People v. Barron

677 P.2d 1370, 1984 Colo. LEXIS 505

• Court: Supreme Court of Colorado
• Decided: March 12, 1984
• Docket: 81SA483
• Status: Published

Opinions

ERICKSON, Chief Justice.

The prosecution has appealed an order which dismissed an information charging the defendant, John A. Barron, with criminal contempt. We reverse and remand for further proceedings consistent with this opinion.

I.

John A. Barron was a bailiff sworn to take charge of a sequestered jury in the murder trial of Lewis Roger Moore. As bailiff, he took an oath to keep from the jury all newspapers, television programs, and any other materials which might bear in any way upon the jurors’ independent assessment of the particular facts in the case. He also swore that he would not discuss the case with the jurors and was ordered to monitor the jurors’ telephone conversations.

On the second day of trial, a juror told Judge Sparr, the trial judge, that during the previous evening, the bailiff discussed the ease with several members of the jury. Judge Sparr then questioned each juror in his chambers and concluded that the bailiff told five jurors in his custody that Moore became a paraplegic as a result of a knife fight at the penitentiary in Canon City. Jurors who were interviewed by Judge Sparr told him that the bailiff had not monitored their telephone calls or restricted their access to newspapers or television.

On his own motion, over objections of both the defense and the prosecution, Judge Sparr declared a mistrial and caused a special prosecutor to review the allegations against the bailiff. On March 13, 1981, Judge Plank granted the prosecution leave to file an information.¹ Judge Plank thereafter recused himself and the case was transferred to Judge Rothenberg.

At the preliminary hearing on June 24, 1981, Judge Rothenberg found that there was probable cause for further prosecution. The defendant was then arraigned and entered a plea of not guilty. On July 8, 1981, the defendant filed a motion to dismiss, alleging: “The court lacks criminal jurisdiction over this matter, as the information fails to charge an act forbidden by law.”

On September 15, 1981, Judge Rothen-berg granted the defendant's motion to dismiss because there was no jurisdiction “to proceed under the crime of common law contempt as it is presented to the Court.”

II.

The issue is whether the trial court was without jurisdiction because the contempt proceeding was initiated by information. We conclude that the court did have jurisdiction and erred in dismissing this case.

Criminal contempt consists of conduct that obstructs the administration of justice or tends to bring the court into disrepute. E.g., Losavio, Jr. v. District Court, 182 Colo. 180, 512 P.2d 266 (1973); Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892). The power to punish for criminal contempt is an inherent and indispensable power of the court and exists independently of legislative authorization.² Austin v. City & County of Denver, 156 Colo. 180, 397 P.2d 743 (1964); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); People ex rel. Attorney General v. News-Times Publishing Co., 35 Colo. 253, 84 P. 912 (1906), writ of error dismissed sub nom. Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed.2d 879 (1907). In Wyatt v. People, supra, this court traced the origin of common law contempt and noted that the framers of the Colorado Constitution did not intend to extend all the constitutional protections applicable to criminal prosecutions, Colo. Const. art. II, §§ 8, 16, and 23, to criminal contempts:

“The framers of our constitution never intended to thus interfere with the due and orderly administration of justice. It was not their purpose to have the procedure designated in the sections mentioned cover contempts of court, and thus give this class of offenses a status theretofore unknown in either the statutory or the common law. The constitutional guaranties apply to such acts as constitute violations of public and general laws. They leave contempts which are simply acts in disobedience of judicial mandates or process, or which tend to obstruct the dignified and effective administration of justice, to be dealt with in the summary manner theretofore universally followed.”

17 Colo. at 260, 28 P. at 963 (emphasis in original). We emphasized in Austin v. City & County of Denver, supra, the flexibility of procedures for prosecuting criminal contempt, and said:

“Although there is no fixed procedural formula for contempt proceedings, so that technical nicety is not required, Schwartz v. United States, 217 Fed. 866, courts should improvise a procedure which accords with due process of law. ‘No person shall be deprived of life, liberty or property, without due process of law.’ Art. II, Sec. 25, Constitution of Colorado.”

156 Colo. at 184, 397 P.2d at 746. For example, criminal contempt proceedings have been conducted under the provisions of C.R.C.P. 107 which provide in pertinent part:³

“(a) Definition. Misbehavior of any person in the presence of the court, ... or misbehavior so near thereto as to obstruct the administration of justice, misbehavior of any officer of the court in his official transactions and disobedience or resistance of any person to or interference with any lawful writ, process, order, rule, decree, or command of said court or any act or omission designated as contempt by the statutes or these rules shall constitute contempt.

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“(c) Out of the Presence of the Court. When it appears to the court by motion supported by affidavit that a contempt has been committed out of the presence of the court, it may ex parte order a citation to issue to the person so charged to appear and show cause at a time designated why he should not be punished therefor. The citation and a copy of the motion and affidavit shall be served upon such person a reasonable time before the time designated....”

(Emphasis supplied.)

Although the Colorado General Assembly in 1971 abolished all common law crimes in Colorado, it reserved to the courts the power to punish contempt by enacting section 18-1-104(3), C.R.S.1973 (1978 Repl.Vol. 8), which provides:

“Common-law crimes are abolished and no conduct shall constitute an offense unless it is described as an offense in this code or in another statute of this state, but this provision does not affect the power of a court to punish for contempt, or to employ any sanction authorized by law for the enforcement of an order lawfully entered, or a civil judgment or decree; nor does it affect the use of case law as an interpretive aid in the construction of the provisions of this code.”

(Emphasis supplied.) Under our prior decisions, the court’s jurisdiction in this case is not dependent upon the particular form of the charging document, but rather on whether the contents of the charging document provided adequate notice of the charge and an opportunity for the defendant to be heard in a manner comporting with basic due process.

III.

In this case the defendant was charged with criminal contempt committed out of the presence of the court. The district attorney, with the permission of the court, filed a properly verified information. Essentially, the prosecution alleged in an information that between February 10 and February 12, 1982, at Denver, Colorado, the defendant unlawfully and knowingly violated the oath of jury bailiff “by discussing possible evidence and other matters relative to the case with members of the [sequestered] jury,” “by making available newspapers for reading and television for viewing by sequestered jury members,” and by failing “to monitor all telephone conversations by members of the sequestered jury.” The contempt charges in the information were sufficient and did not deprive the defendant of his right to due process of law. U.S. Const., amend. XIV, and Colo. Const, art. II, § 25.

The procedure followed by the prosecution provided the defendant with greater procedural safeguards than those contemplated by C.R.C.P. 107 and, for that matter, by any of our prior cases.⁴ See, e.g., People ex rel. Attorney General v. News-Times Publishing Co., supra; Wyatt v. People, supra. Based upon the rationale of our prior cases, the trial court was not deprived of jurisdiction merely because the contempt charge was initiated by the filing of a verified information rather than by the citation procedure, although the citation procedure under C.R.C.P. 107 would have been a better practice.

Accordingly, we reverse the judgment of dismissal and remand the case to the district court with directions to reinstate the information and for further proceedings consistent with this opinion.

NEIGHBORS, J., dissents.

1 . It is not clear from the record whether Judge Plank suggested that the special prosecutor file an information charging criminal contempt, or whether the special prosecutor concluded that an information was the proper way to proceed in this case.

2 . In Austin v. City & County of Denver, supra, we declared:

"The power to punish for contempt, as a punitive measure or to coerce obedience, is an inherent and indispensable power of the courts. Such power is not derived from the Legislature and cannot be made to depend upon the legislative will.”

156 Colo. at 184, 397 P.2d at 745; see also Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); People ex rel. Attorney General v. News-Times Publishing Co., 35 Colo. 253, 84 P. 912 (1906); writ of error dismissed sub nom. Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907); Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892); Hughes v. People, 5 Colo. 436 (1880).

The contemnor’s conduct is not the differentiating factor in determining whether the contempt is civil or criminal. The primary consideration is the purpose and character of the sanctions imposed against the contemnor. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336 (3d Cir.1976). Civil contempt proceedings are remedial and are not intended as a deterrent to offenses against the public. Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); see also Penfield Co. of Cal. v. S.E.C., 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947). Criminal contempt is prosecuted to preserve the power and vindicate the dignity of the court by punishing the contemnor. Wright v. People, 31 Colo. 461, 73 P. 869 (1903); Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892).

3 . A show cause order was the procedure used to formulate the criminal contempt issued in Lobb v. Hodges, 641 P.2d 310 (Colo.App.1982); In Re P.R. v. District Court, 637 P.2d 346 (Colo.1981); Harthun v. District Court, 178 Colo. 118, 495 P.2d 539 (1972); Robran v. People, 173 Colo. 378, 479 P.2d 976 (1971); Smith, District Attorney v. District Court, 150 Colo. 136, 371 P.2d 271 (1962); Mainland v. People, 111 Colo. 198, 139 P.2d 366 (1943).

Crim.P. 57(b) provides:

"If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these Rules of Criminal Procedure and shall look to the Rules of Civil Procedure and to the applicable law if no Rule of Criminal Procedure exists.”

4 . This court stated in Austin v. City & County of Denver, supra:

"Essential to due process in contempt proceedings is the right of one to know that the purpose of a hearing is the ascertainment of whether he is guilty of contempt. Federal Trade Comm. v. A. McLean & Son, 94 F.2d 802 [ (7th Cir.1938) ]; McCann v. New York Stock Exch., 80 F.2d 211 [(2nd Cir.1935) ]; Dept. of Health v. Roselle, 34 N.J. 331, 169 A.2d 153; State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N.W. 830, 23 A.L.R. 491.”

156 Colo. at 184, 397 P.2d at 746

When an indirect criminal contempt has been charged "the [defendant] is entitled to notice of the charge, the right to be represented by counsel at the hearing, the right to call and confront witnesses, the right to an adjudication by the court, and, in the absence of an overriding and compelling interest, the right to have the hearing- conducted in open court." P.R. v. District Court, 637 P.2d 346, 350-51 (Colo.1981) (citation omitted); see also In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Criminal con-tempts with an authorized sentence of more than six months are considered serious crimes and those with a possible sentence of six months or less are classified as petty offenses. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969). A defendant charged with contempt is entitled to a jury trial when imprisonment may be for more than six months. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).