Civil Practice – Direct Criminal Contempt – Admittedly False Testimony – Self-Incrimination

In re Cafolla (Lawyers Weekly No. 12-16-0002, 10 pp.) (Douglas McCullough, J.) Appealed from Forsyth County Superior Court. (Lindsay R. Davis Jr., J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: The district court judge warned contemnor that, if he testified falsely, he would be held in contempt. Contemnor testified both that he could not remember the day his sister was the victim of domestic violence and that he did not observe any injuries on his sister on the date of the incident. Contemnor’s rights were not violated when the district court judge gave him an opportunity to respond to the charge of contempt and contemnor admitted that he had actually seen his sister’s injuries on the date of the assault.

We affirm the superior court order finding contemnor in direct criminal contempt.

Contemnor objected when, in superior court, the district court judge testified that contemnor admitted to testifying falsely. However, contemnor had previously invited similar testimony from a police officer on cross-examination. Having invited such testimony from one witness, contemnor cannot now complain of its admission through another witness.

In any event, the evidence did not violate any of contemnor’s rights. Contemnor argues the superior court erred in admitting his “uncounseled exchange with the District Court” as evidence against him because his statements were made in violation of his constitutional rights to counsel and to remain silent.

However, summary punishment for direct contempt committed in the presence of the court does not contemplate a trial at which the person charged with contempt is represented by counsel. There is no requirement in law that contemnor be represented by counsel during summary contempt proceedings in district court. As such, contemnor’s statement did not violate such a right, and therefore cannot be inadmissible on that basis.

Regarding contemnor’s argument that his right to remain silent was violated by the superior court’s admission of his district court statement, there must be compelled testimonial self-incrimination before Fifth Amendment protections are triggered. Contemnor was in no way compelled by the district court to make a statement.

Rather, pursuant to statutory procedure, Judge Bedsworth simply “gave [contemnor] an opportunity to say anything,” to which contemnor voluntarily responded. Contemnor’s Fifth Amendment rights were in no way implicated by Judge Bedsworth’s question, and the admission of contemnor’s statement likewise did not implicate his right against self-incrimination. There is no Miranda warning requirement for a witness who is not in custody during summary contempt proceedings.

Affirmed.