State v. Passmore

Decision Date22 February 2005
Docket NumberNo. 3950.,3950.
Citation363 S.C. 568,611 S.E.2d 273
PartiesThe STATE, Respondent, v. Melissa PASSMORE, Appellant.
CourtSouth Carolina Supreme Court

Assistant Appellate Defender Tara S. Taggart, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.


A family court judge found Melissa Passmore (Appellant) in willful contempt of a prior order and sentenced her to one year in prison. Appellant contends her sentence violates the United States Constitution. We agree but affirm.1


In 1996 the family court issued a written order requiring Appellant and her husband to ensure that their eight-year-old daughter "regularly attend school and see to it that the minor(s) does/do so attend school for the remainder of this school year and future school years, under penalty of law." In February of 2002, when their daughter was fourteen years old, Appellant and her husband were summoned to a rule to show cause hearing to answer allegations of educational neglect in connection with their daughter. The family court continued the hearing so that the Passmores could obtain counsel. The proceeding resumed in April of 2002, and the family court judge found Appellant and her husband in willful contempt of the 1996 order. The judge sentenced both of them to one year in prison, and she took emergency protective custody of the Passmores' minor daughter. Appellant contends the sentence violated her federal constitutional right to a trial by jury in serious criminal cases.

I. The Constitutional Limitation on the Contempt Power

"The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice." Curlee v. Howle, 277 S.C. 377, 382, 287 S.E.2d 915, 917 (1982) (citing McLeod v. Hite, 272 S.C. 303, 251 S.E.2d 746 (1979); State v. Goff, 228 S.C. 17, 88 S.E.2d 788 (1955)). The determination of contempt ordinarily resides in the sound discretion of the trial judge. State v. Bevilacqua, 316 S.C. 122, 129, 447 S.E.2d 213, 217 (Ct.App.1994).

Contempt results from the willful disobedience of an order of the court, and before a court may hold a person in contempt, the record must clearly and specifically demonstrate the acts or conduct upon which such finding is based. Curlee at 382, 287 S.E.2d at 918; accord Cheap-O's Truck Stop, Inc. v. Cloyd, 350 S.C. 596, 606, 567 S.E.2d 514, 519 (Ct.App.2002). A willful act is "one done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say with bad purpose either to disobey or disregard the law." Bevilacqua, 316 S.C. at 129, 447 S.E.2d at 217 (internal quotation marks and citation omitted). Intent for purposes of criminal contempt is subjective, not objective, and must necessarily be ascertained from all the acts, words, and circumstances surrounding the occurrence. Id. (citing State v. Bowers, 270 S.C. 124, 241 S.E.2d 409 (1978)).

Although the contempt power is inherent and essential to the preservation of orderly proceedings, it is not unbounded; the power of contempt is checked by the sacrosanct right to be tried by a jury of one's peers. Article III, Section 2, of the United States Constitution provides: "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." The right to a jury trial is amplified by the Sixth Amendment, which reads, in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."

Currently, these provisions require a contemnor to be allowed a jury trial when facing a serious sentence — i.e., one of greater than six months in prison. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). However, contemnors have not always been afforded the right to a jury trial, even in serious cases. As late as 1964, the United States Supreme Court held that there was no right to a jury trial in a criminal contempt case. See U.S. v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964). Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) tempered the longstanding rule expressed in Barnett. In Cheff, the Court upheld a criminal contempt sentence of six months imposed without the benefit of a jury trial. Yet, the Court distinguished the conviction as involving a petty offense and concluded: "sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof." Id. at 380, 86 S.Ct. 1523.

With Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court declared the provisions of the Sixth Amendment were applicable to state governments via the Fourteenth Amendment:

Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in federal court — would come within the Sixth Amendment's guarantee.

Id. at 149, 88 S.Ct. 1444 (footnote omitted). The Court further established that "in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Id. at 157-58, 88 S.Ct. 1444. However, the Court was careful to note: "we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial." Id. at 158, 88 S.Ct. 1444 (footnotes omitted).

A pivotal companion case, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), presented the question whether a state court could sentence a criminal contemnor to two years imprisonment without a jury trial. The Bloom court began by observing that the Court had "consistently upheld the constitutional power of the state and federal courts to punish any criminal contempt without a jury trial." Id. at 195-96, 88 S.Ct. 1477 (emphasis added). The Court acknowledged the holding of Cheff that contempt was not an intrinsically serious offense and that punishment of six months in prison did not render an offense serious. Justice White, writing for the Bloom majority, then explained:

Our deliberations have convinced us, however, that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution, now binding on the States, and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial.


Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution apply. We hold that it is, primarily because in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power.

Bloom at 198-202, 88 S.Ct. 1477.

Thus, Duncan established that a jury trial must be afforded to a defendant facing a serious offense, and Bloom held that Duncan applies in the criminal contempt context. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), then presented the Court with the task of defining the line between petty and serious offenses. The Court cogently explained:

In deciding whether an offense is `petty,' we have sought objective criteria reflecting the seriousness with which society regards the offense, ... and we have found the most relevant such criteria in the severity of the maximum authorized penalty.... [W]e have held that a possible six-month penalty is short enough to permit classification of the offense as `petty,' ... but that a two-year maximum is sufficiently `serious' to require an opportunity for jury trial.... The question in this case is whether the possibility of a one-year sentence is enough in itself to require the opportunity for a jury trial. We hold that it is. More specifically, we have concluded that no offense can be deemed `petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized.

Id. at 68-69, 90 S.Ct. 1886 (footnote and citations omitted).

In 1974, the Court issued two opinions treating the right to a jury trial as affected by multiple contempt sentences of six months or less. In Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), Codispoti was tried before a judge on contempt charges stemming from a prior criminal proceeding in which Codispoti was a defendant. His demand for a jury trial in the contempt case was denied. Id. at 507-08, 94 S.Ct. 2687. The judge found he had committed seven contemptuous acts and sentenced him to six months in prison for each of six contempts and three months in prison for the seventh, the sentences to run consecutively. Id. at 509, 94 S.Ct. 2687. Therefore, Codispoti was sentenced to three years and three months for his contemptuous...

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