State v. Pothier

• Court: New Mexico Supreme Court
• Writing for the Court: RIORDAN; SOSA, Senior Justice and FEDERICI
• Citation: State v. Pothier, 721 P.2d 1294, 104 N.M. 363, 1986 NMSC 39 (N.M. 1986)
• Decision Date: 23 June 1986
• Docket Number: 16,009,Nos. 16,008,s. 16,008
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Roch Y. POTHIER, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. James Edward CADE, Defendant-Appellant.

Page 1294

721 P.2d 1294

104 N.M. 363

STATE of New Mexico, Plaintiff-Appellee, v. Roch Y. POTHIER, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. James Edward CADE, Defendant-Appellant.

Nos. 16,008, 16,009.

Supreme Court of New Mexico.

June 23, 1986.

[104 NM 364] Janet Clow, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendants-appellants.

Paul Bardacke, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RIORDAN, Chief Justice.

Roch Pothier and James Cade (defendants) were charged with first degree murder. Each defendant gave extra judicial statements to the police, exculpating themselves and inculpating each other. Each defendant was called as a witness in the separate trial of the other. Each defendant claimed the fifth amendment privilege against self-incrimination and was granted use immunity. Despite the grant of immunity, each defendant refused to testify and was held in direct contempt of court. The district judge declared mistrials in each trial and gave the state the option of agreeing to a six-month sentence or having a jury trial on the contempt issue where a sentence of more than six months could be imposed. The state chose the jury trial. In separate trials each defendant was found guilty of criminal contempt and sentenced to life imprisonment. Defendants appeal. Because of the parallel facts and identical issues, the appeals are joined.

The issues defendants raise on appeal are:

A. Defendants were denied a preliminary hearing;

B. The evidence was insufficient;

C. Defendants were denied the use of a duress defense;

D. Proper jury instructions were not given;

E. Allocution was denied;

F. The district judge should have been disqualified; and

G. The sentence given to each defendant was illegal or an abuse of the district court discretion.

We uphold the district court on all issues except the sentences and remand for resentencing.

Contempt

Contempts are frequently neither completely civil nor strictly criminal. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). In either event, a defendant has disobeyed an order from the court and is therefore punished. If it is for civil contempt, the punishment is remedial to coerce defendant to perform the act ordered by the court. But if it is for criminal contempt, the sentence is punitive; to vindicate the authority of the court. State v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957). Imprisonment for civil contempt is ordered where a defendant has refused to do an affirmative act required by the provision of an order, which either in form or substance was mandatory in its character, such as an order by the court to answer certain questions. Imprisonment in such cases is not inflicted as punishment, but instead is intended to coerce a defendant to answer questions. The decree in such cases is that a defendant stand committed unless and until he performs the affirmative act required by the court's order. Upon imprisonment, a defendant "carries the keys of his prison in his own pocket." State v. Our Chapel of Memories of New Mexico, Inc., 74 N.M. 201, 205, 392 P.2d 347, 350 (1964). He can end the sentence and discharge himself of contempt at any moment by doing what he has previously refused to do. Since the purpose is to make the defendant comply, the courts discretion is exercised in considering the character and the degree of harm threatened by continued contumacy and whether or not the contemplated sanctions will bring about a compliance with the court's order.

On the other hand, criminal contempt is punishment that vindicates the authority of the court. Greenwood. In imposing punishment for a criminal contempt, the seriousness of the consequences of the contumacious behavior, the public interest in enforcing a termination of a defendant's defiance and the importance of deterring future defiance are all matters to be considered by the trial court. The trial court is accorded great discretion. Our Chapel of Memories of New Mexico.

Most contempt cases have elements of both civil and criminal contempt. The instant case does not try defendants for murder, only for criminal contempt. They need not escape prosecution for murder. They could be held in civil contempt and confined until they comply with the court's order to testify, and also punished for criminal contempt for their defiance to the court.

This appeal involves only the criminal contempt issues.

A. Preliminary Hearing

There are two types of criminal contempt. Direct contempt is contemptuous conduct in the presence of the court, and indirect contempt is an act committed outside the presence of the court. State v. Stout, 100 N.M. 472, 672 P.2d 645 (1983); In re Klecan, 93 N.M. 637, 603 P.2d 1094 (1979); Roybal v. Martinez, 92 N.M. 630, 593 P.2d 71 (Ct.App.1979).

Defendants here were not given a preliminary hearing. A preliminary hearing is held primarily to show the reasonable probability that the crime or act was committed by the accused. State v. Garcia, 79 N.M. 367, 443 P.2d 860 (1968); State v. Masters, 99 N.M. 58, 653 P.2d 889 (Ct.App.1982); see also State v. Vallejos, 93 N.M. 387, 600 P.2d 839 (Ct.App.1979). The trial judge reasoned that a preliminary hearing was unnecessary in direct criminal contempt of court cases because in essense it was held when the contempt occurred. However, defendants contend that a preliminary hearing was required. They cite N.M. Const. art. II, Section 14, which states that no person shall be held for a capital, felonious or infamous crime without having had a preliminary examination before the examining official. However, contempt of court is not a capital, felonious or infamous crime. See NMSA 1978, Sec. 34-1-2 (Repl.Pamp.1981). Our Chapel of Memories of New Mexico states: "Since actions in contempt are sui generis, we are not forced into technicalities of strict application of either criminal or civil law." 74 N.M. at 204, 392 P.2d at 349 (citation omitted); see also Seven Rivers Farm, Inc. v. Reynolds, 84 N.M. 789, 508 P.2d 1276 (1973). "The right to a preliminary hearing is not discretionary with the judge. A person is either entitled to it as a matter of law, or not at all." Williams v. Sanders, 80 N.M. 619, 620, 459 P.2d 145, 146 (1969). Williams held that a preliminary hearing in juvenile court is not imperative to the fact-finding process to meet the requirements of due process and fair treatment. This is accomplished by a jury trial. Similar to contempt, there is no statute or constitutional provision which requires a preliminary hearing for juveniles. See Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968). The proceeding in juvenile court is not strictly criminal in nature and the fact that a jury trial is required does not make it criminal. Williams. The juvenile code is analagous to contempt in that it is not included in the criminal code and due process and fair treatment are accomplished by the jury trial requirement.

We said in International Minerals and Chemical Corp. v. Local 177, United Stone and Allied Products Workers, 74 N.M. 195, 392 P.2d 343 (1964), that wilful disobedience of a court's order is punishable by traditional criminal proceedings, referred to as quasi-criminal. The rights of the accused must be preserved and safeguarded. International involved the rights of the contemner not to testify against himself and that he is presumed innocent until found guilty. These are basic constitutional rights that would be protected in a jury trial.

However, the United States Supreme Court stated in Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968), that "[c]riminal contempt is a crime in the ordinary sense; it is a violation of the law...." The Court went on to say "[d]ue process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense explanation." Id. at 205, 88 S.Ct. at 1484 (quoting Cooke v. U.S., 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925)) (emphasis added). In Bloom a contemner was found guilty in a bench trial and sentenced to twenty-four months, but the Supreme Court reversed, stating the contemner was entitled to a jury trial.

State v. New Mexican Printing Co., 25 N.M. 102, 177 P.751 (1918) stated that the constructive or indirect contempt involved was a criminal proceeding governed by the rules of criminal law. However, that case is distinguishable from the instant case in that it involved an indirect contempt.

Contempt committed in open court may be punished summarily. In re Cherryhomes, 103 N.M. 771, 714 P.2d 188 (Ct.App.1985), cert. denied, 103 N.M. 740, 713 P.2d 566 (1986); State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct.App.1980). Defendants' contempts were committed in open court and on record. The trial judge gave the state the option of summary punishment of six months or a trial by jury. Thus, the defendants' rights were protected by being given a jury trial.

Defendants cite In re Stout, 102 N.M. 159, 692 P.2d 545 (Ct.App.1984), which states that the rules of criminal procedure apply to a criminal contempt hearing (i.e., the jury trial itself). Stout requires proof beyond a reasonable doubt for guilt in criminal contempt. Stout cites Lindsey v. Martinez, 90 N.M. 737, 568 P.2d 263 (Ct.App.1977) which also states that the hearing and sentence were governed by the rules of criminal procedure. Again, this applies to the rules of criminal procedure used within the jury trial itself.

Defendants argue that the New Mexico Constitution in art. II, Section 14, does allow one exception to the preliminary hearing requirement which is for military when in actual service in time of war or public danger. They reason that since the Constitution states an exception, all other exceptions are excluded. However,...