Yoho, In re

• Decision Date: 25 March 1983
• Docket Number: No. 15632,15632
• Citation: 301 S.E.2d 581,171 W.Va. 625
• Court: West Virginia Supreme Court
• Parties: In re Robert M. YOHO.

Page 581

301 S.E.2d 581

171 W.Va. 625

In re Robert M. YOHO.

No. 15632.

Supreme Court of Appeals of

West Virginia.

March 25, 1983.

Syllabus by the Court

1. Fear of harm to one's safety cannot justify a refusal to testify before a grand jury.

2. An unjustified refusal to testify with immunity before a grand jury, after being ordered by a court to do so, and a face-to-face reiteration to that court of the refusal, is a direct contempt.

3. An unjustified refusal to testify before a grand jury may be either a civil or criminal contempt or both.

4. A summary civil contempt proceeding for refusal to testify before a grand jury after receiving immunity and being ordered to do so does not violate due process. Defendant must be informed about the contempt, is entitled to be present with counsel and be heard, a stenographic record should be made, and the court must base its decision on competent evidence.

5. A civil contempt sentence for a grand jury witness' refusal to testify must cease when the witness purges himself by testifying or at the end of the grand jury's term.

Gary L. Rymer, Middlebourne, for appellant.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

HARSHBARGER, Justice:

When Robert "Buddy" Yoho was indicted for two drug violations, he bargained to plead guilty to a marijuana offense in exchange for a state recommendation that he be incarcerated in a youth correctional center and that an LSD charge be nolle prossed. During plea negotiations the state offered to nolle both if he would voluntarily testify about his drug sources, but he refused. He was sentenced for his marijuana offense in accord with the plea agreement, and at his sentencing he received a subpoena to testify before a grand jury.

Yoho appeared before the Wetzel County Grand Jury, but exercised his Fifth Amendment privilege against self-incrimination. The prosecuting attorney brought him to the circuit judge who granted him immunity from prosecution. W.Va.Code, 57-5-2. ¹ Yoho reiterated his refusal to testify: he feared that he and his family would be harmed. He was warned that his refusal was contempt of court and could result in his incarceration. He acknowledged this, but maintained his refusal. The court sentenced him "to confinement in the Wetzel County Jail until such time as he may elect to testify before the Grand Jury." A stay was granted pending this appeal.

I.

Yoho refused to testify because he feared for his life and the lives and safety of his family. Fear of harm to one's safety cannot justify a refusal to testify before a grand jury. If fear of reprisal justified such refusal criminals would be encouraged to silence potential witnesses by threats and violence, and the truth-finding process would be corrupted.

In 1961 the United States Supreme Court rejected a fear-of-reprisal refusal to testify. Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028. Accord, In re Farrell, 611 F.2d 923 (1st Cir.1979); United States v. Doe, 478 F.2d 194 (1st Cir.1973); United States v. Dien, 598 F.2d 743 (2d Cir.1979); In re Kilgo, 484 F.2d 1215 (4th Cir.1973); In re Grand Jury Proceedings, 605 F.2d 750 (5th Cir.1979); In re Grand Jury Proceedings, 509 F.2d 1349 (5th Cir.1975); United States v. Damiano, 579 F.2d 1001 (6th Cir.1978); In re Long Visitor, 523 F.2d 443, 447-8 (8th Cir.1975); LaTona v. United States, 449 F.2d 121, 122 (8th Cir.1971); Dupuy v. United States, 518 F.2d 1295 (9th Cir.1975).

II.

Refusal to testify to a grand jury after a grant of immunity and a court order to do so constitutes contempt of court. 17 Am.Jur.2d, Contempt § 30; 38 C.J.S., Grand Juries, § 41(d)(2). There are four kinds of contempt: direct-criminal, indirect-criminal, direct-civil, and indirect-civil. State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812, 817, fn. 9 (1981).

The United States Supreme Court has decided that refusal to testify before a grand jury, even if the refusal is repeated to a judge, is not a direct contempt ² that warrants summary disposition. Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). Harris was criminally prosecuted for contempt, and the court discussed the applicability of Federal Criminal Procedure Rule 42. The court stated:

Cases of the kind involved here are foreign to Rule 42(a). The real contempt, if such there was, was contempt before the grand jury--the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify "committed in the actual presence of the court" for the purposes of Rule 42(a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Id., 382 U.S., at 164-165, 86 S.Ct., at 354, 15 L.Ed.2d, at 242.

In United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), the court dealt with criminal contempt proceedings against a witness who refused to testify at a trial, and sanctioned use of the Rule 42(a) summary contempt power against an immunized witness who still refused to testify. Harris was distinguished: its rule proscribing summary contempt proceedings for recalcitrant grand jury witnesses remains. The Wilson court emphasized the differences between grand jury investigations and trials.

Several courts have agreed with the Supreme Court and determined that grand jury witnesses' refusals to testify were indirect contempts, not "in the presence of the court" and therefore, summary disposition was erroneous. Pendley v. State, 392 So.2d 321 (Fla.Dist.Ct.App.1980), reh. denied; State v. Roll, 267 Md. 714, 298 A.2d 867, 69 A.L.R.3d 483 (1973); Ex Parte Hedden, 29 Nev. 352, 90 P. 737 (1907). See Annot., Refusal to Answer Questions Before State Grand Jury as Direct Contempt of Court, 69 A.L.R.3d 501 (1976).

Other courts have held that these are direct contempts. Ex parte Morris, 252 Ala. 551, 42 So.2d 17 (1949); People v. Lucero, 196 Colo. 276, 584 P.2d 1208 (1978); Smaldone v. People, 158 Colo. 7, 12, 405 P.2d 208, 211 (1965), cert. denied, 382 U.S. 1012, 86 S.Ct. 616, 15 L.Ed.2d 527 (1966); Re Grand Jury, 17 Hawaii 336 (1906); People v. Burkert, 7 Ill.2d 506, 131 N.E.2d 495 (1955); Young v. Knight, 329 S.W.2d 195, 77 A.L.R.2d 994 (Ky.1959); State v. Rodrigues, 219 La. 217, 52 So.2d 756 (1951); Gendron v. Burnham, 146 Me. 387, 82 A.2d 773, 38 A.L.R.2d 210 (1951); In re Boyd, 36 N.J. 285, 176 A.2d 793 (1962); State v. Granchay, 1 Ohio App.2d 307, 30 Ohio Ops.2d 310, 204 N.E.2d 562 (1964); Padgett v. Graham, Okl.Cr. 516 P.2d 1375 (1973); Re Petition of Start, 186 Pa.Super. 509, 142 A.2d 449 (1958); In Matter of Salvesen, 78 Wash.2d 41, 469 P.2d 898 (1970).

We believe an unjustified refusal to testify with immunity before a grand jury, after being ordered by a court to do so, and a face-to-face reiteration to that court of the refusal, is a direct contempt. This contempt could not even occur except "in the presence of the court," which is acting to aid, as is a grand jury, in finding truth.

Is this civil or criminal contempt? A refusal to testify before a grand jury may be either, or both. ³ The federal court system has a Recalcitrant Witness Statute, 28 U.S.C.A. § 1826, defining procedures for civil contempt sanctions against grand jury witnesses who refuse to testify, ⁴ and Federal Rule of Criminal Procedure 42 for criminal contempt sanctions. As we noted earlier, Harris v. United States makes procedures in subsection (b) of Rule 42, requiring explicit procedural guarantees, and not subsection (a) permitting summary disposition, ⁵ applicable to contumacious grand jury witnesses.

In West Virginia, criminal contempts are governed by both W.Va. Rules of Criminal Procedure, Rule 42 ⁶ and Code, 61-5-26, ⁷ and civil contempts by W.Va.Code, 57-5-6. ⁸

1. Whether a contempt is classified as civil or criminal does not depend upon the act constituting such contempt because such act may provide the basis for either a civil or criminal contempt action. Instead, whether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate. ⁹

2. Where the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil. ¹⁰

3. The appropriate sanction in a civil contempt case is an order that incarcerates a contemner for an indefinite term and that also specifies a reasonable manner in which the contempt may be purged thereby securing the immediate release of the contemner, or an order requiring the payment of a fine in the nature of compensation or damages to the party aggrieved by the failure of the contemner to comply with the order. Syllabus Points 1, 2 and 3, State ex rel. Robinson v. Michael, supra.

This trial court ordered that Yoho be incarcerated until he testified. He could purge himself of this contempt and avoid incarceration. He was being coerced, not punished. The court correctly treated Yoho's refusal to be a civil contempt. ¹¹

Yoho complains that he was denied due process in his contempt adjudication.

What due process standards are required for direct civil contempts? We stated in Chesapeake & Ohio System Federation, Brotherhood of Maintenance of Way Employees v. Hash, 170 W.Va. 294, 294 S.E.2d 96, 101 (1982):

[An] alleged contemnor is subject to incarceration or fine if he is found guilty of the contempt and is therefore entitled to certain fundamental procedural safeguards to insure that he is not deprived of his liberty or property without due process of law. The...