IN THE SUPREME COURT OF TENNESSEE FILED
AT NASHVILLE
December 29, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
) FILED: DECEMBER 29, 1997
Appellant )
) PICKETT COUNTY
v. )
) HON. LEON BURNS, JR.,
BILLY O. WINNINGHAM ) JUDGE
)
) NO. 01-S-01-9701-CC-00008
Appellee )
For Appellee: For Appellant:
PHILLIPS M. SMALLING JOHN KNOX WALKUP
Byrdstown, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
DARYL J. BRAND
Assistant Attorney General
Nashville, TN
WILLIAM E. GIBSON
District Attorney General
ANTHONY W. HUDDLESTON
Assistant District Attorney
General
Livingston, TN
OPINION
JUDGMENT REVERSED; INDICTMENT REINSTATED BIRCH, J.
Billy O. Winningham, the appellee, was adjudicated in
contempt of court for having violated an order of protection issued
at the request of his estranged wife. The contemptuous conduct
alleged included setting the fire that burned down his wife’s
house.1 This same conduct also served as the basis for an arson
indictment later returned against him.
The trial court, upon the appellee’s motion, dismissed
the indictment on double jeopardy grounds; the Court of Criminal
Appeals affirmed that judgment. We granted the State’s application
for review under Rule 11, Tenn. R. App. P., in order to determine
whether the double jeopardy provisions of the United States and
Tennessee Constitutions bar a subsequent criminal prosecution when
the conduct underlying the charge in the indictment also served as
the evidentiary basis for an earlier contempt conviction. Because
arson and contempt are, in the context presented, significantly
different offenses under double jeopardy analyses, we find no
double jeopardy violation here and reverse the judgment of the
Court of Criminal Appeals.
I
The protective order in question was entered on October
15, 1993, by the Circuit Court of Pickett County in the matter of
Mary S. Winningham v. Billy O. Winningham. It provided:
1
Other conduct supporting the contempt conviction included:
threats to Ms. Winningham’s life, trespass upon her property, and
shots fired at her car.
2
the respondent is enjoined from
coming about petitioner [Ms.
Winningham] for any purpose and
specifically from abusing,
threatening to abuse petitioner, or
committing any acts of violence upon
petitioner upon penalty of contempt.
On November 19, 1993, Ms. Winningham’s house burned, and
the appellee was arrested and incarcerated the same day on a
contempt charge for violation of the protective order. On November
23, 1993, the trial court held a hearing on the contempt charge and
found the appellee guilty of civil and criminal contempt. The
trial court delineated the factual basis for its ruling:
The proof in this case satisfies the
Court both by a preponderance of the
evidence for civil contempt and
beyond a reasonable doubt for
criminal contempt that the defendant
did in fact violate this order. I’m
satisfied that the proof, by both
direct and circumstantial evidence,
indicates that the defendant
threatened Ms. Winningham’s life on
the telephone, that he came around
there, that he came back onto the
back porch and cut the wires. I’m
satisfied that by direct and
circumstantial evidence that he came
back to the property and set the
fire that led to this house being
burned down.
The Court finds in this case that
the aggrieved party has suffered
damages in the burning of her home
and in the shooting of her car, both
of which in the Court’s opinion, and
the Court finds both by a
preponderance of the evidence and
beyond a reasonable doubt, was at
the hand of the defendant.
The trial court imposed punishment for both civil
contempt and criminal contempt, pursuant to Tenn. Code Ann. §§ 36-
3
3-610 (1991) and 29-9-105 (1980).2 The order of civil contempt was
vacated on January 24, 1994. As of that date, the appellee had
been incarcerated longer than the maximum sentence allowable for
criminal contempt under Tenn. Code Ann. § 29-9-103 (Supp. 1993).3
On January 3, 1994, the appellee was indicted for arson
in the alleged burning of Ms. Winningham’s house. The Criminal
Court of Pickett County found that the trial court’s prior contempt
judgment was based on the same facts upon which the arson
indictment had been grounded. Consequently, the court dismissed
the arson indictment on double jeopardy grounds, and the Court of
Criminal Appeals affirmed the dismissal.
II
Because this appeal presents a question of law, our
review is de novo with no presumption of correctness. State v.
Davis, 940 S.W.2d 558, 561 (Tenn. 1997. The Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution,
2
Tennessee Code Annotated § 36-3-610 (1991) provides: “Upon
violation of the order of protection . . . the court may hold the
defendant in civil or criminal contempt and punish him in
accordance with the law.” Tennessee Code Annotated § 29-9-105
(1980) provides: “If the contempt consists in the performance of
a forbidden act, the person may be imprisoned until the act is
rectified by placing matters and person in statu quo [sic], or by
the payment of damages.”
3
Tennessee Code Annotated § 29-9-103 (Supp. 1993) provides:
(a) The punishment for contempt may be by fine or by
imprisonment, or both.
(b) Where not otherwise specially provided, the circuit,
chancery, and appellate courts are limited to a fine of
fifty dollars ($50.00), and imprisonment not exceeding
ten (10) days . . . .
4
applicable to the states through the Fourteenth Amendment, provides
that no person shall “be subject for the same offense to be twice
put in jeopardy of life or limb . . . .” Article 1, § 10 of the
Tennessee Constitution provides that “no person shall, for the same
offence, be twice put in jeopardy of life or limb.” As we have
stated many times, three fundamental principles underlie double
jeopardy: (1) protection against a second prosecution after an
acquittal; (2) protection against a second prosecution after
conviction; and (3) protection against multiple punishments for
the same offense. State v. Denton, 938 S.W.2d 373, 378 (Tenn.
1996) (citing, among others, North Carolina v. Pearce, 395 U.S.
711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed.2d 656, 664-65 (1969)).
Under the Tennessee Constitution, this Court inquires
further than do federal courts in determining whether a defendant
has been unconstitutionally subjected to double prosecution for the
same conduct. According to Denton, 938 S.W.2d at 381, resolution
of a double jeopardy issue requires the following:
(1) a Blockburger analysis of the
statutory offenses; (2) an
analysis, guided by the principles
of Duchac, of the evidence used to
prove the offenses; (3) a
consideration of whether there were
multiple victims or discrete acts;
and (4) a comparison of the
purposes of the respective statutes.
None of these steps is
determinative; rather the results of
each must be weighed and considered
in relation to each other.
5
A
Thus, we begin with the first Denton factor, an analysis
under the test established in Blockburger v. United States, 284
U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).4 In
the context of both double punishment and double prosecution cases,
the subject offenses must survive the Blockburger “same-elements”
test in order to satisfy the requirements of the Double Jeopardy
Clause. United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct.
2849, 2856, 125 L. Ed.2d 556, 568 (1993). This test asks “whether
each offense contains an element not contained in the other; if
not, they are the ‘same offence’ and double jeopardy bars
additional punishment and successive prosecution.” Id.5
4
Our Blockburger analysis is guided by United States v. Dixon,
509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed.2d 556 (1993). In Dixon,
the United States Supreme Court held that double jeopardy
protection attaches to nonsummary criminal contempt proceedings in
the same way it attaches to other criminal prosecutions.
Nonsummary contempt proceedings address contemptuous conduct
occurring outside of the court’s presence. As such, the contempt
hearing is usually conducted before a different judge at a date
subsequent to the conduct. In contrast, summary contempt refers to
misbehavior occurring in the presence of the court, which the court
addresses immediately. This court has previously held that
imposing two punishments for the same offense through summary
contempt and a criminal prosecution does not violate double
jeopardy principles. Maples v. State, 565 S.W.2d 202, 203 (Tenn.
1978). The instant case involves nonsummary contempt proceedings.
5
Prior to Dixon, the United States Supreme Court also included
the “same-conduct” test in the double jeopardy analysis: if, to
establish an essential element of an offense, the government will
prove conduct that constitutes another offense for which the
defendant has already been prosecuted, the second prosecution
violates double jeopardy. Grady v. Cortin, 495 U.S. 508, 510, 109
L. Ed.2d 548, 557, 110 S. Ct. 2084, 2087 (1990). The Dixon
majority, however, explicitly overruled Grady, leaving Blockburger
as the sole measure of federal double jeopardy violations. Dixon,
509 U.S. at 704, 113 S. Ct. at 2806, 125 L. Ed.2d at 573. Thus,
courts are no longer required to determine whether both
prosecutions were based on the same underlying conduct.
6
Dixon included appeals by Alvin Dixon and Michael Foster;
their cases were consolidated on appeal. Dixon was released under
an order which specified that the commission of “any criminal
offense” could subject him to prosecution for contempt of court.
While on bond under the release order, he was indicted for a felony
drug offense. This indictment triggered Dixon’s conviction for
criminal contempt of court for violation of the release order.
The other defendant, Foster, consented to a protection
order obtained by his estranged wife. This order required that he
not “molest, assault, or in any manner threaten or physically
abuse” his wife. Alleging several episodes of assaults and
threats, his wife filed three motions to have Foster held in
contempt. The court held a hearing and found him guilty of
criminal contempt for violation of the order. Subsequently, he was
indicted on three counts of threatening to injure, one count of
simple assault, and one count of assault with intent to kill. All
five counts were based on episodes for which he was either
acquitted or convicted in the previous contempt hearing.
On appeal, each defendant contended that prosecution
under his respective indictment constituted a second prosecution
for the same offense--the first having been the contempt
conviction. This procedure, they asserted, violated double
jeopardy principles. Id. at 691-93, 2853-55, 564-66.
A majority of the Dixon Court disagreed about the
application of the Blockburger test to the facts described above.
7
As a result, not one of the five separate approaches in Dixon
gained support sufficient to constitute a majority view.6
Nevertheless, in the matter under review, the Court of
Criminal Appeals adopted Justice Scalia’s approach to the
Blockburger test and concluded that the arson indictment violated
double jeopardy principles. Under Scalia’s approach, the language
of a court order may, but does not always, “incorporate” statutory
offenses into the order. If an offense is deemed to have been
“incorporated,” then application of double jeopardy principles
would permit but one prosecution, which could be for either the
contempt of court or the incorporated offense--whichever one was
first prosecuted.
The rationale is that when the underlying offense is
incorporated into the order, it becomes an element of contempt. As
an element of contempt, the underlying offense involved must be
included in the Blockburger analysis. In effect, the underlying
offense becomes a lesser-included offense of contempt.
Consequently, the underlying offense does not have an element not
6
Justice Scalia, joined by Justice Kennedy, proffered the
first approach, a Blockburger analysis modified to fit the context
of a contempt proceeding followed by a prosecution for the
underlying substantive offense. Chief Justice Rehnquist, joined by
Justice O’Connor and Justice Thomas, proffered the second approach,
a traditional Blockburger analysis. The third opinion, written by
Justice White, and the fifth opinion, written by Justice Souter,
are arguably the least viable approaches in light of the majority
decision to overrule Grady. Both utilized a Grady-type analysis of
the conduct at issue, rather than focusing on the statutory
elements of each offense, and concluded that all the subsequent
prosecutions violated double jeopardy. Writing the fourth opinion
separately, Justice Blackmun found no double jeopardy violations
without actually applying Blockburger.
8
contained in the contempt offense, and subsequent prosection for
the underlying offense violates double jeopardy principles under
Blockburger. Id. at 697-98, 2856-57, 569-70.
As a result of the “incorporation” approach, the outcome
of a case would necessarily depend on the language of the order at
issue, and the consequence of such dependence is not easily
predictable. According to Justice Scalia, the language of the
protective order prohibiting Foster from assaulting or threatening
his wife did not incorporate all criminal statutes concerning
assaults and threats. Id. at 700-02, 2858-59, 570-72. In
contrast, the language of the order prohibiting Dixon from
committing criminal offenses did incorporate all criminal statutes.
Id. at 698, 2857, 569. The result of this approach is not one that
is readily predictable or consistent.
The protective order issued against Winningham enjoined
him from “committing any acts of violence upon petitioner.” This
language varies slightly from the language of the orders issued
against Foster and Dixon. Consequently, application of the
“incorporation” approach to the protection order in the instant
case is unworkable. The problem with the “incorporation” approach
is that no matter how carefully protective orders may be crafted,
they may nevertheless incorporate the elements of a criminal
offense and thereby unwittingly bar subsequent prosecution for the
underlying offense--a result certainly not intended.
9
We find that Chief Justice Rehnquist’s application of
Blockburger is better-reasoned and more easily adaptable to
Tennessee case law. Under this approach, protection orders7 do not
implicitly incorporate the statutory elements of any crime into the
offense of contempt. The Blockburger test focuses not on the terms
of the particular order involved, but on the statutory elements of
contempt in the ordinary sense. Further, the underlying criminal
offense is not viewed as a lesser-included offense because it is
not necessarily included within the statutory elements of contempt.
Id. at 716-20, 2867-68, 579-82 (Rehnquist, C.J., concurring and
dissenting).
Current Tennessee case law parallels Rehnquist’s approach
to the double jeopardy issue created by criminal prosecution
following contempt proceedings. See State v. Wyche, 914 S.W.2d 558,
560-61 (Tenn. Crim. App. 1995); State v. Sammons, 656 S.W.2d 862,
866-69 (Tenn. Crim. App. 1982). In Sammons, the defendant violated
an order awarding custody of his daughter to his former wife. The
violations included his having abducted the daughter several times;
he was cited for contempt of court for this conduct. Subsequently,
he was indicted on charges of kidnaping and burglary based on the
same conduct which resulted in his contempt conviction. Id. at
864-66.
Because of a procedural irregularity, the court was
unable to determine whether a double jeopardy violation had
7
Defendant Dixon was actually subject to a release order.
Dixon, 509 U.S. at 698, 113 S. Ct. at 2857,125 L.Ed.2d at 565.
10
occurred in that case. Id. at 866. Nevertheless, the court
proceeded to find that under Blockburger there would have been no
double jeopardy bar to the subsequent prosecutions. Id. at 868.
The court based its finding on the principle that contempt and
kidnaping statutes serve entirely different purposes:
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 we do not find any
violation of constitutional
principles in imposing punishment
upon an offender under both sets of
statutes.
Id. at 867 (quoting Maples v. State, 565 S.W.2d 202 (Tenn. 1978).
This reasoning represents the prevailing view, as the
Sammons court explained:
The traditional view has long been
that “former jeopardy cannot be
invoked on the ground the same act
is punishable both as a contempt of
court and as a crime.” The reason
underlying the rule is a recognition
that the two offenses are not the
same for constitutional purposes.
Thus, the courts have concluded,
“the fact that an act constituting a
contempt is also criminal and
punishable by indictment or other
method of criminal prosecution does
not deprive the outraged court from
punishing the contempt.”
Id. at 868 (citations omitted). Furthermore, whether the same
conduct can be subject to multiple punishment is a matter of
legislative intent, and the legislature clearly intended that the
11
kidnaping statute and the contempt statute address totally separate
and independent concerns. Id. at 869.
Applying Justice Rehnquist’s approach to the instant
case, we find that the arson indictment does not violate federal
double jeopardy principles. Tennessee Code Annotated § 29-9-102(3)
(1980) provides the elements of contempt: (1) willful
disobedience or resistance and (2) to any lawful writ, process,
order, rule, decree, or command of said courts. The statutory
elements of arson, however, are (1) the knowing damage of any
structure by means of a fire or explosion, and (2) without the
consent of all persons who have a possessory, proprietary, or
security interest therein, or (3) with intent to damage the
structure to collect insurance or for any unlawful purpose. Tenn.
Code Ann. § 39-14-301(a) (1991). Clearly, both statutes contain
elements which the other does not; in fact, they have no common
elements. Thus, application of the Blockburger test strongly
suggests that the legislature intended to impose separate
punishment for each of these offenses. With this conclusion, the
analysis under the Double Jeopardy Clause of the United States
Constitution is now complete, and the arson indictment withstands
federal constitutional scrutiny.
B
Continuing the inquiry under the Double Jeopardy Clause
of the Tennessee Constitution, the next step is the Duchac analysis
of the evidence used to prove each offense. If the same evidence
12
is not required to prove each offense, “then the fact that both
charges relate to, and grow out of, one transaction, does not make
a single offense where two are defined by the statutes.” Denton,
938 S.W.2d at 380 (quoting Duchac v. State, 505 S.W.2d 237, 239
(Tenn. 1973)). The particular facts underlying each case must be
examined to determine whether one conviction will bar the other.
Id. (quoting Duchac, 505 S.W.2d at 240). In Denton, because
defendant Denton’s conduct consisted of a single attack on a single
victim, this Court found that the charges of aggravated assault and
attempted voluntary manslaughter necessarily relied on the same
evidence. Thus, application of Duchac indicated that the two
offenses were the same for double jeopardy purposes. Id. at 382.
In the cause before us, evidence of the following
conduct formed the grounds for contempt: threats to Ms.
Winningham’s life, trespass upon her property, shots fired at her
car, and the setting of the fire that destroyed her house. The
house-burning incident served also as the grounds for the arson
indictment. Thus, in order to prove arson, the State must rely on
evidence which necessarily includes some of the same evidence used
to establish the appellee’s conduct as contemptuous.
We are mindful that evidence in addition to the arsonous
conduct supported the contempt conviction. However, the various
acts upon which the contempt conviction was based are, for purposes
of a Duchac analysis, inseparable. We cannot ascertain whether any
one of the factual findings, including the finding that the
appellee burned his wife’s house, was truly necessary to establish
13
contempt, and we decline to speculate. In sum, the application of
Duchac principles suggests that the two offenses in the case under
review are the same for double jeopardy purposes.
C
We now turn to Denton’s third double jeopardy factor, the
consideration of whether there were different victims or discrete
acts. The charges of contempt and arson both involve the same act
of burning a house. However, the contempt conviction was also
based on other discrete acts, such as threats and trespass.
Second, different victims are involved. In general terms, criminal
conduct offends the State as the sovereign. Also offended by arson
would be the owner of the structure and, perhaps, the community-at-
large. In contrast, “‘[t]he proceeding in contempt is for an
offense against the court as an organ of public justice, and not
for violation of the criminal law.’” Sammons, 656 S.W.2d at 868
(quoting State v. Howell, 69 A. 1057, 1058 (Conn. 1908)) (emphasis
added). Thus, the court and the judicial process are “victims” of
the act of contempt. The fact that different victims are involved
suggests that separate prosecutions would not violate double
jeopardy principles under the Tennessee Constitution.
D
The fourth and final step under Denton requires an
analysis of the purposes sought to be accomplished by the enactment
of each of the two statutes. Here, the arson statute and the
14
contempt statute serve vastly dissimilar purposes. Obviously, the
prohibition against arson is intended to deter the destruction of
property and the endangerment of human life. In marked contrast,
the offense of contempt of court has as its purposes the
maintenance of the integrity of court orders and the vindication of
the court’s authority. Dixon, 509 U.S. at 742, 113 S. Ct. at 2880,
125 L. Ed.2d at 597-98 (Blackmun, J., concurring and dissenting);
Sammons, 656 S.W.2d at 869. So essential is this purpose to the
proper functioning of the court that even erroneous orders must be
obeyed. Id. The fact that the two statutes serve vastly different
purposes suggests that separate prosecutions would not violate
double jeopardy principles under our state constitution.
III
To summarize, through our analyses under Denton we have
found both similarities and significant differences between the
crime of contempt and arson, as presented in the context of this
case. In the final analysis, we conclude that the Denton factors
weigh in favor of allowing the prosecution for arson to follow the
appellee’s contempt conviction. Concededly, because the contempt
conviction and arson indictment both involve the same act of
burning Ms. Winningham’s house, some of the same evidence used to
prove contempt may also be used to prove arson. This merely
underscores the similarity of the two offenses under Duchac.
However, the vast differences in the elements of each statute, the
victims of each statute, and the purposes of each statute
demonstrate the legislature’s intent to allow separate punishment
15
for both arson and contempt. Therefore, we hold that the
prosecution for arson, in the context of the facts and
circumstances here presented, does not violate the Double Jeopardy
Clause of the Tennessee Constitution.
In conclusion, neither the Double Jeopardy Clause of the
United States Constitution nor that of the Tennessee Constitution
bars separate proceedings and punishments for contempt and the
substantive offense underlying the contempt. The judgment of the
Court of Criminal Appeals is reversed, and the indictment for arson
is reinstated. Costs of this cause are taxed against the appellee,
for which execution may issue if necessary.
_________________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.
16
State v. Winningham
Combined Opinion