Ex parte Bryan C. RAWLS.
(In re Teresa Lynn Rawls
v.
Bryan C. Rawls).
Supreme Court of Alabama.
*376 Tanya Hallford Roseony, Foley; and William L. Pfeiffer, Jr., Foley, for petitioner.
Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for respondent.
BOLIN, Justice.
Bryan C. Rawls petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to grant his motion to stay his divorce proceedings pending a resolution of criminal charges filed against him by his wife Teresa Lynn Rawls; Bryan argues that allowing the divorce proceedings to continue threatens his Fifth Amendment right against self-incrimination in the criminal proceedings.
Facts and Procedural History
On August 31, 2004, Teresa sued Bryan for divorce. In her complaint, she alleged that Bryan had been physically and verbally abusive to her on several occasions during their marriage. Also, on August 31, 2004, Teresa filed a motion for a temporary restraining order; the motion also sought to retain possession of the marital home, and stated:
"During the course of this marriage [Bryan] has been physically abusive to [Teresa] to-wit: leading to a conviction in the City of Orange Beach for domestic violence against him and he has also otherwise exhibited a pattern of being physically and mentally abusive to [Teresa].
"[Bryan] is a habitual drunk and as such has mood swings of violence against [Teresa]. . . . [I]t is necessary that [Bryan] be restrained by this Court from hurting, harassing, threatening, intimidating, contacting in person, contacting by telephone, or having any contact *377 with [Teresa] until the final hearing before this Court."
(Teresa's reply brief, ex. 2.)
On October 27, 2004, Bryan was arrested after crashing his truck into the garage attached to the marital home, causing damage to the marital home and to Teresa's automobile, which was parked in the garage. (Teresa's brief at 1.) On that same day, Teresa filed a petition for protection from abuse against Bryan based on that incident and what she alleged were his continual stalking and harassment. The trial court entered a protective order, and on November 3, 2004, Bryan was arrested for violating the protective order after he had made several telephone calls to Teresa.
On December 16, 2004, Bryan was indicted for criminal mischief in the first degree, a violation of § 13A-7-21, Ala. Code 1975; criminal trespass in the first degree, a violation of § 13A-7-2, Ala.Code 1975; and stalking, a violation of § 13A-6-90, Ala.Code 1975. The criminal-mischief and criminal trespass charges stem from the October 27, 2004, incident; the stalking charge is apparently based on more than just this one incident. He was arrested for these charges on April 8, 2005.
The trial in the parties' divorce proceeding was eventually scheduled for April 15, 2005. On April 14, 2005,[1] Bryan filed a motion to stay the divorce proceedings asserting that a civil trial would violate his privilege against self-incrimination under the Fifth Amendment of the United States Constitution and Article I, § 6, Ala. Const. 1901, in any trial on the criminal charges. The trial judge "denied the request for a stay, holding that it would be `unconscionable' to stay the divorce proceedings until the criminal cases could be resolved." (Bryan's brief at 4.)
Bryan filed a petition for a writ of mandamus with the Court of Civil Appeals; that court denied his petition without an opinion. Ex parte Rawls (No. 2040634, June 21, 2005),
Standard of Review
"A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank,893 So.2d 1116 , 1119 (Ala.2004). A writ of mandamus is `appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc.,823 So.2d 1270 , 1272 (Ala.2001)."
Ex parte Antonucci,
Discussion
Bryan argues that his Fifth Amendment right against self-incrimination is threatened if the civil divorce proceeding goes forward, and that, therefore, the trial judge exceeded her discretion when she denied his motion to stay the civil proceedings. The Fifth Amendment to the United States Constitution provides, in pertinent *378 part, that a person shall not "be compelled in any criminal case to be a witness against himself."[2] This Court has held "that despite the difference in language the Alabama privilege against self-incrimination offers the same guarantee as that contained in the Federal Constitution." Hill v. State,
This Court stated in Ex parte Baugh,
"Under the Fifth Amendment to the Constitution of the United States, `no person . . . shall be compelled in any criminal case to be a witness against himself.' The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States,341 U.S. 479 ,71 S.Ct. 814 ,95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan,378 U.S. 1 ,84 S.Ct. 1489 ,12 L.Ed.2d 653 (1964). `The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection.' Wehling v. Columbia Broadcasting System,608 F.2d 1084 (5th Cir. 1979), citing with approval Lefkowitz v. Cunningham,431 U.S. 801 , 9[7] S.Ct. 2132,53 L.Ed.2d 1 (1977); McCarthy v. Arndstein,266 U.S. 34 ,45 S.Ct. 16 , 69 L.Ed.[] 158 (1924)."
The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court's discretion.
"While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when `justice requires' that it do so `to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense.' Rule 26(c), Ala. R. Civ. P."
Ex parte Coastal Training Inst.,
In the present case, three issues must be addressed to determine if a stay in the civil divorce proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems,
I. Whether the civil proceeding and the criminal proceeding are parallel.
In Ex parte Weems, this Court held that the trial judge did not err in denying the motion to stay discovery in a civil action because the civil and criminal actions were not parallel proceedings. In Weems, the ex-wife hired a private investigator to determine if her telephone line had been tapped after she was awarded the marital home in the divorce settlement. While the investigator was on the property, the ex-husband came onto the property and shot the investigator in the arm; the investigator *379 then shot the ex-husband. The ex-husband was indicted for assault with intent to murder as a result of shooting the investigator. The ex-husband then sued his ex-wife, alleging negligent hiring and supervision of the private investigator. The trial court refused to grant the ex-husband a stay in his civil proceeding because it found that the criminal action involved a determination as to whether the ex-husband shot the investigator with intent to murder, while the civil action involved a determination as to whether the ex-wife was negligent in her hiring and supervising of the investigator. Because these were not parallel proceedings involving the same act, the Weems Court denied the ex-husband's petition for a writ of mandamus.
This Court has held that the moving party is entitled to the requested stay in the civil proceedings when the civil case and the criminal case have been parallel proceedings. In Ex parte Oliver,
"In light of the return of the indictment against Oliver and the need to guarantee Oliver's Fifth Amendment privilege, our caselaw, see Ex parte White,551 So.2d 923 (Ala.1989), and its progeny, requires that a stay of the civil proceedings be issued to guarantee Oliver's Fifth Amendment privilege. Oliver, however, has not presented this change in circumstance the return of the indictment, which creates an imperative duty for the trial court to stay the civil proceedings to the trial court. This Court will not direct a court to take some action it has not previously refused to take."
In McCarthy v. Arndstein,
"The government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant."
The Fifth Amendment privilege
"not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution *380 but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."
Lefkowitz v. Turley,
The party requesting a stay of the civil proceeding does not actually have to be indicted. Ex parte Coastal Training,
Bryan is charged here with criminal mischief, criminal trespass, and stalking. The criminal-mischief and criminal-trespass charges stem from the incident on October 27, 2004, when he drove his truck into the garage and severely damaged the marital home and Teresa's car. This incident occurred after Teresa filed for divorce.
Teresa's attorney stated at the hearing on Bryan's motion to stay the divorce proceedings that if those proceedings went forward he would not ask Bryan any questions concerning incidents that occurred after Teresa had filed for divorce. Therefore, concerning the charges of criminal mischief and criminal trespass, there would be no overlap in the criminal and civil cases. The civil divorce proceeding and the criminal proceedings resulting from the criminal-mischief and criminal-trespass charges are thus not parallel proceedings.
However, the stalking charge presents a different situation. Section 13A-6-90, Ala.Code 1975, provides: "A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking." A prosecutor must thus prove that a defendant repeatedly followed or harassed the victim to sustain a conviction for stalking.
Bryan argues that because, in order to prove guilt of stalking, the State must prove repeated actions, the criminal proceeding involving the stalking charge and the divorce proceeding are parallel proceedings. This Court agrees. To prove the stalking charge, the prosecution will possibly need to avail itself of evidence of alleged incidents and alleged abuse by Bryan that occurred before Teresa filed for divorce. Because that criminal proceeding and the divorce proceeding have some overlapping acts, they must be considered parallel proceedings. Therefore, Bryan's motion for a stay cannot be denied on the grounds that these are not parallel proceedings.
The dissent argues that the criminal proceeding involving the stalking charge and the divorce proceeding may or may not be parallel. However, a divorce action *381 in which there are allegations of abuse, harassment, threats, and intimidation and a felony stalking charge could not be more parallel. As already mentioned, to prove Bryan was guilty of stalking Teresa, the State must prove that he was "intentionally and repeatedly follow[ing] or harass[ing]" her.
Although the State may be planning to introduce as evidence the event that occurred on October 27, 2004, to help prove the stalking charge, that single instance will not be enough to prove repeated actions by Bryan. The repeated actions the State will need to prove its stalking case are those that occurred throughout the marriage, the occasions of "physical and verbal abus[e]" on which Teresa based her complaint for divorce. (Teresa's brief, ex. B.)
Even if, as the dissent hypothesizes, the State planned to use only events occurring after Teresa filed for divorce to prove its stalking case, there is nothing barring the State, after the civil proceedings have begun, from using events that occurred before Teresa filed for divorce to prove that charge. Therefore, because we cannot base our decision on what the State may plan to do hypothetically, we conclude that, based on the evidence needed to prove the stalking charge, these are parallel proceedings.
II. Whether Bryan's Fifth Amendment right against self-incrimination is threatened by the civil proceedings.
The second issue is whether Bryan's Fifth Amendment right against self-incrimination is threatened by the civil proceeding. In Ex parte Windom, supra, this Court held that the moving party's Fifth Amendment right was not threatened by a civil proceeding; therefore, the Court denied his petition for a writ of mandamus. In Windom, Windom, the moving party, was not the criminal defendant. It was Windom, however, who made the motion to stay the civil case pending the outcome of the criminal trial against the defendant. The trial court refused to grant Windom's motion for a stay. This Court held that Windom's Fifth Amendment right against self-incrimination was not implicated by these proceedings and denied his petition for a writ of mandamus.
To sustain a moving party's Fifth Amendment right against self-incrimination, "`it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'" Baugh,
This Court has found a moving party's Fifth Amendment right against self-incrimination threatened by the discovery process in a civil proceeding. In Ex parte Coastal Training, supra, this Court discussed the differing nature of discovery in civil and criminal proceedings. The scope of civil discovery is broad, requiring almost complete disclosure; criminal discovery, on the other hand, is much more restricted. Allowing civil discovery to proceed while a criminal case is pending may allow the prosecution in the criminal case to use the broad scope of civil discovery to its advantage. Coastal Training.
This Court has also found that a moving party's Fifth Amendment right against self-incrimination is threatened when a court requires the party to participate in a deposition or a trial, allowing the party to remain quiet only for specific questions that may incriminate him or her. In Coastal Training, this Court discussed the dangers of allowing a defendant to remain *382 quiet only for specific questions, including the possibility of a criminal investigator's being "planted" at the deposition in the civil proceeding, the possibility that the defendant could reveal the weak points of the case to a prosecutor by what he or she refuses to answer, and the opportunity for a prosecutor to conduct a point-by-point review of the case to find a "`link in the chain of evidence'" that would lead to the defendant's conviction.
Bryan argues that "the allegations of the criminal case are so interrelated with this civil case that [Bryan's] testimony will be akin to walking through a field of land mineseach question and answer a potential risk for use against him at a criminal proceeding." (Bryan's brief at 11.) Bryan argues that because of the overlap in the claims of abuse before the filing of the divorce complaint and the element of a pattern of threats or abuse the prosecutor must prove to prove the stalking charge, his Fifth Amendment rights are threatened by requiring him to continue with the divorce proceeding. We agree that because of the stalking charge (see Part I of this opinion), the dangers discussed in Coastal Training exist here if Bryan is required to continue with the civil divorce proceeding.
The dissent argues that because discovery in the divorce action is completed and Bryan has not had to answer an incriminating question,[3] Bryan is unable to argue that he will have to incriminate himself at the trial in the divorce action. This argument suggests that at the trial of the divorce action nothing will be asked of Bryan that was not asked during the discovery phase of the divorce proceeding. This, however, is unlikely. Thus, even if discovery has been completed and even if Bryan has not yet been asked an incriminating question, because of the overlap in these proceedings, he will likely be asked at trial questions that would cause him to incriminate himself. His Fifth Amendment right is clearly threatened.
The dissent also argues that the language previously quoted from Coastal Training,
"`The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in a criminal case.' Afro-Lecon, Inc. v. United States,820 F.2d 1198 , 1203 (Fed.Cir.1987). In Afro-Lecon, the court pointed out some of the dangers presented by this situation:
"`Such unconstitutional uses may begin with the surreptitious planting of criminal investigators in civil depositions . . . and end with passive abuses, such as when the civil party, who asserts *383 fifth amendment rights, is compelled to refuse to answer questions individually, revealing his weak points to the criminal prosecutor. This point-by-point review of the civil case may lead to a "link in the chain of evidence" that unconstitutionally contributes to the defendant's conviction. Hoffman v. United States,341 U.S. 479 , 486 [71 S.Ct. 814 , 818,95 L.Ed. 1118 ] (1951).'"
It may be "unclear" to the author of the dissent why this Court in Coastal Training adopted the language from Afro-Lecon, Inc. v. United States,
In Ex parte Ebbers, supra, this Court created an exhaustive list of 13 principles that have emerged from Alabama caselaw concerning the stay of a civil proceeding pending the outcome of a criminal case. One of those principles (no. 11) states:
"A civil party's Fifth Amendment right against self-incrimination cannot be adequately protected by requiring him simply to assert his right to remain silent when asked specific questions during a civil deposition; such an approach construes the Fifth Amendment too narrowly. The dangers in such an approach have been identified as including the possibility of a criminal investigator's being `planted' at the deposition, the revealing by the deponent of his weak points by his selection of which questions he refuses to answer, and the opportunity presented to a prosecutor of deriving, by a point-by-point review of the civil case, a `link in the chain of evidence' that would unconstitutionally contribute to the defendant's conviction in the criminal case."
Likewise, in Ex parte Williams,
Ironically, the dissent quotes Afro-Lecon, the case decided by the federal Court of Appeals, with which the dissent so strongly disagrees, in support of a proposition in its opinion.
The dissent also discusses the "compelled to refuse to answer" language from Afro-Lecon and simply discounts it as being contradictory in terms.
In addition, the dissent cites Baxter v. Palmigiano,
Further, the quotation in the dissent from Williams v. Florida,
"The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the Defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination."
If this Court were to deny Bryan's petition and require the civil divorce proceedings to continue, allowing Bryan to invoke his Fifth Amendment privilege and refuse to answer certain questions that he deems are incriminating, Bryan will be subjected to all of the dangers of self-incrimination that are discussed in the cases mentioned earlier. Therefore, it is the opinion of this Court that Bryan's Fifth Amendment right against self-incrimination in the criminal case against him is threatened by the civil action against him.
III. Whether the balancing test weighs in favor of Bryan.
The third issue is whether the balancing test of Ex parte Baugh,
This Court first used the balancing test in Ex parte Baugh. This Court, in deciding whether to grant Baugh's petition for a writ of mandamus applied the balancing test articulated in Afro-Lecon,
More recently, this Court in Ex parte Ebbers, supra, elaborated on that balancing test. In Ebbers, this Court undertook to catalogue a list of factors identified in federal cases as factors that might be considered in applying the balancing test. The factors included, but are not limited to:
"1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.
"2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.
"3. The extent to which the defendant's Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.
"4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.
"5. The interest of persons not parties to the civil litigation.
"6. The interest of the public in the pending civil and criminal litigation.
"7. The status of the criminal case, including whether the party moving for the stay has been indicted. . . .
"8. The timing of the motion to stay."
The parties in this case argued the applicability of some of the factors in Ebbers, and some of those factors are relevant to our analysis. Bryan argues that his Fifth Amendment right against self-incrimination outweighs Teresa's interest in finalizing their divorce (factor 1). In looking at this factor, the Court should consider the potential prejudice that may result to Teresa as a result of a stay in the divorce proceeding. According to decisions of this Court, the important aspect of this factor is whether Teresa's civil action against Bryan will be damaged by the stay; in other words, will her case against Bryan be weakened by the passage of time because of lost evidence or witnesses? See Ex parte Antonucci,
Teresa argues that she "is attempting to move on with her life after years of abuse. Allowing [Bryan] to stay the divorce would literally be adding insult to injury and allowing him to continue to abuse [Teresa] now with the legal system instead of his hands." (Teresa's brief at 12.) Although this Court acknowledges Teresa's difficult situation, her interest must be weighed against Bryan's Fifth Amendment right. Although Teresa has a strong interest in the completion of the divorce proceedings, *386 because there is no evidence indicating that her case will be at all prejudiced or damaged by the issuance of a stay, Bryan's Fifth Amendment right must prevail over her interest.
The parties also discussed the efficiency of judicial resources (factor 4). Ebbers,
"The [divorce] case has been continued from the original trial setting of November 9, 2004 to-date based on the actions of [Bryan]. (Exhibit `A'). This case has continued to occupy space on the divorce docket of the trial court and has encumbered judicial economy, wasted resources and continues to do so."
(Teresa's brief at 15.) Although the efficient use of judicial resources is an important factor, this Court in Ex parte White,
Finally, Teresa argues that "the timing of this Motion to Stay is merely reflective of the continuing abuse by [Bryan]. [Bryan] filed this Motion to Stay the day before his trial in an effort to delay and harass [Teresa] even further." (Teresa's brief at 15.) Teresa never argues that Bryan should be considered to have waived his Fifth Amendment right; she never argues, as the respondent did in Ex parte White, that Bryan did anything that might constitute a waiver. See Ex parte White,
The dissent attempts to paint this balancing test as weighing Teresa's interest in the finality of the divorce proceedings against Bryan's interest in the divorce proceeding. However, the balancing test actually weighs Bryan's Fifth Amendment protection against Teresa's interest in a quick resolution of the divorce proceeding. For the reasons stated, Bryan's Fifth Amendment right against self-incrimination outweighs the other factors to be considered in the balancing test, including any potential prejudice to Teresa. Therefore, because the divorce proceedings and the State's criminal proceeding based on the stalking charge are parallel proceedings that threaten Bryan's Fifth Amendment right, the trial court erred in denying his motion for a stay in the divorce proceedings.
It is important to note, however, that the "trial court is not precluded from subsequently entertaining a motion to dissolve the stay, if circumstances have changed in the interim in such a way as to render the stay no longer appropriate." Ebbers,
Conclusion
The civil divorce proceeding and the criminal proceeding based on the stalking charge are parallel proceedings, and Bryan's Fifth Amendment protection against self-incrimination in the criminal proceeding is threatened if the divorce proceeding is not stayed. Moreover, Bryan's Fifth Amendment protection outweighs Teresa's interest in a speedy divorce. Therefore, applying the standard of review appropriate in a mandamus proceeding, we believe the trial court exceeded its discretion in denying Bryan's request for a stay of the civil action pending resolution of the criminal charges against him; the petition is granted and the trial court is ordered to stay the civil divorce proceedings until the stalking charge against Bryan is adjudicated at the trial level.
PETITION GRANTED; WRIT ISSUED.
LYONS, HARWOOD, and PARKER, JJ., concur.
SEE, J., concurs in Parts I and II and concurs in the result as to Part III.
WOODALL, STUART, and SMITH, JJ., concur in the result.
NABERS, C.J., dissents.
SEE, Justice (concurring in Parts I and II and concurring in the result as to Part III).
I concur in the holding in the main opinion that the criminal and civil proceedings in this case are parallel proceedings and that the civil proceedings threaten Bryan Rawls's Fifth Amendment right against self-incrimination. I write separately to express my view on the balancing of interests that I believe is called for in cases such as this where the Fifth Amendment right is being asserted in the context of parallel civil and criminal proceedings.
The main opinion states: "For the reasons stated, Bryan's Fifth Amendment right against self-incrimination outweighs the other factors to be considered in the balancing test, including any potential prejudice to Teresa."
I agree with the dissent that if the test is whether Rawls's Fifth Amendment right against self-incrimination outweighs the prejudice to his wife that results from delaying the divorce proceeding, then to ask the question is to answer it. However, I do not agree with the dissent that the only interests to be considered are Rawls's interest in receiving "the greatest possible share of the marital estate" and Teresa's interest in "terminating an allegedly abusive marriage and moving on with her life." Rawls's Fifth Amendment right is threatened, and it is this threatnot his Fifth Amendment right against self-incrimination itself, but the threat to that *388 rightthat should be weighed in the balance.
The dissent states: "Because [Rawls] may refuse to answer, the fact that he may be asked a question the response to which could incriminate him presents no Fifth Amendment issue."
I believe that the threat to Rawls's Fifth Amendment right against self-incrimination and his interest in the outcome of the divorce proceeding, as well as Teresa's interest in the outcome of the divorce proceeding, are proper interests to be weighed in deciding whether the divorce proceeding should be stayed pending the resolution of the criminal charges against Rawls; however, I believe that Rawls's due-process rights to effectively defend himself in the criminal trial and both Rawls's and his wife's rights to effectively litigate the divorce proceeding ought also to be considered.
Although this Court has usually discussed the balancing involved in this type of case in terms of the Fifth Amendment, we have never limited the analysis to Fifth Amendment principles. For example, in Ex parte Baugh,
As a criminal defendant, Rawls is entitled to the protections of the limited discovery provided by the Alabama Rules of *389 Criminal Procedure.[5] This Court has consistently expressed concern that, in simultaneous proceedings, these protections could be undermined by misuse of the broad discovery afforded civil litigants, to the detriment of the criminal defendant.[6]
I concur with the holding that the trial court erred in denying Rawls's motion to stay the civil divorce proceeding until the completion of the criminal proceeding against him; however, because I would state the balancing test differently, I concur only in the result as to that portion of the main opinion.
NABERS, Chief Justice (dissenting).
I respectfully dissent. I assume, for the sake of argument, that the divorce case and the stalking prosecution are parallel proceedings.[7] Nevertheless, I would deny the petition.
"`The Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings. . . .'" Ex parte Baugh,
I.
The Fifth Amendment to the United States Constitution, made applicable here through the Fourteenth Amendment, provides that no one "shall be compelled in *390 any criminal case to be a witness against himself." In the context of a civil action, this language prohibits a trial court from requiring a witness to answer a potentially incriminating question. Similarly, a trial court may not compel discovery of potentially incriminating information.
The main opinion relies primarily on three cases to support its conclusion that Bryan has a clear legal right to a stay of the divorce action. Each of the three is distinguishable from this case because each involved a genuine risk of compelled self-incrimination. In contrast, Bryan has failed to show that participating in a trial in the divorce action will violate his Fifth Amendment right by requiring any incriminating discovery or testimony.
This Court first confronted the question whether to stay a parallel civil proceeding in Ex parte Baugh, supra. In Baugh, a plaintiff in a civil action, facing a possible grand-jury investigation, was held in contempt for refusing to answer incriminating questions in a deposition. This Court reversed the contempt conviction and held that the plaintiff was entitled to a protective order preventing the defendant in the civil action from obtaining incriminating information through discovery, curing any Fifth Amendment problem. However, the protective order also placed the defendant "in the posture of having to maintain a defense without necessary discovery."
In Ex parte Coastal Training Institute, supra, the defendants refused to answer potentially incriminating questions during a deposition. As it had in Baugh, the Court in Coastal Training Institute focused on the need to prevent the compelled discovery of potentially incriminating information:
"While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when `justice requires' that it do so `to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.' Rule 26(c), Ala. R. Civ. P."
"Under Rule 26(b), Ala. R. Civ. P., parties are entitled to `obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,' but under Rule 26(c) a party or other person from whom discovery is sought may obtain a protective order from the trial judge `for good cause shown.' (Emphasis supplied [in Ebbers].) These provisions vest broad power in the trial court to control the discovery process. Baugh, [Ex parte] White, [551 So.2d 923 (Ala. 1989),] and Coastal Training.
". . . A court has the discretion to stay civil proceedings, to postpone civil discovery, or to impose protective orders and conditions in the face of parallel criminal proceedings against one of the parties when the interests of justice seem to require. . . . "
These cases stand for the proposition that the Fifth Amendment and Rule 26(c), Ala. R. Civ. P., prohibit the trial court from compelling discovery of incriminating information. This is a correct application of the privilege against self-incrimination. If the trial court had ordered Bryan to produce incriminating documents or had threatened to hold him in contempt for refusing to answer an incriminating question, I would join a decision to issue the writ of mandamus to protect his Fifth *391 Amendment right against self-incrimination.
Neither of those scenarios, however, is present in this case. Discovery has long been complete, and the trial court has not ordered Bryan to answer any incriminating question. In fact, Bryan does not even really argue that he will have to incriminate himself at trial in the divorce action. Instead, he argues that, if he testifies at trial, he will have to refuse to incriminate himself.
By accepting Bryan's argument, the Court has extended the privilege against self-incrimination far beyond what is constitutionally required. Quoting Coastal Training Institute, the main opinion characterizes as "self-incrimination" the possibility that Bryan will be "`compelled to refuse to answer questions. . . .'"
Bryan's refusal to answer incriminating questions at the trial of the divorce action may or may not prejudice his position in that action. That was a valid equitable consideration in the trial court's deciding whether to grant a stay, but it does not directly implicate the Fifth Amendment. "That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination." Williams v. Florida,
II.
In light of this analysis, I believe that the main opinion misstates the relevant inquiry in determining whether Bryan is entitled to a stay. The Court speaks of a balancing test in which Teresa's interest in an end to her divorce action is weighed against Bryan's Fifth Amendment right against self-incrimination. After "balancing" those interests, the main opinion reaches the inevitable conclusion: "Bryan's Fifth Amendment right against self-incrimination outweighs the other factors to be considered in the balancing test, including any potential prejudice to Teresa."
It doesor, rather, it wouldif there were actually a Fifth Amendment issue presented. If Bryan's participation at the trial of the divorce action really constituted compelled self-incrimination, he would have a constitutional right to a stay, regardless of the prejudice to Teresa. The main opinion correctly states that there is no constitutional right to a stay. By doing so, however, and by applying a balancing test, the main opinion tacitly acknowledges that something other than Bryan's Fifth Amendment right is at stake.
It is Bryan's interest in the divorce actionnot the possibility of prejudice to his constitutional rights in a parallel criminal proceedingthat the Court must balance against Teresa's interests. In fact, this is precisely how Bryan has framed the issue. As he puts it, he does not want to have to invoke the privilege in the divorce proceeding because he wants to "receive all he is entitled to as a result of the divorce." This is a valid interest, but it implicates a constitutional right only in that the exercise of that right may (or may not) impede Bryan's arguments in the divorce proceeding.
III.
In my judgment, the equities of this case clearly balance in Teresa's favor. Her personal interest in terminating an allegedly abusive marriage and moving on with her life could hardly be more compelling. By contrast, Bryan's interest is his wish to avoid the possibility that he may invoke the privilege against self-incrimination in the divorce proceeding; he believes that avoiding that possibility will help him receive the greatest possible share of the marital estate.
In deciding whether to grant a stay, the trial court was free to consider other factors. For example, Teresa's counsel has agreed to limit the scope of the evidence to reduce the possibility that Bryan will be asked questions that relate to the pending criminal charges. In Ex parte Oliver,
Perhaps others would balance the equities differently than do I. Perhaps others in the trial court's position would grant Bryan's motion to stay the action. However, that is not the question that this Court has been asked to decide. Bryan is not entitled to the writ of mandamus unless he carries his burden of showing that the trial court clearly exceeded its discretion in denying *393 his motion to stay. The trial court is in a far better position than is this Court to know the status of its docket, the progress of the case to this point, and the likelihood that Bryan's motion is merely a stalling or negotiating tactic. There is every reason to allow the trial court broad discretion in this type of case.
IV.
The trial court did not exceed its discretion by deciding that Teresa's interest in terminating an allegedly abusive marriage outweighed Bryan's interest in not having to invoke the privilege against self-incrimination during the divorce proceeding. Ironically, the main opinion would deny Teresa a final judgment in her divorce proceeding because of her allegations of abuse. In the circumstances of this case, the result the Court reaches is, I think, both illogical and unfair.
Teresa has a profound interest in concluding her divorce action, which has now been pending for nearly two years. The fact that Bryan may have to invoke his privilege against self-incrimination at trial in that action does not establish his clear legal right to stay the action or any part of it. I respectfully dissent.
NOTES
Notes
[1] The dissent emphasizes that Bryan did not move for a stay of the divorce proceeding until the day before trial in the divorce proceeding was scheduled to begin. However, the dissent fails to acknowledge that Bryan was not arrested on the criminal charges until one week before the trial date. Therefore, he had a valid reason for not moving for the stay until the day before the proceedings were scheduled to begin.
[2] Article I, § 6, Ala. Const.1901, provides: "That in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself. . . ."
[3] On this petition for the writ of mandamus, this Court has no record before it of whether discovery has been completed. We assume that the dissent makes the statement that "[d]iscovery has long been complete,"
[4] This Court in Antonucci did not require the criminal defendant to make that choice.
[5] See, e.g., Rule 16.2(d), Ala. R.Crim. P. (denying the State the discovery of certain statements by the defendant and witnesses); Jackson v. State,
[6] See Ex parte Coastal Training Inst.,
[7] It is, however, not at all clear that this is so. The Court concludes that the divorce case and the stalking prosecution are parallel proceedings because "[t]o prove the stalking charge, the prosecution will possibly need to avail itself of evidence of alleged incidents and alleged abuse by Bryan that occurred before Teresa filed for divorce."
The indictment does not include the dates on which Bryan allegedly followed and/or harassed Teresa. However, the stalking charge is included in the same indictment with the charges of criminal mischief and criminal trespass, both based on an incident that occurred after Teresa had filed for divorce. This suggests that the stalking charge is also based on events that occurred after the divorce action was filed. See Rule 13.3(a)(2), Ala. R.Crim. P. (offenses may be joined in the same indictment if they are based on the same conduct or are otherwise connected in their commission). At best, Bryan has shown a possibility that the criminal and civil proceedings may be partially parallel.
[8] This language in Coastal Training Institute was taken verbatim from Afro-Lecon, Inc. v. United States, a Federal Circuit case. Afro-Lecon offered no authority for its statement that the Fifth Amendment protects one from being "`compelled to refuse to answer questions individually.'" The lone citation accompanying that statement in Afro-Lecon is to Hoffman v. United States,
The question of whether to stay a parallel proceeding is not a constitutional issue, and the United States Courts of Appeals have taken very different approaches in determining when a stay is required. It is unclear why the Court in Coastal Training Institute decided to rely on a Federal Circuit decision. The Federal Circuit has extremely limited jurisdiction, with a focus on federal contracts, intellectual property, and international trade, 28 U.S.C. § 1295; it does not decide criminal cases. In contrast, the other federal courts of appeal routinely decide criminal cases and have vast expertise in matters of criminal law and procedure.
The Federal Circuit's approach as to when to grant a stay is in stark contrast with the approach taken by the United States Court of Appeals for the Eleventh Circuit. The latter will stay a parallel proceeding only if "the invocation of the privilege would result in `automatic entry of summary judgment.'" United States v. Premises Located at Route 13,