Facts: Defendant Admilson Vizcaino was a scheduled
prosecution witness in a murder trial, but he refused to testify out of fear
for his safety and the safety of his family. Twice the trial judge ordered him
to testify and twice he refused. Finally, during the fifth week of trial on May
12, she held him in civil contempt and committed him to a house of correction
until he complied with the order to testify. The judge also indicated that she
thought the defendant had committed summary criminal contempt, but did not
enter a judgment or sentence him on that charge. After the trial ended, the
judge determined that she would want to impose a sentence of longer than three
months on the outstanding criminal contempt matter. Any criminal contempt
punishable by a sentence longer than three months is nonsummary criminal
contempt. Because Massachusetts law (Rule 43 of 378 Mass. 919) requires that a
defendant charged with nonsummary criminal contempt be formally referred for
prosecution by complaint or indictment and receive a trial by jury, Vizcaino
was thereafter indicted on nonsummary criminal contempt.
Procedural Posture: Vizcaino challenges his
indictment for nonsummary criminal contempt on the grounds that he was
previously judged in criminal contempt and thus the new indictment would
constitute double jeopardy.
Issue: Whether the trial judge convicted the defendant
of summary criminal contempt on May 12, precluding his subsequent indictment
for the same offense?
Summary
contempt requires a number of procedural protections for the defendant,
including an opportunity to be heard, a reading of the judgment in open court,
and a notification of his right to appeal. The trial judge stated that she
found him in summary contempt, but she never entered written judgment, did not
provide him with an opportunity to argue his case, and never sentenced him or
gave him an opportunity to appeal. The SJC thus found that due to these
deficiencies, the defendant had not been convicted of summary contempt.
Furthermore, the SJC noted that the requirements of summary contempt are
strictly followed, as a defendant may be convicted without a jury or even a
trial; these encroachments on due process are justified by the judge’s need for
control over her courtroom but nonetheless are disfavored. Thus, any failure to
conform to the rules of summary contempt triggers the enhanced protections of
nonsummary contempt, as was the case here.
Judgment: The defendant’s petition to dismiss his
indictment is denied. (GC)
