Hennepin County District Court

File No. 95-100387

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for Appellant)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Schultz, Judge.

Appellant Dywon C. Tatum challenges a six-month sentence imposed on him for direct punitive contempt for refusing to testify in the first-degree murder trial of Samuel L. Byers. Because the length of the contempt sentence was not arbitrary, capricious, or oppressive, and because the sentence itself was not subject to criminal law rules or standards, we affirm.

Appellant challenged the propriety of the trial court's imposition of a six-month workhouse sentence for the contempt violation. In State v. Tatum, 556 N.W.2d 541, 545-48 (Minn. 1996) (Tatum I), the supreme court concluded that appellant's contempt constituted direct punitive contempt based on the trial court's inherent authority, and limited the ordinary sentence for such contempts to 90 days and a $700 fine. Because of comity principles and deference to the legislature, the court limited the absolute maximum sentence to six months. Id. at 548. The court remanded the case to the trial court to allow the court "to justify a more severe sentence" for appellant. Id. Upon remand, the trial court again imposed a six-month sentence.

On appeal, we conclude that the trial court's imposition of a six-month workhouse sentence was not arbitrary, capricious, or oppressive in this case. See id. at 547 (appellate courts "review punitive contempt orders for arbitrariness, capriciousness, and oppressiveness"). Consistent with Tatum I, the trial court on remand justified appellant's more severe sentence by the seriousness of the first-degree murder charges against Byers, the need for appellant's testimony at the time of his refusal, the absence of legal justification for his refusal, and the negative impact of his refusal on the judicial process. Id. at 548.

Appellant concedes the seriousness of the proceeding. He nevertheless contends that at the time of his resentencing on remand from Tatum I, Byers had already been convicted of second-degree felony murder and that the need for appellant's testimony in Byers's trial should be measured from that time. Tatum I makes clear, however, that need must be measured "at the time of [the contemnor's] refusal." Id. At the time of appellant's refusal, no witnesses had testified in Byers's trial and the need for appellant's eyewitness or accomplice testimony was great. Additionally, there was no legal justification for appellant's refusal to testify because he was offered use immunity by the state.

Appellant next argues that the sentencing guidelines, rules of criminal procedure, and other criminal law precedents govern whether his contempt sentence may run consecutively to any criminal sentence imposed as a result of a recent robbery charge, and whether he may receive jail credit on the contempt sentence for time he was incarcerated on the robbery charge.

It is clear that the Tatum I court did not envision application of criminal law rules or standards when a trial court imposes a penalty for direct punitive contempt based on that court's inherent authority. Rather, the Tatum I court declined to limit penalties for judicial contempt to those enumerated under the statute, stating:

We restore the intended statutory division between the crime of contempt and judicial contempt, and hold that section 588.20 does not limit judicial contempt penalties under Minn. Stat. §§ 588.01-.15, .21 (1994).

Id. at 546 (emphasis in original). Thus, because the contempt sentence here was judicially crafted rather than statutorily mandated, criminal law sentencing rules and standards do not apply.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.