Vizcaino v. Commonwealth

• Decision Date: 21 May 2012
• Docket Number: SJC–10939.
• Citation: 967 N.E.2d 1109,462 Mass. 266
• Parties: Admilson VIZCAINO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 266

967 N.E.2d 1109

Admilson VIZCAINO

v.COMMONWEALTH.

SJC–10939.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 9, 2012.

Decided May 21, 2012.

Jonathan Shapiro, Boston (John Cushman with him) for the defendant.

Joseph M. Ditkoff, Assistant District Attorney (Mark A. Hallal & Nicholas J. Walsh, Assistant District Attorneys, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

Rule 43 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 919 (1979), narrowly defines the circumstances in which a judge may summarily punish the offense of criminal contempt of court. Summary punishment may not be imposed, for instance, if the punishment exceeds three months' imprisonment or a fine of $500. Id. Where summary contempt is unavailable, the contempt must be referred for prosecution by complaint or indictment pursuant to Mass. R.Crim. P. 44, 378 Mass. 920 (1979), and the defendant is entitled to a trial by jury. See Commonwealth v. Eresian, 389 Mass. 165, 170, 449 N.E.2d 354 (1983).

Admilson Vizcaino (defendant) was ordered to testify at a murder trial, having been granted immunity from prosecution. On May 4, 2010, and again on May 12, the defendant appeared at the trial but refused to provide testimony. On both occasions, the judge held him in civil contempt. On the second occasion, the judge stated that in addition to civil contempt, “[I]t is my judgment, and I find that [the defendant] has committed a summary contempt.” The judge did not enter a judgment of criminal contempt on the court's docket, however, and did not sentence the defendant for criminal contempt.

On May 28, with the murder trial over, the defendant was returned to court, and finding that his refusal to testify merited punishment in excess of three months, the judge referred the matter for prosecution pursuant to rule 44. The defendant subsequently was indicted for nonsummary criminal contempt. The defendant moved to dismiss the indictment on the ground of double jeopardy, claiming that at the May 12 proceeding he already had been adjudged in summary contempt, thus barring his subsequent prosecution for nonsummary contempt. A new judge was assigned to the case. Mass. R.Crim. P. 44(c). The judge denied the motion on the ground that the defendant had not been adjudged in summary contempt on May 12. The defendant petitioned a single justice of this court for relief pursuant to G.L. c. 211, § 3, see Neverson v. Commonwealth, 406 Mass. 174, 175–176, 546 N.E.2d 876 (1989), and the single justice reserved and reported the case without decision to the full court. We now hold that, because the defendant was not convicted of summary contempt on May 12, jeopardy, if it applied, never terminated. On remand to the county court, the petition for relief is to be denied.

1. Background. We begin by recounting the proceedings below. The defendant first came to court in this matter as an accused in a murder. On April 18, 2008, the defendant and four others—Paul Goode, Markeese Mitchell, Pedro Ortiz, and Terrance Pabon—were indicted for the murder of Terrance Jacobs in 2007. At the time, the defendant was sixteen years old. It was soon discovered that the defendant had been an eyewitness but not a participant in the crime, and on January 13, 2009, the murder charge against him was nol prossed and he was discharged. Goode, Mitchell, Ortiz, and Pabon remained as defendants.

On March 12, 2010, shortly before the trial was to begin, the defendant was subpoenaed to testify. The defendant indicated, through counsel, that he would refuse to testify, invoking his privilege against self-incrimination under the State and Federal Constitutions. The trial began, and about one week later, on April 14, 2010, the judge held a hearing regarding the defendant's testimony. At the conclusion of the hearing the judge determined that the defendant had validly invoked his privilege against self-incrimination.

The Commonwealth petitioned for an order of immunity. The judge assented and, on April 27, 2010, issued an order granting full transactional immunity to the defendant and ordering him to provide testimony at the trial.

The defendant was called as a witness on May 4, 2010. Defense counsel informed the judge that the defendant was unwilling to testify, despite the grant of immunity and order to provide testimony. The defendant “believe[d] that testifying would present a risk to his safety and the safety of his family.” The defendant was sworn, took the stand, and refused to testify under oath. The judge engaged the defendant in a colloquy, wherein the defendant acknowledged that he was now legally required to testify but nonetheless persisted in his refusal.

The judge signaled her intention to hold the defendant in civil contempt.¹ Defense counsel objected, arguing that civil contempt was futile, as the defendant would not change his mind. Defense counsel argued that the judge should instead treat the offense as a nonsummary criminal contempt pursuant to rule 44. Remarking that “being in custody sometimes has effects,” the judge rejected defense counsel's argument and ordered that the defendant be taken into custody for civil contempt. The same day, the judge entered an order of civil contempt committing the defendant to a house of correction for thirty days or until the end of the trial.

The defendant next appeared in court on May 12, 2010, during the fifth week of the trial.² Defense counsel again indicated that the defendant would refuse to testify. The judge inquired of the defendant and he again refused. ³ There followed a lengthy discussion among the judge, the prosecutors, and defense counsel on the question how long the defendant could be held for civil contempt. The judge acknowledged the defendant's concern for his family's safety and his own personal safety, but stated that “as a matter of the public safety it's important that an order to testify be enforced.” The judge therefore announced that she would enter a judgment of civil contempt. The judge then continued:

“Now, I would also say with respect to [r]ule 43 that it is my judgment, and I find that [the defendant] has committed a summary contempt through the same conduct just referred to; that is, that in the presence of Court [the defendant] has twice refused to testify in this trial, [which] is contemptuous conduct that warrants punishment as well as civil coercion. It would be my intention to at least give consideration to a sentence of longer than three months. I would certainly hear from both sides as to what the appropriate sentence would be. It's not time to have that hearing yet. If I come to the conclusion after hearing both sides [that] I would indeed sentence to more than three months then I would, at that time, refer the matter for prosecution under [r]ule 44.”

The judge thereafter entered a judgment of civil contempt committing the defendant to a house of correction for one year or less, or until he complied with the court order. The judge did not enter a judgment of criminal contempt at any point after the May 12 proceeding.

The trial concluded on May 24, 2010. Goode, Mitchell, Ortiz, and Pabon were found guilty of murder in the second degree.

The defendant next appeared before the judge on May 28, 2010. The judge stated, “So, as I understand it, the status of this matter is [the defendant] has been held on an order of civil contempt for one year or until such time as he would testify. He has not testified, but the trial is now over, and therefore, he has no opportunity to testify.” She solicited arguments as to an appropriate sentence. The prosecutor argued that a sentence of more than three months imprisonment was appropriate, because of the gravity of the crime and the importance of the defendant's eyewitness testimony. Defense counsel stressed the youth of the defendant, his concern for his safety and his family's safety, and the time he had already been incarcerated before the murder charge was nol prossed. At the conclusion of the hearing, the judge decided that she would impose a sentence longer than three months; the indictment at issue followed.

2. Statutory background. Although the power to punish contumacious conduct is inherent in the courts, Sussman v. Commonwealth, 374 Mass. 692, 695, 374 N.E.2d 1195 (1978), citing Illinois v. Allen, 397 U.S. 337, 343–344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), rule 43 narrowly limits the availability of summary contempt.⁴ Summary contempt refers to criminal contempt punished by the judge summarily—that is, without due process protections such as formal notice, a hearing, and “all that goes with a conventional court trial.” Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717 (1952). See Mass. R.Crim. P. 43(a). The justification for dispensing with due process protections is that the judge has personally witnessed the contempt, and swift punishment is necessary to maintain order in the court room. Sacher v. United States, supra at 8–9, 72 S.Ct. 451. Because due process protections are lost, however, “[s]ummary punishment always, and rightly, is regarded with disfavor.” Commonwealth v. Corsetti, 387 Mass. 1, 7, 438 N.E.2d 805 (1982), quoting Sacher v. United States, supra at 8, 72 S.Ct. 451. Accordingly, rule 43 is narrowly written, and narrowly construed. Commonwealth v. Corsetti, supra.

The requirements of rule 43 are based in part on Fed.R.Crim.P. 42 (Federal rule), but depart from that rule in several important respects. See Reporters' Notes to Mass. R.Crim. P. 43, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1735 (LexisNexis 2011–2012) (Reporters' Notes to rule 43). Generally speaking, rule 43 provides more due process protection to contemnors than the Federal rule. See, e.g., id. (“Subdivision [a][2] goes beyond the minimum constitutional requirements that must be afforded to contemnors”).

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