jeopardy argument, we would not overturn any of his convictions on this ground. The prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution is echoed in Article 1, section 7, of the Rhode Island Constitution, which provides "[n]o person shall be subject for the same offense to be twice put in jeopardy." The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal" or conviction. State v. Rodriguez, 822 A.2d 894, 905 n. 13 (R.I.2003) (quoting United States v. Abreu, 952 F.2d 1458, 1464 (1st Cir.1992)). It also protects against "multiple punishments for the same offense." Id. (quoting Abreu, 952 F.2d at 1464). In determining whether an accused is in danger of being punished more than once for the same offense, "the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 905 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

We initially note that defendant never was charged with contempt, and therefore, we assume that it was civil contempt. Double jeopardy does not preclude criminal punishment after a civil sanction has been imposed. See Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (stating that the double jeopardy clause "protects only against the imposition of multiple criminal punishments for the same offense"). Even if this were treated as criminal contempt, however, there would be no double jeopardy violation. In this case, the crimes of criminal contempt and assault of a police officer constitute separate crimes with different elements for each. "[C]riminal contempt is punitive and designed to vindicate the dignity of the court * * *." State v. Price, 820 A.2d 956, 969 (R.I.2003). The crime of assault of police officers and other officials is defined as the knowing and willful striking of a uniformed sheriff." G.L.1956 § 11-5-5. Of these two crimes, only contempt requires an attack on the dignity of the court. A conviction under § 11-5-5 requires proof of an unlawful striking of a uniformed officer. Therefore, although both the contempt and the assault charges arise out of the same incident, "each offense requires proof of a fact that the other does not." In re Malik D., 730 A.2d at 1070, 1074 (R.I.1999).

The defendant's argument that his conviction for extortion and blackmail should merge with one of his convictions for violating a no-contact order on count 21 of information No. P2/00-1052A also fails. Pursuant to G.L.1956 § 11-42-2, "this [C]ourt has consistently stated that the crime of extortion [and blackmail] consists of two basic elements: (1) an oral or a written threat to harm a person or property, (2) accompanied by the intent to compel someone to do something against his or her will." State v. Price, 706 A.2d 929, 933 (R.I.1998). The crime of violating a no-contact order consists of intentionally contacting a victim in contravention of such an order. See State v. Conti, 672 A.2d 885, 886 (R.I.1996) (per curiam) (stating that the defendant's conduct, which consisted of greeting the victim at the post office and while driving, did not violate a no-contact order because the meetings were coincidental, and implying, therefore, that a defendant's contact with a victim must be intentional for it to violate a no-contact order). Conviction for extortion and blackmail, however, requires proof of both a threat and of intent to force someone to act against his or her will. Section 11-42-2. In addition, unique to a...