STATE of Louisiana v. James Marvin HOPE
No. 83 KA 1183
Court of Appeal of Louisiana, First Circuit
April 3, 1984
449 So.2d 633
Sam J. Collett, Jr., Bogalusa, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellee.
Before PONDER, WATKINS and CARTER, JJ.
WATKINS, Judge.
Defendant, James Marvin Hope, was charged by bill of information with having committed the crime of simple kidnapping in violation of
FACTS:
Defendant, who was separated from his wife who had custody of the child, picked up their three year old daughter for his weekend visitation period. Defendant left
ISSUES:
In its appeal, the State contеnds that the trial court erred in sustaining the motion to quash the bill of information on the ground of double jeopardy and in its application of
CIVIL OR CRIMINAL CONTEMPT?
At the onset, we must determine whether the contempt proceeding against defendant was civil or criminal. If the proceeding was civil in nature, trial of defendant on the kidnapping charge would not constitute double jeopardy. See: State v. Austin, 374 So.2d 1252 (La.1979).
In Austin, the court adopted the test set forth by the United States Supreme Court in Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), in determining whether a contempt proceeding is civil or criminal. Under Shillitani, the test is: “What does the court primarily seek to accomplish by imposing sentence?” Id. at 370, 86 S.Ct. at 1535. If the purpose of the sentence is to coerce, rather than to punish, then the proceeding is civil.
In Austin, the defendant was charged with criminal neglеct of family in violation of
Here, the primary purpose of the sentence was to punish defendant rather than to coerce him into complying with the visitation order. In addition to finding defendant in contempt, the trial court also ordered that defendant‘s visitation privileges be restricted and stated that the privileges would be extended again when defendant showed that he would comply with the court‘s оrders. Unlike the defendant in Austin, defendant herein was not given a choice between complying with the court‘s orders or going to jail. While the ten day jail sentence may have had the effect of compelling defendant into complying with future court orders, its primary purpose was to punish defendant for his non-compliance with previous orders of the court.
DOUBLE JEOPARDY:
We must now determine whether trial on the kidnapping charge would expose defendant to dоuble jeopardy.
Both the Louisiana and United States Constitutions prohibit placing a person twice in jeopardy for the same offense.
The test еnunciated by the United States Supreme Court for determining whether two offenses are the same for double jeopardy purposes is whether eaсh statute requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This rule is embodied in
Louisiana uses both the “Blockburger” test and the “same evidence” test. State v. Vaughn, 431 So.2d 763 (La. 1983). Under the “same evidence” test, if the evidence required to support a finding of guilt of one crime would also have supported conviction оf the other, the two are the same offense under a plea of double jeopardy, and a defendant can only be placed in jeopardy for one. State v. Steele, 387 So.2d 1175 (La.1980). The “same evidence” test is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or рut in jeopardy) twice for the same course of conduct. State v. Steele, supra.
The contempt charge of which defendant was convicted required proof that defendant willfully disobeyed a lawful order of the court. See:
The state contends that because the simple kidnapping charge required proof that the defendant took the child out of the state with the intent to defeat the jurisdictiоn of the court and the contempt charge did not require this evidence the two offenses are not the same under the “same evidence” test. It further argues that the “same evidence” test depends on the evidence necessary to convict and not the evidence introduced at trial.
Wе agree that the “same evidence” test depends on the evidence necessary to convict and not the evidence introduced at trial. State v. Doughty, 379 So.2d 1088 (La.1980). However, in State v. Steele, supra, the Louisiana Supreme Court held that where proof of the second offense would have been sufficient to convict the defendant of the first offense, the two offenses are the same under the “same evidence” test.
In the instant case, the evidence necessary to convict defendant of the first offense (contempt of court) would not have been sufficient to convict defendant of the second offense (simple kidnapping). The contempt charge only required proof that defendant willfully disobeyed a lawful order of the court. The simple kidnapping charge required рroof that defendant took the child out of the state, from the custody and without the consent of the legal custodian, with the intent to defeat the jurisdictiоn of the court. However, the proof necessary to convict defendant of the simple kidnapping charge would have been sufficient to сonvict defendant of the contempt charge. We therefore conclude that the two offenses are the same under the “same evidenсe” test and that trial of defendant on the simple kidnapping charge would have the effect of placing defendant twice in jeopardy for thе same course of conduct.
We therefore find no error on the part of the trial court in sustaining defendant‘s motion to quash.
CONCLUSION:
For the foregoing reаsons, the judgment of the trial court sustaining defendant‘s motion to quash the bill of information is affirmed.
AFFIRMED.
Notes
“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive vеrdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”