State v. Hobble
| Decision Date | 13 April 1995 |
| Docket Number | No. 61788-1,61788-1 |
| Citation | 892 P.2d 85,126 Wn.2d 283 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Brian James HOBBLE, Appellant, and Steven Scott Dow, Defendant. |
Washington Appellate Defender Ass'n, Rita J. Griffith, Seattle, for appellant.
Norm Maleng, King County Prosecutor, Theresa Fricke, Sr. Deputy Prosecutor, Catherine Shaffer, Deputy Prosecutor, Appellate Unit, Seattle, for respondent.
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Appellant Brian Hobble challenges a 30-day sentence for contempt, maintaining among other things that he was denied the right to a jury trial. We affirm.
Appellant and Steven Dow were charged with second degree burglary committed on February 10, 1991. Appellant pleaded guilty to attempted second degree burglary. In exchange for Appellant's testimony at Dow's trial, the State agreed to recommend a sentence at the low end of the standard range and promised not to file any additional charges resulting from the burglary incident.
At the time Appellant was arrested and gave the police a formal statement, he used a false name. He gave another false name when he was booked. During pretrial proceedings in Dow's case, Dow's attorney argued that the defense was entitled to impeach Appellant with his use of an alias. The prosecutor refused to grant Appellant immunity for the use of an alias, and Appellant argued that in the absence of a grant of immunity sufficient to cover such testimony, he was entitled to assert a privilege against self-incrimination as to any testimony about his use of an alias.
The court ruled that Appellant had no privilege as to the use of an alias because the State had agreed not to prosecute, and rejected Appellant's counsel's argument that the privilege applied because Appellant's testimony under oath could be used for impeachment in the future or could lead to some possible, unspecified charge in the future.
The next day the matter came up again and Appellant's counsel advised the court he had found additional cases for the court's consideration. Since jury selection was scheduled for that day, the court set a hearing for the matter on the next court day.
At that hearing, the court stated that Appellant had transactional immunity with regard to what happened the night of the burglary, which included not only what he did, but what he said. In light of that immunity, the court could not see how Appellant could be in jeopardy for testifying as to the use of an alias. Counsel advised that there was concern about crimes which may not have been charged yet, but refused to elaborate. At that point, an in camera hearing was held. Appellant's counsel then argued that when people give aliases
they may have done other things with that name, and my client's admission on the stand that he used a particular name can be brought back to haunt him down the road if other crimes are uncovered and his admission under oath to that name was used.
... [H]e does have a fear that that would be used against him.
Verbatim Report of Proceedings (Aug. 5, 1991), at 6.
The court adhered to its original ruling.
During Dow's trial, the State asked Appellant about the formal statement he had made (under a false name) to police officers concerning what was going on the night of the burglary. Appellant testified that in his statement he told the officers that he had gone "down to this place to rip it off[,]" Verbatim Report of Proceedings (Aug. 2 and 5, 1991), at 30, but Appellant did not testify as to what he specifically told the officers because, he said, he could not remember. Upon further questioning, he agreed his memory was better on the night he was arrested, that he told the police what happened and about statements Dow made, that the police wrote down what he said, that he reviewed what they wrote, and that what they wrote was an accurate statement of what he said. However, when asked whether the statement before him was the one he had made to the officers, he refused to answer on the basis it might incriminate him. The court then informed Appellant that in light of his plea bargain and the State's agreement not to file additional charges arising from the incident of February 10, 1991, he was not in jeopardy in answering the State's questions.
When Appellant sought clarification, the court repeated the explanation that Appellant had been granted immunity, that any statement he made in connection with the burglary incident could not be the basis for additional charges and that his answers would not place him in jeopardy. The court directed Appellant to answer.
Despite the court's ruling, Appellant refused to answer questions about the statement. The trial court found him in contempt and advised him that appropriate sanctions in the form of jail time would be imposed at a later time.
On cross examination, defense counsel asked, "You promised the State you would testify truthfully, is that correct?" Appellant answered "Right". Verbatim Report of Proceedings (Aug. 2 and 5, 1991), at 37. Counsel next asked "Doesn't testifying truthfully include owning up to whether or not you made a statement that night?" Verbatim Report of Proceedings (Aug. 2 and 5, 1991), at 37. Appellant refused to answer the question, again asserting a right not to incriminate himself. The court again advised Appellant he was not in jeopardy in answering the question, and warned him that if he refused to answer he would be held in contempt. After defense counsel repeated the question, however, Appellant refused to admit the statement was his, and refused to answer questions about whether he gave police a false name the night of his arrest. Appellant was again held in contempt, with sanctions to be imposed later. Later during cross examination, the trial judge upheld Appellant's claim of privilege against self-incrimination when Appellant was questioned about other occasions when he and Dow might have acted together. (After Appellant testified, the court advised the jury of the parties' stipulation that Appellant's name is Brian Hobble, that when arrested he gave a false name, Vincent Kauder, and that he was booked under the name Vincent Mark Legari.)
The court said that sanctions would be imposed at a later time in order to allow Appellant's counsel time to argue what kind of sanctions should or should not be imposed.
Dow's case went to the jury August 7, 1991. He was convicted, and was sentenced December 5, 1991. One week after Dow's case went to the jury, a hearing was held to determine sanctions for Appellant's contempt. Appellant's counsel asked the court not to impose sanctions, arguing that Appellant had legitimate safety concerns resulting from testifying against Dow (Appellant and Dow were incarcerated in the same facility); that Appellant's refusal to answer the questions was done in good faith; and that appellant was not "particularly contemptuous in his conduct". Verbatim Report of Proceedings (Aug. 14, 1991), at 3. The court declined to reconsider its ruling.
Counsel then argued no sanctions were appropriate, given that the State was able to convict Dow and therefore there was no prejudice resulting from Appellant's refusal to answer. 1 Counsel also argued that the court was without authority to impose sanctions because Appellant was not given the opportunity to purge the contempt, as counsel believed would be required in the case of a civil contempt, and there was no authority to find criminal contempt because no charges were filed against Appellant.
The court asked Appellant if there was anything which he wished to say, and Appellant responded "no".
The court acknowledged a gray area between civil and criminal contempt, but observed that this was a direct contempt, "a contempt of court right on during trial", and the court had the authority to adjudge Appellant in contempt. The court imposed a 30-day jail sentence to be served consecutive to any time Appellant was then serving. Defense counsel argued the sentence was a punitive sentence, which required a jury trial.
The court entered an order which stated that
The above-entitled Court, having held a hearing to determine the sanctions for contempt of court for Brian Hobble's failure to respond to questions propounded during trial in this cause
IT IS HEREBY ORDERED that Brian Hobble be sentenced to 30 days in the King County Jail consecutive to any time he is currently serving.
Clerk's Papers, at 4. On September 10, 1991, the court stayed the sentence pending appeal. Division One certified the appeal to this court, which accepted certification.
In 1989, the Legislature passed new laws respecting contempt, RCW 7.21. This is a case of first impression under the new statutes.
"Contempt of court" includes "intentional: ... Refusal as a witness ... without lawful authority, to answer a question ...". RCW 7.21.010(1)(c).
The first question is whether Appellant's claim of the privilege against self-incrimination is a claim of lawful authority to refuse to answer questions about his use of an alias.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself". This privilege includes the right of a witness not to give incriminating answers in any proceeding. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, reh'g denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972). The state constitution provides that "[n]o person shall be compelled in any criminal case to give evidence against himself ...". Const. art. 1, § 9.
To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of ...
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