Sate v. Goodnow , 140 N.H. 38 ( 1995 )

BATCHELDER, J.

This is an interlocutory transfer by the Superior Court (Mangones, J.). The defendant, Philip J. Goodnow, moved to dismiss two charges of assault by a prisoner, RSA 642:9 (1986), on double jeopardy grounds after having served a sentence for direct criminal contempt stemming from the same conduct. The trial court denied his motion to dismiss, and the defendant moved to reconsider. The trial court treated the motion as a request for an interlocutory transfer and granted the request. On appeal, the defendant frames the question as follows:

When a defendant has been convicted of direct criminal contempt for physically attacking police officers in open court, is a subsequent prosecution for assault on the basis of the same conduct prohibited by either Part 1, article 16 of the New Hampshire State Constitution, or the Double Jeopardy clause of the Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment?

We answer this question in the affirmative and remand.

On February 24, 1992, the defendant appeared in Keene District Court (Lane, J.) for arraignment and setting of bail in an unrelated matter. When the prosecutor’s request for $5,000 bail was granted, the defendant, then in official custody, became disorderly and used profanity toward the judge while being led away. Then, according to the district court’s order, the defendant

appeared to turn in my direction and Court Security consisting of the Court Bailiff (Frank Smith), Swanzey Chief (Olgren), and 2 N.H. State Police Officers (Sweet & Jones) then attempted to restrain the defendant and a fight ensued between the defendant and officers with Trooper Jones being injured.

The court then summarily found the defendant in criminal contempt and on the following day sentenced him to sixty days at the house of correction. Subsequently, the defendant was indicted on two charges of assault on Trooper Jones, one indictment alleging knowing conduct and the other charging recklessly causing injury. The parties and the trial court agree that the felony charges arise out of the same incident as the criminal contempt.

The defendant argues that under both the State and Federal Constitutions his prosecution for assault is barred by the guarantees against double jeopardy. He contends that under the New Hampshire “difference in evidence” test, see State v. Constant, 135 N.H. 254, 605 A.2d 206 (1992), the contempt and assault constitute the same crime. Under the federal test, see Blockburger v. United States, 284 U.S. 299 (1932), the defendant argues he is entitled to dismissal of the indictments because the assault is a lesser-included offense of the direct criminal contempt. The State counters that the prosecution is not barred by double jeopardy. As a threshold matter the State argues that double jeopardy does not apply to a summary finding of direct criminal contempt. We first address the defendant’s claim under the State Constitution, using federal decisions only to the extent that they may aid our analysis. See State v. Gravel, 135 N.H. 172, 176, 601 A.2d 678, 680 (1991). As we find the protection the defendant seeks under our own constitution, we make no independent federal analysis.

A court has the power to punish an individual for direct criminal contempt, that is, contempt occurring in its presence. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285, 385 A.2d 851, 854 (1978). This “authority is necessary to prevent acts or conduct which would obstruct or interfere with the orderly administration of justice.” State v. Martina, 135 N.H. 111, 116, 600 A.2d 132, 135 (1991) (quotation and ellipses omitted). When the contemptuous behavior is openly threatening and committed in the presence of the court, direct contempt may be punished summarily, “all elements of the contempt being clearly observable by the court.” Town of Nottingham, 118 N.H. at 285, 385 A.2d at 854.

Although not found in the Criminal Code, criminal contempt is an offense, Martina, 135 N.H. at 116, 600 A.2d at 135, and “[t]he sentence is punitive . . .,” Town of Nottingham, 118 N.H. at 285, 385 A.2d at 854. Having been found in criminal contempt and sentenced therefor to imprisonment, the defendant has been punished for a criminal offense.

The double jeopardy clause of the New Hampshire Constitution prohibits multiple prosecution and multiple punishment for the same offense. State v. Fitzgerald, 137 N.H. 23, 25, 622 A.2d 1245, 1246 (1993). If the offenses are the “same” as that term is defined in our double jeopardy jurisprudence, then the clause’s bar to the instant prosecution applies.

The State argues that double jeopardy protection is not triggered by a direct criminal contempt conviction because a contrary result would undermine a court’s authority to deal effectively with disruptive conduct in the courtroom. This argument, however, begs the essential question of whether the contempt gave rise to the defendant’s punishment for a criminal offense. The cases principally relied on by the State, United States v. Rollerson, 449 F.2d 1000 (D.C. Cir. 1971), and United States v. Mirra, 220 F. Supp. 361 (S.D.N.Y. 1963), while factually similar to the case at bar, do not, as the State concedes, discuss the issue of multiple punishments; they hold double jeopardy principles inapplicable because, as the summary contempt proceeding was not a prosecution, the defendant was not subjected to a second prosecution for the same offense. See Rollerson, 449 F.2d at 1004-05; Mirra, 220 F. Supp. at 366.

The State maintains that because summary contempt is not an adversarial proceeding brought against a defendant by a prosecutor, double jeopardy is inapplicable. This suggests that the agency by which and the purpose for which a defendant is sanctioned for his criminal conduct sufficiently differentiates contempt from a statutory crime to exempt it from the double jeopardy protection cloaking other offenses. To a defendant sentenced to incarceration for direct criminal contempt, however, it is a matter of indifference that the punishment is intended to vindicate the court’s authority to keep order in the courtroom rather than the State’s authority to enforce its criminal laws. “[C]onvictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same.” Bloom v. Illinois, 391 U.S. 194, 201 (1968); see also United States v. Dixon, 113 S. Ct. 2849, 2858 (1993) (text of double jeopardy clause “looks to whether the offenses are the same, not the interests that the offenses violate”); cf. State v. Corson, 134 N.H. 430, 433, 593 A.2d 248, 250 (1991) (calling excess penalty an assessment “does not alter or diminish its consequence to the defendant”).

We are naturally sympathetic to the needs of judges to maintain order and dignity in their courtrooms. Some may argue that our decision may inhibit judges’ exercise of their authority to punish criminal contempt. As the Supreme Court has noted, however, nothing supports a “‘pragmatic’ view that the meaning of the Double Jeopardy Clause depends upon our approval of its consequences.” Dixon, 113 S. Ct. at 2858 n.4 (citation omitted). Because the defendant was punished for the assaultive conduct that comprises the subsequent indictments, a prosecution for the same offense would run afoul of the double jeopardy prohibition.

The State concedes that if double jeopardy applies, the assault and the contempt constitute the same offense under current New Hampshire double jeopardy principles. As a result, the assault prosecution is barred. The State urges us to abandon our double jeopardy test in favor of the federal same-elements test of Blockburger v. United States, 284 U.S. 299. Our reasons for adopting the so-called same evidence test were sound, see generally Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983), and we have applied it consistently and recently, see, e.g., State v. Brooks, 137 N.H. 541, 629 A.2d 1347 (1993). We see no reason to depart from it. See generally Brannigan v. Usitalo, 134 N.H. 50, 53, 587 A.2d 1232, 1233 (1991).

Remanded.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.