State v. WarrenState v. Warren
At issue is whether the protection against double jeopardy precludes a criminal prosecution predicated upon the same conduct for which defendants have been punished in prior summary contempt proceedings. Ancillary questions are presented with respect to the applicability of
I
The principal thrust of defendant‘s claim is that the present prosecution is barred by the federal and state constitutional prohibitions against double jeopardy. Although New Jersey‘s constitutional language is narrower than that set forth in the Fifth Amendment, the protection so conferred has been construed as coterminous with its federal counterpart.1State v. Barnes, 84 N.J. 362, 370 (1980); State v. Lynch, 79 N.J. 327, 340 (1979); State v. Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Farmer, 48 N.J. 145, 168 (1966), cert. den. 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967). Thus, there is no need to consider separately New Jersey‘s constitutional proscription against double jeopardy.
The Fifth Amendment proscribes multiple prosecution for “the same offense.” While “[n]o one currently questions the great worth of [this] constitutional safeguard,” difficulty arises in determining “just when we are dealing with the same offense within the contemplation” of that protection. State v. Currie, 41 N.J. 531, 536 (1964). The constitutional prohibition had its genesis in the early common law of England. Ashe v. Swenson, 397 U.S. 436, 450, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469 (1970). See, also, Note, “Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee,” 65 Yale L.J. 339, 340-344 (1956). Although the phrase “same offense” appeared in the earliest articulations of the double jeopardy principle, see 4 Blackstone Commentaries 335, “questions of its precise meaning rarely arose prior to the 18th century.” Ashe v. Swenson, supra at 451, 90 S.Ct. at 1198. By
The double jeopardy clause protects against a second prosecution for the same offense after an acquittal and following a conviction. It also guards against multiple punishments for the same offense. Brown v. Ohio, 431 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The principle evolved as a reaction to the “prodigious prosecution advantages” of the early common law. See Note, “Consecutive Sentences In Single Prosecutions: Judicial Multiplication of Statutory Penalties,” 67 Yale L.J. 916, 918 (1958). Its object and design were to secure finality in criminal litigation by protecting defendants from the threat, harassment and stigma of repeated criminal trials. The clause insures that “[t]he State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity....” State v. Barnes, supra 84 N.J. at 370. See, also, Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).
The prohibition is “not against being twice punished, but against being twice put in jeopardy.” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963). Stated somewhat differently, the double jeopardy clause does not per se bar multiple prosecutions for the same criminal act. It merely precludes successive prosecutions for the same
The authority to summarily punish an individual for contumacious conduct in the presence of the court has been recognized and approved in numerous cases notwithstanding the potential dangers inherent in this practice. See In re Yengo, 84 N.J. 111, 119-120 (1980), cert. den. 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981); In re Carton Contempt, 48 N.J. 9, 21 (1966); In re Buehrer, 50 N.J. 501, 515 (1967); In re Boyd, 36 N.J. 285, 287 (1962); In re Hinsinger, 180 N.J. Super. 491, 495 (App.Div. 1981); In re Ungar Contempt, 160 N.J. Super. 322, 330 (App.Div. 1978). Such power finds its roots in “[s]tark necessity.” United States v. Mirra, 220 F. Supp. 361, 364 (S.D.N.Y. 1963), quoting from Green v. United States, supra 355 U.S. at 213, 78 S.Ct. at 236. “[W]ithout the prospect of prompt prosecution, the prevailing litigant could be delayed in the enjoyment of his rights or even denied them in times and places in which those rights are in low popular regard.” In re Buehrer, supra 50 N.J. at 515. Divested of summary contempt powers, the courts would find it impossible to control the disorderly and violent who respect neither the laws nor those charged with administering them. Yates v. United States, 355 U.S. 66, 70, 78 S.Ct. 128, 131, 2 L.Ed.2d 95 (1957); Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 82, 32 L.Ed. 408 (1888). This principle applies with equal force to the power to compel a recalcitrant witness to testify. Defiance of such an order falls within the purview of the summary contempt power. In re Hinsinger, supra 180 N.J. Super. at 495. It is to be noted in that regard that the public “has a right to every man‘s evidence.” United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). The cherished right to a trial by jury would be lost if a witness could make himself the final arbiter of the availability of his testimony. That is particularly true in criminal cases where witnesses often lack the motivation of self-interest to appear and testify. The right of the court to
These considerations compel the conclusion that an act which is a contempt of court and also a crime may be punished both by summary proceedings and by subsequent indictment and conviction. Conduct destructive of the court‘s decorum can also be an offense against the laws of the State. To afford a defendant a ready means of escape from the consequences of his contumacy would render the courts wholly ineffectual. Moreover, the judiciary would be placed in an unenviable dilemma. Should the court take immediate action by way of summary contempt, the State‘s right to prosecute would be sacrificed. The recalcitrant witness would be rewarded by what is in effect a grant of transactional immunity. Conversely, should the court fail to act in a timely fashion, the integrity of the trial would be forever lost — clearly an unconscionable result.
Further, in summary contempt cases the accused is not subjected to successive trials and prosecutions forbidden under the double jeopardy clause. It can hardly be argued that such an individual suffers the harassment of successive trials. Swift imposition of a summary contempt conviction is not preceded by an adversary-type proceeding. Simply stated, the prosecutor does not prosecute and the defense does not defend. A rebellious witness does not have the option of having the issue of his contumacy resolved with the full panoply of rights accorded an accused in a criminal proceeding. In a similar vein, the prosecutor is not obliged to present evidence or, for that matter, to interfere with the proceedings. In a very real sense, the trial of the accused for the crime arising out of his contumacious conduct is the first trial-type “harassment” to which the contemnor is made subject.
Research has disclosed no published decision in New Jersey dispositive of defendant‘s argument. Dicta in several decisions rendered by the United States Supreme Court lends support to the conclusion that a summary contempt conviction does not bar
Other jurisdictions, both federal and state, have concluded that contumacious conduct may be the subject of multiple
In a similar vein, convictions for contempt and assault were upheld in United States v. Mirra, supra. There, defendant, while under cross-examination, hurled the witness chair at the federal prosecutor. Defendant was summarily held in contempt and sentenced to imprisonment for one year. The grand jury thereafter returned an indictment predicated upon the chairthrowing incident. Defendant moved to dismiss the indictment
Of similar import are the decisions of the Supreme Court of Tennessee in Maples v. State, 565 S.W.2d 202 (Tenn. 1978), and Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076 (1903). In Maples v. State, defendant instituted a divorce action, claiming that his wife was a resident. After being awarded a divorce, defendant sought to have the judgment set aside upon the basis that he had sworn falsely as to his wife‘s residency at the prior proceeding. In summary proceedings, the court held defendant in contempt and further directed that an investigation be made as to whether a criminal prosecution should be commenced. Defendant was subsequently indicted for perjury. The Supreme Court held that “the purposes of the general statutes authorizing a court to punish for abuse of its processes and those creating and prescribing punishment for various indictable offenses are so entirely different, and designed to accomplish such wholly different purposes“; that no violation of constitutional principles pertaining to double jeopardy arose. Id. at 205. In Ricketts v. State, supra, defendant was held in contempt for threatening a witness. Subsequently, defendant was charged with subornation of perjury arising from the same conduct. The Supreme Court held that imposition of the contempt citation did not preclude a later criminal prosecution. Id. at 1077. It was emphasized that the offenses of contempt and the statutory crime were “created upon different principles, for different purposes, [were] tried and punished differently, and a conviction
Distinguishable are such cases as United States v. Haggerty, 528 F. Supp. 1286 (D.Colo. 1981); United States v. United States Gypsum Co., 404 F. Supp. 619 (D.D.C. 1975); People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (Sup.Ct. 1977), cert. den. sub nom. Illinois v. Gray, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), and Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49 (Sup.Ct. 1930). All of these decisions pertained to indirect contempts committed out of the presence of the court and tried by way of full trial-type criminal prosecutions. The summary power to punish for direct contempt is quite different. As noted, it is a power necessary to the orderly dispatch and conduct of the business of the courts. Its use is not intended to immunize the rebellious witness from prosecution for violation of specific provisions of the Code of Criminal Justice.4 Consequently, such contempt sanctions are imposed summarily and the contemnor does not suffer the harassment of separate trials.
II
The result reached here is not contrary to the mandatory joinder rule adopted in State v. Gregory, 66 N.J. 510 (1975) and
None of these considerations are present here. Neither the historical nor modern functions of the compulsory joinder rule encompass more than a prohibition against successive prosecutions. The underlying idea, “one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense....” Green v. United States, supra 355 U.S. at 187, 78 S.Ct. at 223. Harassment, in the setting of the compulsory joinder rule, implies misconduct by the prosecutor as well as hardship to the accused. See Comment, “Twice In Jeopardy“, 75 Yale L.J. 262, 286 (1965). The statutory predicate is that the prosecutor must be aware of multiple offenses emanating from the conduct of the accused. The plain implication is that it is incumbent upon the prosecutor to insure that all charges stemming from the same criminal conduct are tried in a single proceeding. In other words, a second prosecution will be