State v. Martinez-Garcia, A157370 (Control)

• Decision Date: 25 January 2017
• Docket Number: A157372,A157370 (Control)
• Citation: 283 Or.App. 473,389 P.3d 405
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Benito MARTINEZ-GARCIA, aka Gerado Cena Sierra, aka Gerardo Cena-Sierra, aka Angel Gonzalez Lazaro, aka Angel Gonzalez-Lazaro, Defendant-Appellant.
• Court: Oregon Court of Appeals

283 Or.App. 473

389 P.3d 405

STATE of Oregon, Plaintiff-Respondent,

v.Benito MARTINEZ-GARCIA, aka Gerado Cena Sierra, aka Gerardo Cena-Sierra, aka Angel Gonzalez Lazaro, aka Angel Gonzalez-Lazaro, Defendant-Appellant.

A157370 (Control)

A157372

Court of Appeals of Oregon.

Argued and submitted February 23, 2016.

January 25, 2017

Marc D. Brown, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services.

Keith L. Kutler, Salem, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

LAGESEN, J.

Defendant was charged (or, as explained further below, alleged to be charged) with multiple offenses in six different cases. The charging instruments identified defendant by several different names. In an attempt to pin down defendant's true identity, the trial court placed defendant under oath and asked him questions about his identity. In response, defendant invoked his Fifth Amendment privilege against self-incrimination, pointing out that identity would be an issue in the underlying cases. The trial court nonetheless ordered defendant to answer its questions and, when defendant refused to answer some of them, ultimately entered two separate judgments of punitive contempt, ordering defendant to serve 30 days' incarceration in each judgment. Defendant appeals from the contempt judgments under ORS 33.125. We review for legal error, State v. Bailey , 133 Or.App. 310, 312, 891 P.2d 8 (1995), and reverse.

As noted, the state brought charges in six different cases against differently named individuals. At a hearing on the cases, the state contended that defendant was the proper defendant in each case, notwithstanding the variations in name and other identifying information. Defendant, who initially appeared at the hearing by video, acknowledged through counsel, who was present in the courtroom, that he was the person that the state was alleging to be the proper defendant in each case. However, he told the trial court that identity would be an issue in the cases.

The trial court decided to determine defendant's true identity anyway, by compelling defendant to answer questions about his identity under oath:

"I am going to call each case, and I am going to put him under oath and ask him his name. And if he tells me a false name then we will go for other charges. I am not playing games."

Defendant, through his lawyer, objected to the procedure on the ground that it would violate defendant's Fifth Amendment privilege against self-incrimination. The court overruled the objection, placed defendant under oath, and ordered him to confirm his name, his birthdate, and his parents' names in the first case against him. Defendant complied with the court's orders.

Once the trial court had confirmed defendant's identity in the first case, it explained that, with respect to the remaining cases, defendant had "an option of identifying who he is or he can proceed under a false name and end up with other charges." Defendant, through his lawyer, again objected to the procedure, and defense counsel requested that defendant be transported to the courtroom so that counsel and defendant could confer in person. The trial court again overruled the objection, but agreed to transport defendant to the courtroom so that defense counsel could confer with him before defendant responded to the court's additional questions.

After conferring with his lawyer, defendant, through counsel, again objected to the court's procedure on the ground that it violated defendant's Fifth Amendment privilege against self-incrimination. The trial court overruled the objection yet again and called the next case, asking whether the person named in the charging instrument was present in the courtroom. In response, defendant asked to invoke his right to remain silent. The trial court told defendant that he did not have a right to remain silent, and that he would be held in contempt if he did not respond. After conferring with counsel, defendant again invoked his right to remain silent and the trial court summarily held defendant in contempt, ordering him to serve 30 days in jail.¹ The trial court then called the next case, defendant again invoked his right to remain silent, and the trial court again summarily held defendant in contempt, ordering defendant to serve an additional 30 days in jail, for a total of 60 days' incarceration for contempt. Thereafter, the court entered the two judgments of contempt that are the subject of this appeal.

On appeal, defendant contends that the trial court erred by holding him in contempt based on his invocation of his Fifth Amendment privilege against self-incrimination. The state responds that this appeal should be dismissed because it is moot. Alternatively, the state argues that defendant waived his right against self-incrimination when he, under oath, provided some of the information about his identity that the trial court ordered him to provide and that, as a result, the trial court permissibly held defendant in contempt. We conclude that (1) the case is not moot, (2) defendant did not waive his Fifth Amendment privilege against self-incrimination by providing the information ordered by the court with respect to the first case, and (3) the trial court erred in holding defendant in contempt for refusing to answer questions that defendant had a Fifth Amendment privilege not to answer. We therefore reverse the judgments on appeal.

We start with the state's mootness argument. The state points out that the 60-day jail term imposed by the trial court has long since expired, and argues that this case is moot and should be dismissed. As the state more or less acknowledges, however, our case law forecloses that disposition. In this case, the trial court imposed a punitive sanction of a jail term for each of defendant's contempts. See ORS 33.045(2)(b) (confinement is "[p]unitive if it is for a definite period that will not be reduced even if the defendant complies with the court's order or judgment").² Under State v. Hauskins , the expiration of a term of confinement imposed as a punitive sanction for contempt does not render an appeal from the contempt judgment moot. 251 Or.App. 34, 38–39, 281 P.3d 669 (2012). That is because

"a judgment imposing a punitive sanction of confinement for contempt * * * is sufficiently analogous to a criminal conviction that it carries a collateral consequence of a stigma that is analogous to a criminal conviction and, for that reason, an appeal of a judgment of punitive contempt is not rendered moot by completion of the confinement."

Id.

The state nevertheless argues that Hauskins should not control because this case involves summary contempt. In the state's view, summary contempt is different from punitive contempt. That argument misapprehends the nature of summary contempt. By statute, contempt sanctions—whether imposed summarily or not—are either remedial or punitive. ORS 33.045. Subject to certain limits, ORS 33.096 authorizes a trial court to impose sanctions summarily when the contemptuous act occurs "in the immediate view and presence of the court." But where the contemptuous act occurs outside the court, ORS 33.055 (remedial contempt) and ORS 33.065 (punitive contempt) prescribe procedures the court must follow before issuing a contempt judgment.

Here, the conduct that the trial court found to be contemptuous occurred in court. Therefore, the court was authorized to impose punitive contempt sanctions summarily under ORS 33.096. However, the fact that the court employed summary procedures to impose a punitive sanction of confinement on defendant does not render the judgment imposing that punitive sanction any less stigmatizing than a judgment imposing a punitive sanction through the non-summary procedures that govern when contemptuous conduct occurs outside of the trial court's presence. In other words, as we held unequivocally in Hauskins , the expiration of a punitive term of confinement imposed as a contempt sanction does not moot the appeal from the contempt judgment because of the stigma attached to a judgment imposing a punitive term of incarceration. This appeal, therefore, is not moot.

The state next argues that defendant waived his Fifth Amendment privilege against self-incrimination when he acquiesced to the court's orders to provide identifying information about himself in the first case. Citing State v. Lea , 146 Or.App. 473, 482–83, 934 P.2d 460, rev. den. , 325 Or. 438, 939 P.2d 622 (1997), the state argues that "[i]t is well-settled that a criminal defendant who elects to testify in a criminal proceeding waives the privilege against self-incrimination as to matters covered in defendant's testimony."

The state is right that a defendant who elects to testify waives any Fifth Amendment privilege on cross-examination with respect to the matters to which the defendant testified on direct examination. Brown v. United States , 356 U.S. 148, 155–56, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) ; Lea , 146 Or.App. at 482–83, 934 P.2d 460. But defendant did not make a choice to testify in the sense contemplated by Brown ; the trial court, in effect, made that choice for him. The rationale in Brown "applies to a witness in any proceeding who voluntarily takes the stand and offers testimony in his own behalf." Brown , 356 U.S. at 155, 78 S.Ct. 622 (emphasis added). Here, defendant took the stand only after the court overruled his Fifth Amendment objection, ordered him to submit to the oath, and questioned him about his identity. Under those circumstances, defendant cannot be said to have voluntarily elected to testify in a way that waived his Fifth Amendment privilege.

Apart from its mootness and waiver arguments, the state does...