Opinion
No. C-1104
Decided November 15, 1977. Rehearing denied January 3, 1978.
Father was convicted of nonsupport. The court of appeals, 38 Colo. App. 198, 559 P.2d 243, affirmed and certiorari was granted.
Affirmed
1. WITNESSES — Father — Civil Contempt — Voluntary — Fifth Amendment Not Invoked — Testimony — Admissible — Criminal Nonsupport. Where father, who had the assistance of retained counsel, offered himself and voluntarily took the witness stand in civil contempt proceedings without invoking his Fifth Amendment privilege against self-incrimination to any question asked, including question about his 1973 earnings, held, as such, father was not compelled to be a witness against himself, but having offered himself and having testified, his testimony was admissible as an admission in subsequent criminal prosecution for nonsupport.
2. DIVORCE — Failure to Support — Decree — "Willfully" — Evidence. Evidence was sufficient to prove that defendant "willfully" failed to provide support pursuant to divorce decree support provision.
Certiorari to the Colorado Court of Appeals
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Gene Beville, Deputy, for petitioner.
J. D. MacFarlane, Attorney General, Stuart A. VanMevern, District Attorney, Loren B. Schall, Assistant, for respondent.
We granted certiorari to review the Colorado Court of Appeals opinion in this case, 38 Colo. App. 198, 559 P.2d 243. We now affirm the court of appeals affirmance of the defendant's conviction of nonsupport, a class 5 felony under sections 14-6-101, et seq., C.R.S. 1973.
The decree of February 8, 1977 in a divorce action provided that the defendant should pay $100 a month for the support of his two children. An information was filed in this criminal case on December 27, 1973, charging nonsupport of the children by the defendant during the period of January 4, 1973 through December 13, 1973.
The mother of the children had instituted contempt proceedings in the divorce action for the defendant's nonpayment of child support and attorney's fees. At a hearing held in the contempt matter on April 9, 1974 the defendant testified in his own behalf. During cross-examination at that time he stated that his W-2 form in connection with federal income tax for 1973 showed his income as $8900.
From January 4, 1973 through December 13, 1973 the defendant paid a total of $50 for child support. During the trial, over objection, the court admitted the testimony of the court reporter who acted at the contempt hearing. He related the defendant's testimony at that hearing to the effect that his 1973 W-2 form showed $8900 as income and wages.
I.
We regard the principal assignment of error in the court of appeals ruling to be that the admission of the reporter's testimony violated the defendant's Fifth Amendment privilege against self-incrimination. The defendant has cited authority to the effect that the waiver of privilege in one proceeding does not affect the rights of the accused in another independent proceeding. Among other authorities, the People have cited cases in which the defendant elected to testify in the first trial in which he was charged with a criminal offense, elected not to testify in the second trial of the same offense, and there was admission in the latter trial of his testimony in the first.
Edmonds v. United States, 273 F.2d 108 (D.C. Cir. 1959); United States v. Grunewald, 164 F. Supp. 644 (S.D.N.Y. 1958); United States v. Yates, 107 F. Supp. 408 (S.D. Cal. 1952).
[1] We confine ourselves to the situation of the introduction into evidence in a trial for criminal non-support of an admission by the defendant at an earlier hearing in a contempt proceeding. The contempt proceeding was a part of divorce procedures and involved the same alleged failure to support.
In the contempt proceedings, the defendant was represented by counsel. As stated, he testified in his own behalf and on cross-examination gave the testimony concerning his 1973 income. Irrespective of the fact that criminal nonsupport proceedings were then pending against him, his attorney (and in all probability, the defendant himself) was bound to know that his testimony would be incriminating and that he could claim his Fifth Amendment privilege.
In London v. Patterson, 463 F.2d 95 (9th Cir. 1972), the complaint in the action against the defendant London alleged that he had obtained $740,000 under a scheme to cheat, defraud and unlawfully deprive the plaintiff of the funds; and that they were obtained from the plaintiff under the guise of performing legal services and giving legal advice, all at a time when the defendant was not licensed to practice law. The court stated:
"Under such allegations, assuming the usual state criminal code, London could well have anticipated a possible criminal charge of obtaining money under false pretenses, larceny, criminal fraud or extortion. He was represented by counsel at the deposition where this questioning took place, and appropriate objection could have been made. One being sued civilly for $740,000 upon charges of such a nature, and having retained counsel, could not have been blithely innocent of possible criminal involvement. We cannot view as clearly erroneous the trial court's finding that the appellant gave his testimony in the civil case with realization of the risk involved and of his Fifth Amendment privilege."
We make the same ruling here.
For cases involving use of an admission made in an earlier civil proceeding as evidence in a criminal case, see Ayres v. United States, 193 F.2d 739 (5th Cir. 1952); Czarlinsky v. United States, 54 F.2d 889 (10th Cir.), cert. denied, 285 U.S. 549, 52 S.Ct. 406, 76 L.Ed. 940 (1931); Knoell v. United States, 239 F. 16 (3rd Cir. 1917). See generally, Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); see also, Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976).
We wish to point out that we are not here concerned with a situation in which a person is virtually coerced into testifying in the former proceeding, as was the case in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
[2] In the petition for certiorari the defendant has also presented the argument that there was prosecutorial misconduct in the closing argument of the prosecutor and that the instructions did not adequately define the term "willfully." These issues were passed upon correctly by the court of appeals and we do not discuss them here. Also, there is no merit in the defendant's argument that the evidence was legally insufficient to prove that defendant "willfully" failed to provide support.
Judgment affirmed.
MR. JUSTICE ERICKSON concurs in the result.
MR. JUSTICE CARRIGAN dissents.
MR. CHIEF JUSTICE PRINGLE does not participate.