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NUMBER 13-07-516-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ISAAC SANCHEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion by Justice Benavides
Appellant, Jose Isaac Sanchez, pleaded nolo contendere to the offense of possession of less than one gram of cocaine. Tex. Health & Safety Code Ann. §§ 481.115(b), 481.102(3)(D) (Vernon 2003). The trial court sentenced Sanchez to eighteen months in the Texas Department of Criminal Justice-State Jail Division, suspended the sentence for three years, and placed Sanchez on community supervision. The trial court also imposed a $1,500 fine and suspended Sanchez's driver's license. On appeal, Sanchez argues that the trial court erred by denying his motion to suppress evidence. We affirm.
I. Background
Sanchez filed a motion to suppress cocaine seized from his truck after a dog alerted to its presence during a traffic stop. The trial court heard evidence on the motion, from which the following narrative is derived.
Trooper Clayton Cohea testified at the hearing that on November 14, 2006, Sanchez was driving a tractor-trailer northbound on U.S. Highway 77. Sanchez was delivering a load of limes. Using radar equipment, Cohea determined that Sanchez was traveling at 39 miles per hour in a 35 mile-per-hour zone. Cohea testified that when he "pulled up next to" Sanchez, he was still traveling at 39 miles per hour.
Cohea stated that Highway 77 between Brownsville and Corpus Christi is well-known as a major corridor for illegal activity, including the trafficking of drugs and illegal immigrants. Cohea employed his emergency lights, activating his dashboard camera. According to the time-stamp on the video, the stop occurred at 2:42 a.m. (1) Before speaking with Sanchez, Cohea walked to the front of the vehicle and, using his flashlight, checked the vehicle's registration and inspection stickers located on the windshield.
While Cohea's light was pointed at the windshield, he noticed Sanchez behaving nervously. Cohea saw Sanchez making "furtive movements in the cab" and reaching around, above and below himself, "frantically . . . excitedly, quickly." Sanchez then zipped the curtain behind the driver's seat closed, which seemed unusual to Cohea. Sanchez later told Cohea that he zipped the curtain closed to keep cigarette smoke "from getting into his vehicle."
Cohea approached Sanchez, identified himself, and told Sanchez that he stopped the truck because Sanchez was speeding. After Cohea asked for Sanchez's license, insurance, and bill of lading, Sanchez reached around and looked around quickly in an excited manner. Cohea testified that Sanchez looked as if he were lost and not the way "a normal truck driver would do [sic]."
Sanchez's hands were shaking considerably when he handed the documents to Cohea. Cohea testified that, based on his experience, the shaking was more than the usual nervousness a driver demonstrates when stopped. When Cohea inspected Sanchez's paperwork, he noticed it was not in order. Sanchez had written the wrong date in his logbook. It appeared that he had been "off" for a couple of days.
Cohea and Sanchez walked to the rear of the tractor-trailer, in front of the patrol car. When asked questions, Sanchez would not make eye contact with Cohea. Also, despite the cool November weather and the early hour, Cohea noticed sweat running down Sanchez's forehead and cheeks. Cohea also noticed that an artery in Sanchez's neck was visibly pulsating.
Cohea asked Sanchez what he was transporting. Sanchez responded that he was hauling a load of limes. This was consistent with his paperwork. Cohea then asked Sanchez how much he was being paid for his trip. Sanchez repeated the question to Cohea. Finally, Cohea asked Sanchez if there was anything illegal in his truck. Sanchez then took two steps back from Cohea.
Based on his experience, Cohea felt he had probable cause to search the vehicle, and he asked Sanchez for permission at 2:55 a.m. At first, Sanchez refused. Cohea then called for a drug dog to inspect the vehicle. After the dog was en route from Refugio, Sanchez gave permission to search the trailer but not the cab of the truck. Cohea completed his search of the trailer at some time between 3:08 and 3:15 a.m. Cohea testified that a K9 handler arrived with a dog at 3:30 a.m. The dog alerted to the presence of narcotics at 3:32 a.m. Cohea then discovered cocaine in the cab of the truck.
At the hearing on the motion to suppress, the State played Cohea's dashboard camera video. The first part of the video shows the trailer being pulled over. Next, the video shows Cohea walking to the front of the truck. After several minutes, the video shows Cohea and Sanchez walk to the back of the truck. The video shows that when Cohea started to ask questions, Sanchez tended to look at his paperwork and avoid eye contact with Cohea. When Cohea asked if Sanchez had anything illegal in his truck, the video clearly shows Sanchez step back away from Cohea.
Sanchez was indicted for the offense of possession of a controlled substance. Id. §§ 481.115(b); 481.102(3)(D). Sanchez filed a motion to suppress the cocaine found in the cab of the truck, which he alleges was illegally obtained pursuant to an illegal detention. After a hearing, the trial court denied the motion.
The trial court's order states that it found (1) Sanchez was speeding at the time of the initial stop; (2) Sanchez was operating a commercial vehicle on Highway 77, which is a known corridor for smuggling drugs and undocumented persons into this state; (3) Sanchez frantically or excitedly began searching the cab of the truck when Cohea first approached; (4) Sanchez was shaking and would not make eye contact with Cohea when they moved to the rear of the vehicle; (5) Sanchez's neck was pulsating and he was sweating as Cohea asked to search the vehicle; (6) Sanchez reported that he zipped the curtain to the cab shut in order to "keep cigarette smoke out of the sleeping compartment," yet no one was in the cab smoking; (7) Sanchez incorrectly noted his time off in the log book; and (8) Sanchez stepped back from Cohea when Cohea asked for consent to search the vehicle. The court held that "[e]ach of these items were described as indicators of deception and possible criminal action upon which the officer relied to request permission to search the truck and then to subsequently hold the defendant for some twenty extra minutes awaiting the arrival of a K-9 unit." Accordingly, the court held that ""[t]aken as a whole, the officer had sufficient information, which based on his experience, and all surrounding circumstances justified a temporary detaining of the defendant while a K-9 unit arrived." The court held that "[t]he additional delay caused by waiting for the K-9 unit was approximately twenty minutes," which was not unreasonable. The court denied the motion to suppress.
Sanchez then pleaded nolo contendere to the charges and was adjudged guilty. The trial court sentenced Sanchez to eighteen months' imprisonment, suspended the sentence for three years, and placed Sanchez on community supervision. The trial court also imposed a $1,500 fine. The trial court certified that this case did not involve a plea bargain and that Sanchez had a right to appeal. This appeal ensued.
II. Standard of Review
By a single issue, Sanchez argues that the trial court erred by denying his motion to suppress. In a hearing on a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990); see also Taylor v. State, 916 S.W.2d 680, 681 (Tex. App.-Waco 1996, pet. ref'd). As a general rule, almost total deference is given to a trial court's findings of historical facts, especially when those findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). "The appellate courts . . . should afford the same amount of deference to trial courts' rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." See id. Mixed questions of law and fact not falling within this category are reviewed de novo. Id. Appellate inquiry into the issue of whether probable cause or reasonable suspicion exists for a warrantless search involves a mixed question of law and fact. See id. at 87; see also State v. Arriaga, 5 S.W.3d 804, 805 (Tex. App.-San Antonio 1999, pet. ref'd).
III. Discussion
"Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life." Terry v. Ohio, 392 U.S. 1, 13 (1968). Federal and state courts have recognized three categories of interactions between police and civilians: (1) encounters; (2) investigative detentions; and (3) arrests. Florida v. Royer, 460 U.S. 491, 497-502 (1983); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). Each category involves attendant rights and responsibilities. Francis, 922 S.W.2d at 178.
Encounters are distinguished from investigative detentions and arrests in that during an encounter, a police officer is not required to possess any particular level of suspicion, and the civilian is free to disregard the communication from the officer and leave. See United States v. Mendenhall, 466 U.S. 544, 553-54 (1980); Francis, 922 S.W. 2d at 178. Unlike an encounter, investigative detentions and arrests are "seizures." Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). An investigative detention or stop is a brief detention of a person reasonably suspected of criminal activity to determine his identity or to maintain the status quo momentarily while obtaining more information. See Adams v. Williams, 407 U.S. 143, 146-47 (1972); Terry, 392 U.S. at 21; Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). The Texas Court of Criminal Appeals has described an investigative detention as "when an individual is confronted by a law enforcement officer who, under a display of law enforcement authority, temporarily detains a person for the purposes of an investigation." Johnson, 912 S.W. 2d at 235.
"Consistent with the principles set forth in Terry v. Ohio, . . . a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of 'probable cause.'" Arriaga, 5 S.W.3d at 805. Under Terry, an investigative detention is reasonable, and therefore constitutional, if "(1) the officer's action was justified at the detention's inception; and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place." Haas v. State, 172 S.W.3d 42, 50 -51 (Tex. App.-Waco 2005, pet. ref'd). For the officer's initial action to be justified under the first prong, the State must demonstrate that there "existed specific, articulable facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion." Id. at 51. The officer must "have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to crime." Id.
While a seizure may be reasonable at its inception, its excessive intensity and scope thereafter may render it unreasonable. Id. "Thus, under the second Terry prong, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Id. An initially-justified stop may not be continued past the time needed to resolve the reason for the stop in order to engage in a "fishing expedition for unrelated criminal activity." Id. (quoting Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)). That said, there is no "constitutional stopwatch" on traffic stops. Id. at 51 (quoting United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004)). "An investigative detention following a traffic stop 'may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer's professional judgment, that emerges during the stop.'" Id. at 51-52 (quoting Brigham, 382 F.3d at 512).
We begin with a brief discussion of the circumstances leading up to the moment Cohea first spoke with Sanchez. According to Cohea's testimony and the findings of the trial court, Sanchez was driving 39 miles per hour in a 35 mile-per-hour zone. Cohea determined this by using radar and driving along side the vehicle. In Texas, an officer may lawfully stop and detain a person for a traffic violation, including speeding and failure to control speed. See Tex. Trans. Code Ann. § 545.351 (Vernon 1999); Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.-Houston [14th Dist.] 2000, pet ref'd). It is uncontested that Cohea was justified in initially detaining Sanchez.
While a detention may last no longer than necessary to effectuate the purpose of an initial stop, Texas courts have held that a law enforcement officer effecting a traffic stop is entitled to conduct a brief and minimally intrusive investigation. Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.-Waco 2003, pet. ref'd). For example, the officer may (1) require the detainee to identify himself; (2) require the detainee to produce a valid driver's license and proof of insurance; (3) check for outstanding warrants; (4) ask about the driver's destination and purpose for the trip; and (5) if justified by safety and security concerns, direct the driver to step out from vehicle. Id.
Cohea was, therefore, justified in briefly detaining Sanchez to conduct this sort of minimal investigation. See id. The next question, therefore, is whether Cohea was justified in detaining Sanchez beyond this minimal investigation. "If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified." Haas, 172 S.W.3d at 52. An officer's discovery of information during a lawful detention may form the basis of a reasonable suspicion that another offense is being committed, and further detention may be justified. Id. "More specifically, if the valid traffic stop evolves into an investigative detention of other criminal activity (such as transporting illegal drugs) so that a canine sniff can take place, reasonable suspicion is required to prolong the detention." Id.
Sanchez testified that he observed the following actions, which led him to a reasonable suspicion that Sanchez might be transporting drugs. First, while Cohea's light was pointed at the windshield, and before he spoke with Sanchez, he noticed Sanchez behaving nervously. Cohea saw Sanchez making "furtive movements in the cab" and reaching around, above and below himself, "frantically . . . excitedly, quickly."
Sanchez argues that this Court should not rely on the trial court's finding of fact that he "frantically or excitedly search[ed] for something in the cab of the truck" because Cohea's testimony was impeached at the hearing. Sanchez's counsel pointed out that Cohea did not mention this fact in his offense report. Sanchez, however, ignores the standard of review--we must give almost total deference to the trial court's findings of historical fact. Guzman, 955 S.W.2d at 89. Accordingly, we take it as established that Sanchez frantically searched the cab of his truck. Id.
Second, Cohea viewed Sanchez through the front windshield acting in a way Cohea deemed to be suspicious, including zipping closed the curtain between the seats in the cab and the sleeper portion of the cab. Cohea stated that Sanchez's behavior was unusual in his experience, and commented that he had stopped "a lot of trucks." Cohea testified that Sanchez provided the implausible explanation that he was trying to keep smoke out of the cab--when no one was smoking.
Third, Sanchez's hands were shaking considerably when he handed the documents to Cohea. Cohea testified that, based on his experience, the shaking was more than the usual nervousness a driver demonstrates when stopped. When Cohea inspected Sanchez's paperwork, he noticed it was not in order. Sanchez had written the wrong date in his logbook. It appeared that he had been "off" for a couple of days. Cohea testified that at the moment Sanchez handed him the paperwork, he became suspicious that Sanchez was engaged in some criminal activity. When asked if he was "already suspecting [that Sanchez] was carrying dope," Cohea responded: "From when he handed me the driver's license, yes, sir. My indicator is when a person--as soon as I see a hand shaking, my threat levels go up . . . . There is something suspicious."
Fourth, Cohea and Sanchez walked to the rear of the tractor-trailer, in front of the patrol car. When asked questions, Sanchez would not make eye contact with Cohea. Also, despite the cool November weather and the early hour, Cohea noticed sweat running down Sanchez's forehead and cheeks. Cohea also noticed that an artery in Sanchez's neck was visibly pulsating. Cohea then asked Sanchez how much he was being paid for his trip. Sanchez repeated the question to Cohea. Cohea asked Sanchez if there was anything illegal in his truck, and Sanchez then took two steps back from Cohea. Cohea testified about his perceptions of Sanchez's non-verbal cues while in the cab and while behind the tractor-trailer, which is supported by the dashboard camera video. (2)
Finally, Cohea testified that Hwy 77 is a known corridor for smuggling drugs and illegal aliens.
Sanchez argues that nervousness alone is not enough to satisfy the "reasonable suspicion" standard. We agree. However, extreme nervousness, coupled with implausible information from the detainee, can raise a reasonable suspicion. Haas, 172 S.W.3d at 54. Additionally, while an officer's knowledge that criminal activity is frequent in the area is not, by itself, enough to support a reasonable suspicion, we must consider the totality of the circumstances. See Goodwin v. State, 799 S.W.2d 719, 727 (Tex. Crim. App. 1990) (holding officer's "observations of suspicious activity by the occupants of the car before and after the stop, combined with his knowledge of the area and the frequency of burglaries in the neighborhood, and the reasonable inferences to be drawn from the appellant's and his companions' behavior, justified a brief detention of the occupants of the car for further investigation"). An officer's knowledge that the area in which a defendant is apprehended is a "high crime area" is a factor that may be taken into account along with the rest of the circumstances. See United States v. Arvizu, 534 U.S. 266, 277 (2002) (holding that under totality of circumstances, reasonable suspicion existed, and considering border patrol agent's knowledge that road traveled by defendant was commonly used by drug smugglers to avoid border patrol); Goodwin, 799 S.W.2d at 727; Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.-Houston [14th Dist] 1991, pet. ref'd) (considering fact that defendant was "apprehended in a residential neighborhood that was known for its very high crime and its high narcotics trafficking"); Ortega v. State, No. 14-97-01084-CR, 1999 WL 717636, at *2 (Tex. App.-Houston [14th Dist.] Sept. 16, 1999, pet. ref'd) (not designated for publication) (holding officer's knowledge that hotel where defendant was apprehended was "a notorious location for illegal narcotics activity").
We do not hold today that extreme nervousness and knowledge that the area is a high crime area, (3) without more, is enough to support a reasonable suspicion. But in this case, there is more. Cohea also observed that Sanchez exhibited erratic behavior and provided an implausible story about why he zipped the curtain. All these facts, considered together, supported Cohea's reasonable suspicion to continue his investigative detention under a new justification.
Furthermore, Cohea's detention of Sanchez for thirty-seven minutes after Cohea completed his initial investigation of the traffic violation, in order to wait for a drug dog to verify that no drugs were contained in the truck's cabin, was not unreasonable. An officer may temporarily detain an automobile after a routine traffic stop if he has a reasonable suspicion that it contains illegal drugs, in order to allow an olfactory inspection by a trained police dog. Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.-Austin 2000, pet. ref'd) (citing Crockett v. State, 803 S.W.2d 308, 310-11 (Tex. Crim. App. 1991)). In United States v. Sharpe, the Supreme Court declined to establish a per se rule that a specific length of time for a Terry stop is too long. 470 U.S. 675, 687-88 (1985); see Kothe v. State, 152 S.W.3d 54, 64-65 (Tex. Crim. App. 2004). Moreover, the length of the stop is not the end of the inquiry:
While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.
Kothe, 152 S.W. 3d at 64-65 (citations omitted). "The propriety of the duration of an investigative detention is determined by assessing whether an officer diligently pursued a means of investigation that was likely to dispel or confirm his suspicion quickly." Josey v. State, 981 S.W.2d 831, 840 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd).
In the present case, the trial court found that "[t]aken as a whole, [Cohea] had sufficient information, which based on his experience, and all surrounding circumstances justified a temporary detaining of [Sanchez] while a K-9 unit arrived." Once Cohea developed a reasonable suspicion, he immediately called for the K-9 unit. Cohea did not unreasonably delay in calling for the K-9 unit, and the K-9 unit was required to travel from Refugio. Based on the evidence contained in the record, the thirty-seven minutes from the time Cohea finished his investigation of the traffic violation was not unreasonable. Id. (90-minute detention to wait for drug dog reasonable); see also Strauss, 121 S.W.3d at 492 (75-minute detention reasonable when officer immediately called for K-9 unit, which was coming from an adjoining county).
Once the trained police dog alerted police that the cab may contain drugs, Cohea had probable cause to search the cab of the truck. "It is well-settled that a trained narcotics dog's positive alert for drugs is sufficient to establish probable cause for an arrest." $217,590.00 in U.S. Currency v. State, 54 S.W.3d 918, 923 (Tex. App.-Corpus Christi 2001, no pet.) (citing De Jesus v. State, 917 S.W.2d 458, 461 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd); Bunts v. State, 881 S.W.2d 447, 450 (Tex. App.-El Paso 1994, pet. ref'd); Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.-Houston [1st Dist.] 1987, pet. ref'd)).
Because Cohea articulated facts supporting his reasonable suspicion of illegal activity, the continued detention was not unreasonable. The subsequent search and arrest was supported by probable cause. Therefore, the trial court did not err in denying appellant's motion to suppress. We overrule Sanchez's sole issue on appeal.
IV. Conclusion
Having overruled appellant's sole issue on appeal, we affirm.
__________________________
GINA M. BENAVIDES
Justice
Do not publish.
See Tex. R. App. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 29th day of August, 2008.
1. The video actually notes the hour as 1:42 a.m., but the officer clarified that the time was an hour behind because it had not been adjusted to a daylight savings time change.
2. The dashboard camera video was not initially included in the appellate record; however, we requested it and have viewed the video. See Amador v. State, 221 S.W.3d 666, 673-74 (Tex. Crim. App. 2007) (requesting photograph displayed to jury to be forwarded to court, even though not included in original record,
because it was treated by the court and parties as part of the evidence in the case).
3. Cohea's testimony that the stretch of Highway 77 between Brownsville and Corpus Christi is a major corridor for illegal activity is a tenuous factor in establishing reasonable suspicion. Courts that have utilized location as a factor, by deeming the location as a "high crime area," have typically pointed to a neighborhood or a road with a more limited geographic scope.
Sunday, August 31, 2008
Throw a fit? q v State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as .......l
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MARIA VERA, Appellant, THE STATE OF TEXAS, Appellee.
Appellant, Maria Vela, was convicted of driving while intoxicated (DWI) (1) in trial cause number 35878-1 (appellate cause number 13-05-00169). Appellant was also convicted of possessing less than two ounces of marihuana (2) in trial cause number 35878-2 (appellate cause number 13-05-00170-CR). The trial court assessed punishment for the DWI conviction, which was enhanced, (3) at 365 days' imprisonment. The term of imprisonment was suspended for one year, during which time appellant was placed on community supervision. The trial court also imposed a $350.00 fine and $328.50 in court costs. The trial court assessed punishment for the possession-of-marihuana conviction at 180 days' imprisonment. The term of imprisonment was suspended for two years, during which time appellant was placed on community supervision. The trial court also imposed a $250.00 fine. In two issues, appellant argues that (1) her convictions are supported by legally and factually insufficient evidence, and (2) her punishment is disproportionate to the seriousness of her crimes, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We affirm. I. Legal & Factual Sufficiency A. Standards of Review In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (4) In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. (5) We then determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. (6) We will not reverse a case on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. (7) The fact-finder is the exclusive judge of the witnesses' credibility and of the weight to be given to their testimony. (8) B. Trial Evidence The State's case against appellant was built on the testimony of Kingsville Police Department Officers Henry Cantu and Herman Cantu. Officer Henry Cantu testified that on April 17, 2004, at approximately 2:20 a.m., he witnessed appellant run a stop sign while operating a motor vehicle. After appellant failed to immediately stop her vehicle in response to the flashing lights on his patrol vehicle, Officer Henry Cantu turned on his vehicle's siren. Appellant then stopped her vehicle in front of a residence, which was her home. Appellant immediately exited the vehicle and began walking towards the residence. Officer Henry Cantu interpreted appellant's conduct as an attempt to evade him; he commanded appellant to "stop," and appellant then turned around and walked towards him. He then immediately placed appellant in handcuffs and put her in the back of his patrol vehicle. Officer Henry Cantu testified that (1) appellant admitted to having a beer or two; (2) her speech was slightly slurred; (3) her eyes were red and bloodshot; (4) her breath smelled of alcohol; (5) she failed to give straightforward answers to questions asked; (5) he was unable to completely perform a horizontal gaze nystagmus test on appellant because he could not get her to concentrate on the tip of his pen; and (6) she refused to take a breathalyzer test. He testified that these factual observances were indicators of intoxication, and he expressed his belief that appellant was intoxicated. Officer Henry Cantu further testified that (1) the vehicle appellant was seen operating was registered under her name; (2) a usable quantity of marihuana was found in the ashtray of her vehicle; (3) the vehicle emitted an odor of marihuana; (4) appellant stated that the marihuana belonged to a friend, and she asked for leniency in exchange for her providing the friend's name; and (5) the vehicle contained a second occupant, Daniel Trevino, who denied ownership of the marihuana. Officer Herman Cantu, who arrived on the scene shortly after appellant's vehicle was pulled over, testified that (1) he found marihuana cigarettes in appellant's vehicle, commonly referred to as "roaches"; (2) he smelled a fresh odor of burned marihuana in the vehicle; (3) the amount of marihuana was a usable quantity; and (4) appellant's hands did not smell of marihuana, which is typically an effective means of telling whether one has recently used marihuana. Daniel Trevino, who was in appellant's vehicle at the time she was stopped by Officer Henry Cantu, testified in appellant's behalf. Trevino testified that (1) he was currently dating appellant and that he had been dating her at the time of her arrest; (2) appellant had not had anything to drink on the night in question; and (3) he did not know how the marihuana discovered by the officers came to be in appellant's vehicle. Dr. Jose M. Ugarte also testified for appellant. He testified that (1) he had been appellant's medical doctor since 1993; (2) appellant suffered from systemic lupus erythematosus, fibromyalgia, and chronic depression, for which she received medication; and (3) these ailments, along with the medication required for proper treatment, can affect a person's speech and behavior. C. Sufficiency of Evidence Regarding DWI Conviction In order to convict appellant of driving while intoxicated, the State had to prove beyond a reasonable doubt that appellant operated a motor vehicle in a public place while intoxicated. (9) On appeal, appellant challenges the sufficiency of the evidence proving that she was intoxicated. Under the Texas Penal Code, the term "intoxicated" means (1) "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body," or (2) "having an alcohol concentration of 0.08 or more." (10) Viewed in a light most favorable to the verdict, we find that the aforementioned testimony of Officer Henry Cantu constitutes legally sufficient evidence of appellant's intoxication. (11) His observations regarding appellant's slurred speech, her bloodshot eyes, and an alcoholic odor on appellant's breath, all constitute evidence of intoxication, (12) as does appellant's refusal to take a breathalyzer test. (13) When viewed in a neutral light, we cannot say that the jury was not rationally justified in finding appellant guilty beyond a reasonable doubt. The jury was free to reject Trevino's testimony that appellant did not drink on the night in question; furthermore, they were free to conclude that appellant's behavior was the product of intoxication, rather then a product of her physical ailments or medication. D. Sufficiency of Evidence Regarding Possession of Marihuana Conviction In order to convict appellant of possession of marihuana, the State had to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed a usable quantity of marihuana. (14) On appeal, appellant asserts that the State did not prove that the substance found in her vehicle was marihuana. Appellant specifically asserts that "the [S]tate never offered a lab test result indicating, in fact, that the alleged 'roaches' found in the ash tray of [her] car contained marijuana. All that was offered by the [S]tate was the testimony of the officers as to what these 'roaches' may have contained." In addition to Officers Henry Cantu and Herman Cantu stating that, based on their experience, they believed that the cigarettes found in appellant's vehicle contained marihuana, Officer Henry Cantu also testified that appellant openly admitted to him that the cigarettes contained marihuana. He testified that appellant told him that the marihuana belonged to a friend, and she asked for leniency in exchange for her providing the friend's name. Appellant never attempted to refute this testimony. Accordingly, we find that the aforementioned testimony constitutes legally and factually sufficient evidence that the substance found in appellant's possession was marihuana. II. Disproportionate Punishment Texas courts have consistently held that even constitutional errors involving disproportionate sentences can be waived by failing to object at trial. (15) Here, the record reflects that appellant did not object to the imposition of punishment at trial nor did she raise the complaint in a motion for new trial. (16) Accordingly, we conclude that appellant failed to preserve this complaint for review. In any event, the punishment does not violate constitutional provisions. The Eighth Amendment does not require strict proportionality between the crime and the sentence; rather, it forbids only extreme sentences that are grossly disproportionate. (17) Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive. (18) The punishments assessed in the instant case were within the statutorily permissible range. Thus, appellant's punishments were not grossly disproportionate to the offenses. (19) Because appellant has failed to preserve her complaint on appeal, and because her punishment fell within the limits prescribed by a valid statute, we overrule appellant's final issue. III. Conclusion We affirm the trial court's judgments.
LINDA REYNA YAÑEZ, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 29th day of August, 2008. 1. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). 2. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (Vernon 2007). 3. See Tex. Penal Code Ann. § 49.09(a) (Vernon 2003). 4. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). 5. See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). 6. Id. at 415. 7. Id. at 417. 8. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). 9. See Tex. Penal Code Ann. § 49.04. 10. Id. § 49.01 (Vernon 2003). 11. See Little v. State, 853 S.W.2d 179, 183 (Tex. App.-Corpus Christi 1993, no pet.) ("The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication."). 12. Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim. App. 1985). 13. See Hartman v. State, 198 S.W.3d 829, 834 (Tex. App.-Corpus Christi 2006, pet. dism'd). 14. See Tex. Health & Safety Code Ann. § 481.121(a). 15. See Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995) (citing Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (failure to raise Eighth Amendment objection at trial waives any such claim on appeal)); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.-Corpus Christi 1989, pet. ref'd) (holding that failure to object to a sentence as cruel and unusual forfeits error). 16. See Tex. R. App. P. 33.1(a). 17. See Ewing v. California, 538 U.S. 11, 23 (2003). 18. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.-Corpus Christi 2005, pet. ref'd); see also Escochea v. State, 139 S.W.3d 67, 80 (Tex. App.-Corpus Christi 2004, no pet.). 19. See Ewing, 538 U.S. at 23. | |
Sunday, August 17, 2008
Breedloves’ desire for this information is understandable, this issue should be resolved rather quickly and easily without the involvement of the ci..
THE STATE OF SOUTH CAROLINA
In The Supreme Court
An L. Grosshuesch, Guardian and Conservator of Eleanor A. Breedlove, and An L. Grosshuesch, Guardian and Conservator of Bernard H. Breedlove, Respondents/Appellants,
v.
Lisa Cramer, Nathan Cramer, Lawrence H. Gray, Jr., Duane Marie Gray, and Sweetgrass Land Company, LLC, Defendants,
of whom Lisa Cramer is Appellant/Respondent.
and
Ex Parte: Charles B. Macloskie, Appellant,
In Re: An L. Grosshuesch, Guardian and Conservator of Eleanor A. Breedlove, and An L. Grosshuesch, Guardian and Conservator of Bernard H. Breedlove, Respondents,
v.
Lisa Cramer, Nathan Cramer, Lawrence H. Gray, Jr., Duane Marie Gray, and Sweetgrass Land Company, LLC, Defendants.
and
An L. Grosshuesch, Guardian and Conservator of Eleanor A. Breedlove, and An L. Grosshuesch, Guardian and Conservator of Bernard H. Breedlove, Appellants,
v.
Lisa Cramer, Nathan Cramer, Lawrence H. Gray, Jr., Daune Marie Gray, and Sweetgrass Land Company, LLC, Respondents.
and
Ex Parte: Lionel S. Lofton, Appellant,
In Re: An L. Grosshuesch, Guardian and Conservator of Eleanor A. Breedlove, and An L. Grosshuesch, Guardian and Conservator of Bernard H. Breedlove, Respondents,
v.
Lisa Cramer, Nathan Cramer, Lawrence H. Gray, Jr., Duane Marie Gray, and Sweetgrass Land Company, LLC, Defendants.
Appeals from Beaufort and Charleston Counties
Curtis L. Coltrane, Circuit Court Judge
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 26453
Heard January 9, 2008 – Filed March 10, 2008
VACATED IN PART, REVERSED IN PART, DISMISSED IN PART
Lionel S. Lofton and V. Lynn Lofton, both of Lofton & Lofton, of Charleston, and Charles B. Macloskie, of the Macloskie Law Firm, of Beaufort, for Appellant/Respondent Lisa Cramer and for Appellants Lofton and Macloskie.
Richard S. Rosen and Andrew D. Gowdown, both of Rosen, Rosen & Hagood, of Charleston, for Respondents/Appellants.
CHIEF JUSTICE TOAL: These consolidated appeals relate to several discovery orders in a civil action. Bernard and Eleanor Breedlove initiated the underlying lawsuit seeking to set aside several transfers of assets to Lisa and Nathan Cramer on the grounds of fraud and undue influence. The parties contest several issues on appeal, but the foremost is whether the trial court erred in imposing discovery-related sanctions on Lisa Cramer. The Cramers argue that the trial court should not have imposed sanctions, and the Breedloves argue that the trial court should have imposed more. Additionally, the Cramers’ attorneys argue that the trial court erred in requiring them to produce documents and information relating to the location of assets allegedly transferred from the Breedloves, and the Breedloves argue that the trial court erred in issuing a protective order making discovery in the case confidential.
Though these issues are couched as different types of discovery disputes, they deal primarily with the Cramers’ invocation of the privilege against self-incrimination found in the Fifth Amendment to the United States Constitution. Because we find that the trial court did not apply the proper standard when judging the Cramers’ invocation of the Fifth Amendment, we vacate the trial court’s imposition of discovery-related sanctions on Lisa Cramer. Similarly, we find that the trial court erred in ordering the Cramers’ attorneys to produce documents and information which relate to their representation of the Cramers. The remaining questions on appeal, specifically, whether the trial court erred in declining to impose additional sanctions on Lisa Cramer and whether the trial court erred in issuing a protective order, are not immediately appealable and are therefore dismissed.
Factual/Procedural Background
The Breedloves are elderly individuals with substantial assets who reside in Hilton Head, South Carolina. In their complaint, the Breedloves alleged that they became acquainted with Lisa Cramer through her employment at the Breedloves’ bank, and that after learning of the Breedloves’ substantial wealth, the Cramers conspired to develop an enduring relationship with the Breedloves and to exploit that relationship for financial gain. The Breedloves alleged that over time, they transferred several million dollars worth of real estate and liquid assets to the Cramers. During the time of these transfers, the Breedloves were allegedly suffering from some degree of dementia related to their advanced age. The Beaufort County Probate Court appointed An L. Grosshuesch as guardian and conservator for the Breedloves after the Breedloves commenced this lawsuit.
This appeal represents the third time this Court has addressed issues arising out of this litigation. As their first step in defending the lawsuit, the Cramers requested that the trial court stay the suit pending the resolution of the criminal actions filed against them relating to these conveyances. The trial court denied this request, and we dismissed the Cramers’ appeal from the denial of the stay on the grounds that the trial court’s order was interlocutory, not affecting the merits, and thus, not immediately appealable.
Next, this Court addressed the trial court’s denial of the Breedloves’ request for a preliminary injunction. The Breedloves sought to prevent the Cramers and others acting on the Cramers’ behalf from transferring or otherwise disposing of the assets at issue. In so seeking, the Breedloves filed lis pendens against the subject real estate and sought a preliminary injunction preventing the Cramers from exercising control over some of the accounts and assets in dispute. In seeking the injunction, the specific focus of the Breedloves’ concern was a Merrill Lynch account which they alleged initially contained $2 million, but has been almost completely depleted. The trial court denied the Breedloves’ request for an injunction, and this Court reversed. Grosshuesch v. Cramer, 367 S.C. 1, 623 S.E.2d 833 (2005).
The consolidated appeals now at issue deal with several orders related to discovery. Over the course of this litigation, the Breedloves sought extensive discovery relating to the amount of assets the Cramers received from the Breedloves, expenses the Cramers appeared to authorize on behalf of the Breedloves, and the present location of all assets acquired from the Breedloves. When the Breedloves received no response to their discovery requests, they sought and were granted an order compelling Lisa Cramer to respond to discovery.[1]
The Cramers again entered no substantive response to the vast amount of Breedloves’ discovery, answering only that any response to discovery would be deemed a waiver of rights secured by the Fifth Amendment to the United States Constitution and by Article I, Section 12 of the South Carolina Constitution. After receiving what were in their view insufficient responses to their discovery requests, the Breedloves sought an order of contempt and sanctions as to Lisa Cramer. The trial court ordered Lisa Cramer to fully respond to discovery and held her in contempt, but imposed no sanctions. In this order, the trial court additionally prohibited the Breedloves from disseminating any information acquired in discovery to anyone not directly connected with this litigation. The purpose of this protective order, in the trial court’s view, was to guard the integrity of the case and to prevent any criminal harm to the Cramers from their discovery responses. Lisa Cramer appealed from her finding of contempt, and the Breedloves cross-appealed the imposition of the protective order.
Although the Cramers’ depositions followed this contempt order, the Breedloves’ quest for information fared no better. Ultimately, the trial court entertained a second motion for contempt and sanctions arising out of Lisa Cramer’s essentially blanket refusal to answer questions in her deposition. The trial court denied this request for contempt and sanctions, and the Breedloves appealed.
Roughly around the same time they served their initial discovery requests, the Breedloves issued subpoenas duces tecum to the Cramers’ attorneys. The subpoenas requested that the attorneys produce documents evidencing any fees they had received from the Cramers, withdrawals from the $2 million Merrill Lynch account, and transfers of cash to the Cramers from the Breedloves. The trial court denied the attorneys’ requests to quash the subpoenas and ultimately held the attorneys in contempt. Both attorneys appealed.
As a result of the parties’ prolific appealing at each stage of litigation, the court of appeals had several appeals related to this litigation pending by early 2007. Specifically, the court of appeals had the appeal and cross-appeal relating to the order holding Lisa Cramer in contempt for her initial discovery responses; the Breedloves’ appeal of the order declining to hold Lisa Cramer in contempt for her deposition conduct; and the Cramers’ attorneys’ appeals from their contempt orders. This Court issued an order certifying and consolidating all of the pending appeals, and the parties present the following issues for review:
| I. | Did the trial court err in holding Lisa Cramer in contempt for failing to respond to discovery? (Lisa Cramer’s appeal) |
| II. | Did the trial court err in finding the Cramers’ attorneys in contempt for failing to comply with the subpoenas duces tecum? (The attorneys’ appeals) |
| III. | Did the trial court err in issuing a protective order prohibiting the Breedloves from disseminating any information or discovery responses to anyone not directly connected with this litigation? (the Breedloves’ cross-appeal) |
| IV. | Did the trial court err in denying the Breedloves’ second request for contempt and sanctions as to Lisa Cramer? (the Breedloves’ appeal) |
Law/Analysis
I. The Order of Contempt
Lisa Cramer argues that the trial court erred in holding her in contempt for failing to respond to discovery. We agree.
Both the Fifth Amendment to the United States Constitution and Article I, Section 12 of the South Carolina Constitution declare that no person shall be compelled to be a witness against himself in any criminal case. In interpreting the Fifth Amendment, the privilege against self-incrimination has been explained in practical terms as an assurance that an individual will not be compelled to produce evidence or information which may be used against him in a later criminal proceeding. Maness v. Meyers, 419 U.S. 449, 461 (1975). The settled law provides that the privilege extends not only to answers that would themselves support a criminal conviction, but also to answers furnishing a link in the chain of evidence needed to prosecute an individual. Hoffman v. United States, 341 U.S. 479, 486 (1951).
That a party has invoked the privilege against self-incrimination, however, does not end the matter. Instead, it is well-settled that an invocation of the privilege is confined to instances where a person has reasonable cause to apprehend danger from his answer. Id. Indeed:
The witness is not exonerated from answering merely because he declares that in doing so he [will] incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified . . . and to require him to answer if “it clearly appears to the court that he is mistaken.”
Id. (citing Temple v. Commonwealth, 1880, 75 Va. 892, 899); see also First Union Nat’l Bank v. First Citizens Bank & Trust Co. of S.C., 346 S.C. 462, 467, 551 S.E.2d 301, 303 (Ct. App. 2001).
The Fourth Circuit has instructed that a court judging the invocation of the privilege against self-incrimination asks first whether the information is incriminating in nature, and second, whether there is a sufficient possibility of criminal prosecution to trigger the privilege. United States v. Sharp, 920 F.2d 1167, 1170-71 (4th Cir. 1990). In determining whether the information is incriminating, the Sharp court recognized that at least two categories of potentially incriminating questions exist. First, there are questions whose incriminating nature is evident on the question’s face in light of the question asked and the surrounding circumstances. Id. at 1170. Second, there are questions which though not overtly incriminating, can be shown to be incriminating through further contextual proof. Id. It is with these principles in mind that we turn to an analysis of the trial court’s order holding Lisa Cramer in contempt.[2]
When comparing this analytical rubric to the trial court’s order of contempt, it is clear that the order does not apply the correct standard when examining Lisa Cramer’s invocation of the constitutional privilege. The trial court opined that the privilege against self-incrimination was completely inapplicable in the instant case for two reasons. First, the trial court noted that the Cramers have maintained that the transfers from the Breedloves were gifts. Second, the trial court emphasized that the Cramers have unequivocally stated that they intend on testifying at their criminal trial. The Breedloves rely heavily on these justifications in their argument before this Court, but although these facts are extremely odd, they are irrelevant to constitutional privilege analysis.
Dealing first with the fact that the Cramers have maintained that the transfers from the Breedloves were gifts, the question when judging the application of the privilege against self-incrimination does not revolve around what defenses a party has asserted in a civil action, but whether there is a reasonable possibility that requiring a party to answer a certain question would provide information that could be used against the party in a criminal proceeding or would lead to the discovery of such information. Hoffman, 341 U.S. at 486-87; Sharp, 920 F.2d at 1170. The Cramers are entitled to assert that they did not engage in any criminal conduct over the course of their relationship with the Breedloves, and this entitlement applies with equal force in both this action and the pending criminal action. Just as they would not lose the protections against self-incrimination by entering a criminal plea of not-guilty, so too does their assertion in this action that these transactions were arms-length have no impact on the analysis of whether the Cramers have a reasonable fear that their answers provided in discovery might be used against them in a criminal proceeding.
The trial court’s speculation about whether the Cramers would testify at their criminal trial suffers from a similarly fatal flaw. We are aware of no authority providing that a party waives the application of the privilege against self-incrimination by stating that they ultimately intend to testify at trial. Courts employ a high bar when judging the waiver of constitutional rights. See Brady v. United States, 397 U.S. 742, 748 (1970) (noting that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). In this vein, we think that a pronouncement that one intends to waive a constitutional right in the future does not amount to a waiver of that right. Indeed, it stands to reason that if one says he intends to waive a right in the future, he is invoking that right in the present.[3]
What then were the circumstances available for the trial court to consider in making its decision in this case? The record reflects that the trial court possessed the following information: (1) that the Breedloves sued the Cramers seeking to set aside several transfers of assets; (2) that the Breedloves are seeking discovery as to a great deal of information, some of which deals directly with their relationship to the Cramers and their transfers of assets to the Cramers; and (3) that the Cramers have been involved in a criminal proceeding which relates to their receipt of assets from the Breedloves since before the inception of this civil action. Given this information, the second step of the privilege analysis is the easy assessment. It is clear that a criminal prosecution of the Cramers is not an event which might occur sometime in the future – it is a present reality.
The more difficult question, in our opinion, is the examination of the nature of the questions asked in this case. It is arguable, we think, that any discovery directed at transfers of assets from the Breedloves to the Cramers might be incriminating on its face. It would seem that such discovery directly seeks the information and transactions which are at the heart of the pending criminal proceeding involving the Cramers. Accordingly, it would appear probable that the Cramers could have a reasonable fear that their answers to questions focused on this information would ultimately be used against them in the pending criminal proceeding.
But not all of the Breedloves’ focus in discovery was so directed. During discovery, the Breedloves sought information related to the Cramers’ marriage, their employment history, and other areas which do not implicate the Cramers’ relationship with the Breedloves or transfers of asserts over the course of that relationship. Though it is possible that the discovery of information relating to these subjects could implicate the privilege against self-incrimination, that is not the only possibility. Indeed, when judging the invocation of the privilege in response to these and similar questions, it might have been reasonable for the trial court to ask for more information in order to effectively judge whether there was a reasonable possibility that answers to these questions would provide incriminating information. Lisa Cramer offered the trial court nothing more, and for this reason, a passage in Hoffman seems to ring true:
The witness here failed to give the judge any information which would allow the latter to rule intelligently on the claim of privilege for the witness simply refused to say anything and gave no facts to show why he refused to say anything.
341 U.S. at 484.
As this analysis illustrates, the fault for swaying the trial court’s attention from the proper standard is shared among the parties. For while we have outlined why the reasons offered by the Breedloves do not measure up, we must also reject at least part of the Cramers’ argument relating to the constitutional privilege. The Cramers have maintained that once a witness invokes the privilege against self-incrimination, that invocation is due a significant degree of deference and the court may not inquire further. Of course, the principle of deference to a witness’s fear of self-incrimination is included in the recognition that a court may only require a witness to answer a question when “it clearly appears to the court that he is mistaken,” and that “if the witness, upon interposing his claim, were required to prove the hazard [of self-incrimination] in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee.” Hoffman, 341 U.S. at 486. But with these principles of deference in mind, courts have nonetheless instructed that the question of application of the privilege is one for the court, and that the guiding principle in a self-incrimination inquiry is the objective reasonableness of a witness’s claimed fear of future prosecution. Sharp, 920 F.2d at 1171. In this case, the Cramers correctly state that the witness’s fear of self-incrimination is due some deference, but they carry this principle too far. The final word on the application of the constitutional privilege is one for the court and the court alone.[4]
As a housekeeping matter, the parties appear to have exhibited a great deal of unnecessary confusion regarding the injunction that this Court previously issued. Specifically, the parties have expressed confusion regarding a footnote in the Court’s opinion which provides that “[s]ince possession of the assets is not at issue in either of the Cramer’s pending legal matters, we do not view the Fifth Amendment as an impediment to the issuance of a preliminary injunction.” Grosshuesch v. Cramer, 367 S.C. at 6 n.4, 623 S.E.2d at 835 n.4. The parties have, at times, asserted the position that this footnote represents a pronouncement from this Court on the applicability of the Fifth Amendment.
We do not understand the source of the parties’ confusion. An injunction is binding upon the parties to an action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order. Rule 65(d), SCRCP. The clear import of the Court’s footnote is that because the Cramers do not contest that they possess the property in dispute, there is no reason to doubt that the injunction will be effective. Any attempt to read more into the injunction relies upon verbiage that is not there.[5]
In sum, the tortured procedural history of this case illustrates that debate regarding the application of the constitutional privilege against self-incrimination has fueled nearly every dispute brought to the trial court in this case. The Cramers asked that this action be stayed largely on the basis that litigating the civil proceeding would undermine their privilege against self-incrimination, and they have reiterated this concern in their motion to stay discovery and in response to the motions to compel and for sanctions. It is equally clear, however, that the trial court did not approach the question involving the constitutional privilege against self-incrimination from the proper perspective. For this reason, we must vacate the trial court’s order finding Lisa Cramer in contempt. It should not be necessary to reiterate that when judging the invocation of the privilege against self-incrimination, the trial court must make a question-specific inquiry, focusing on whether a question is incriminating on its face, whether the question can be shown to be incriminating through further contextual proof, and whether there is a sufficient possibility of criminal prosecution to trigger the privilege.
II. The Attorneys’ Appeals
The Cramers’ attorneys argue that the trial court erred in finding them in contempt for failing to comply with the Breedloves’ subpoenas duces tecum. We agree.[6]
We can resolve this issue rather quickly, because the documents the Breedloves sought through the subpoenas are not properly discoverable through the Cramers’ attorneys. Looking first at the court’s order to Lionel Lofton, Lisa Cramer’s attorney, the order requires Lofton to produce “any and all documents he has in his possession which disclose the location of any funds obtained by [Lisa Cramer] from the Breedloves,” and the order further requires Lofton to disclose the amounts of any and all funds currently held in escrow or on deposit by him or his firm. This request is indistinguishable from the discovery the Breedloves sought from the Cramers, and it is clear that Lofton would only have obtained documents relating to the Cramers’ finances through his status as Lisa Cramer’s attorney. The Breedloves cannot discover documents through the Cramers’ attorneys when the compelled disclosure by the Cramers would be protected by the privilege against self-incrimination. Thus, although the Rules of Professional Conduct provide that an attorney may disclose privileged information when ordered by the court, see Rule 1.6(b)(7), RPC, Rule 407, SCACR, we find the disclosure ordered here highly improper.
The order directed to Charles Macloskie, Nathan Cramer’s attorney, provides another illustrative point. Specifically, the order professes that the Breedloves are seeking the information described in the subpoenas “in aid of enforcing an injunction issued by [this Court],” and that “without the information, [the Breedloves] cannot locate or trace the assets that are the subject of [this Court’s] injunction.” This justification is completely at odds with the purpose of discovery and demonstrates a fundamental misunderstanding by the Breedloves of their obligations in connection with this Court’s injunction. Discovery is, of course, the process of seeking information from an adverse party to prepare for litigation, and the discovery sought in this case relates largely to the nature of the Breedloves’ relationship with the Cramers. The Cramers have refused to respond to this discovery by asserting the constitutional privilege against self-incrimination, and this Court’s issuance of an injunction has no impact on this analysis.
If the privilege against self-incrimination protects the Cramers from disclosing the location of their assets to the Breedloves, that is the end of the matter. The Court’s issuance of an injunction does not grant the Breedloves a license to use discovery as a tool to ensure that the injunction is being given effect. As a court order, the injunction is binding on the Cramers, their agents and attorneys, and anyone in active concert with the Cramers receiving actual notice of the injunction. Rule 65(d), SCRCP. A party who refuses to abide by an injunction entered by the court would of course be in contempt of court and subject to sanctions, and our jurisprudence clearly establishes that the proper procedure to determine whether a party should be held in contempt is to bring a summons and a rule to show cause. See Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 267, 442 S.E.2d 611, 617 (1994). Treating the injunction as a back door to allow the discovery of otherwise non-discoverable information gives the privilege against self-incrimination an impermissibly shallow dimension.
Not to be outdone, the Cramers also misunderstand an important aspect of this Court’s injunction. Specifically, the Cramers appear to overextend the privilege against self-incrimination and treat it as a limitation on what information a court may ascertain in its own right. Stated differently, the question of what information the Breedloves may not obtain in discovery is completely separate from what information a court may require to be disclosed, in camera if necessary, to ensure that court orders are observed. While the appearance that the Cramers are using money they obtained from the Breedloves to pay their attorneys’ fees ought to be of significant concern, and thus, the Breedloves’ desire for this information is understandable, this issue should be resolved rather quickly and easily without the involvement of the civil discovery process.
For these reasons, we reverse the trial court’s decision finding the Cramers’ attorneys in contempt.
III. & IV. The Protective Order & The Order Denying Contempt
The Breedloves argue that the trial court erred in issuing a protective order over discovery in this case and in denying their second request for contempt and sanctions as to Lisa Cramer. Though these issues raise interesting questions, the fact remains that discovery orders, in general, are interlocutory and are not immediately appealable because they do not, within the meaning of the appealability statute, involve the merits of the action or affect a substantial right. Hamm v. S.C. Pub. Serv. Comm’n, 312 S.C. 238, 241, 439 S.E.2d 852, 853 (1994); Wallace v. Interamerican Trust Co., 246 S.C. 563, 568-69, 144 S.E.2d 813, 816 (1965).[7]
Conclusion
For the foregoing reasons, these appeals are vacated in part, reversed in part, and dismissed in part. Specifically, we vacate the trial court’s order finding Lisa Cramer in contempt; we reverse the trial court’s finding of contempt as to the Cramers’ attorneys; and we dismiss the remaining appeals as interlocutory and not immediately appealable.
MOORE, WALLER, PLEICONES and BEATTY, JJ., concur
[1] Counsel for Nathan Cramer did not appear at the hearing on the motion to compel. From this point on, the parties appear to have been content to litigate these discovery disputes solely from Lisa Cramer’s perspective.
[2] As our recitation of the law illustrates, there is a great deal of jurisprudence interpreting the Fifth Amendment’s privilege against self-incrimination and setting forth clear guideposts for judging an invocation of the privilege. The parties have not offered any arguments as to how the analysis might differ under Article 1, Section 12 of the South Carolina Constitution, so we assume in this case that the analysis under the two provisions is identical.
[3] The case Raffell v. United States, 271 U.S. 494 (1926), is not to the contrary. That case deals with the entirely different question of whether inconsistent conduct with respect to the invocation of the Fifth Amendment may be used as impeachment evidence if a party takes the witness stand.
[4] Though the trial court’s protective order regarding discovery is the subject of a separate issue on appeal, we note that the use of protective orders has been widely rejected as a prophylactic measure which cures the compelled disclosure of incriminating information. As this Court and the federal courts have made clear, if the privilege against self-incrimination applies, the government must either be content with having no response to its inquiry, or must grant the witness immunity. See State v. Thrift, 312 S.C. 282, 301, 440 S.E.2d 341, 351 (1994) (interpreting S.C. Const. art. I, § 12); Kastigar v. United States, 406 U.S. 441 (1972) (addressing the Fifth Amendment). Although this principle is admittedly problematic in the civil context because neither a civil plaintiff nor a judge in a civil action possesses the power to grant a witness immunity, the principle simply establishes that in a civil action, a court may not compel a witness to disclose information to an adverse party if the court finds that the privilege against self-incrimination is properly asserted.
[5] Furthermore, although the issue is not raised in this appeal, the parties expressed confusion in the trial court on the issue of posting a bond for the injunction. In our review of the trial court’s denial of an injunction, the only issue presented was whether the trial court erred in holding that the Breedloves had an adequate remedy at law to secure the $2 million originally in the Cramers’ Merrill Lynch account. We held that attachment was not an adequate remedy at law, and we remanded the matter to the trial court to proceed accordingly. The rule governing the issuance of injunctions controls whether the Breedloves are required to post a bond to secure the injunction in this case, see Rule 65(c), SCRCP, and the proposition that this Court somehow suspended the operation of this requirement is wholly inaccurate.
[6] This issue is, of course, presently appealable because the trial court held the Cramers’ attorneys in contempt, and we review a trial court’s imposition of discovery sanctions under an abuse of discretion standard. See Ex parte Whetstone, 289 S.C. 580, 581-81, 347 S.E.2d 881, 881-82 (1986); Laney v. Hefley, 262 S.C. 54, 58, 202 S.E.2d 12, 14 (1974).
[7] We take this opportunity to reiterate that while an appeal is pending, a lower court cannot act on matters affecting the issue on appeal. See Rules 205 & 225, SCACR. In the instant case, the trial court’s orders dealing with contempt did not run afoul of this proscription, because while the trial court’s first order deals with the subject of the Cramers’ initial discovery responses, the second order deals with the subject of Lisa Cramer’s responses to questions in her deposition.
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