Tipton v. City of Lakewood

• Decision Date: 04 June 1979
• Docket Number: No. C-1746,C-1746
• Citation: Tipton v. City of Lakewood, 595 P.2d 689, 198 Colo. 18 (Colo. 1979)
• Parties: Michael E. TIPTON, Petitioner, v. The CITY OF LAKEWOOD By and On Behalf of the People of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 689

595 P.2d 689

198 Colo. 18

Michael E. TIPTON, Petitioner, v. The CITY OF LAKEWOOD By and On Behalf of the People of the State of Colorado, Respondent.

No. C-1746.

Supreme Court of Colorado, En Banc.

June 4, 1979.

Robert E. Warren, Jr., City Atty., William J. Brady, Deputy City Atty., Lakewood, for respondent.

Michael E. Tipton, pro se.

ROVIRA, Justice.

Michael Tipton (petitioner) petitioned this court to review his conviction for contempt of court on the basis that his refusal to answer certain questions posed by the Municipal Court of the City of Lakewood was founded on the proper exercise of his rights under the Fifth Amendment. The district court affirmed. We agree with the petitioner and reverse his conviction.

The petitioner appeared in municipal court on February 27, 1978, pursuant to a subpoena issued by that court. He appeared in his capacity as father of a juvenile who was charged with a traffic offense. The municipal code provided that the parent or guardian of a juvenile so charged must appear with the minor in court. The petitioner had failed to appear on three prior occasions. However, he appeared on the date in issue as required, but his son was not present. The court questioned the petitioner regarding his son's absence, and the petitioner responded that the extent of his knowledge was that he had received the subpoena to appear. He expressly refused to answer any questions concerning why his son was not present in court, whether his son had told him that he had received a speeding ticket and why he had not appeared in court on previous occasions.

The petitioner expressed his concern with possible prosecution, requested the court to read him his rights, asked the court whether he had the right to remain silent, and asked for a grant of immunity from subsequent prosecution. The court did not respond to these concerns, but persisted in its attempt to exact an answer from the petitioner concerning the whereabouts of his son. The petitioner maintained his right to refuse to answer, and the court did not inquire further into the petitioner's purpose for remaining silent. Rather, the court found the petitioner in contempt and sentenced him to ten days in jail.

A municipal court has the authority to find a witness or litigant in contempt of court. Section 13-10-112, C.R.S.1973. Thrap v. People, 192 Colo. 341, 558 P.2d 576 (1977). In order to find the petitioner in contempt in this case, the court had to establish that: (1) the witness refused to answer the questions of the court; (2) the refusal was improper; (3) the witness was ordered to answer the questions; and (4) the witness continued his refusal to respond. Smaldone v. People, 158 Colo. 16, 404 P.2d 276 (1965). The focus in the case Sub judice is upon the second factor: the trial court's determination that the contemnor's refusal to answer was unjustified.

The determination whether or not certain conduct constitutes contempt is within the trial court's sound discretion, and it is not reviewable on appeal absent an abuse of discretion. Stovall v. Crosby, 171 Colo. 70, 464 P.2d 868 (1970). However, the invocation of the court's contempt power is an abuse of discretion if it punishes the valid exercise of a constitutional right. See Thrap, supra.

The Fifth Amendment can be invoked by anyone whose statements could incriminate him, either by directly admitting the commission of illegal acts or by relating information which would "furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The witness need not use a ritualistic formula to invoke the protections of the Fifth Amendment. A lay witness is not expected to have the constitutional cognizance of an attorney, and his claim may be phrased imprecisely so long as it apprises the court that he is invoking his Fifth Amendment rights. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955).

The privilege can be claimed regardless of the apparently innocuous nature of the question. Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). As such, the burden lies with him to assert and establish the propriety of the privilege. Garner, supra; Hoffman, supra.

The decision whether the privilege is properly invoked is for the trial court, Hoffman, supra, but the court must either accept the claim or inquire further into it in order to determine if there is a danger of self-incrimination. Quinn, supra. It cannot simply dismiss the privilege without discussion. Id. It is axiomatic that the witness must have the opportunity to present the grounds on which he feels his exercise of the Fifth Amendment is properly based. Of course, he need not reveal the essence of the testimony which is protected, but must only raise the possibility that...