{ "id": 1447521, "name": "Raymond Wade WATSON v. CITY OF FAYETTEVILLE", "name_abbreviation": "Watson v. City of Fayetteville", "decision_date": "1995-11-06", "docket_number": "CR 95-648", "first_page": "324", "last_page": "330", "citations": [ { "type": "official", "cite": "322 Ark. 324" }, { "type": "parallel", "cite": "909 S.W.2d 637" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "308 Ark. 627", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904373 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0627-01" ] }, { "cite": "526 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "285 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877670 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0279-01" ] }, { "cite": "485 U.S. 624", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13721 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/0624-01" ] }, { "cite": "296 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892741 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0137-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-109", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "308 Ark. 627", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904373 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/308/0627-01" ] }, { "cite": "296 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892741 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "139" }, { "page": "276" } ], "opinion_index": 1, "case_paths": [ "/ark/296/0137-01" ] }, { "cite": "93 Idaho 87", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4441307 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/idaho/93/0087-01" ] }, { "cite": "100 Idaho 99", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4446350 ], "weight": 2, "year": 1979, "opinion_index": 2, "case_paths": [ "/idaho/100/0099-01" ] }, { "cite": "103 Idaho 472", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4401171 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "1229" } ], "opinion_index": 2, "case_paths": [ "/idaho/103/0472-01" ] }, { "cite": "255 Kan. 871", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 737965 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "631" } ], "opinion_index": 2, "case_paths": [ "/kan/255/0871-01" ] } ], "analysis": { "cardinality": 579, "char_count": 10868, "ocr_confidence": 0.829, "pagerank": { "raw": 2.5145883232228947e-07, "percentile": 0.810891484407006 }, "sha256": "acbcee810c5d64ee2732a1d7937403b8c69b247444d49812dbbb3a6247c9cfbb", "simhash": "1:aade003062ce977c", "word_count": 1801 }, "last_updated": "2023-07-14T22:17:32.217899+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Brown, JJ., dissent." ], "parties": [ "Raymond Wade WATSON v. CITY OF FAYETTEVILLE" ], "opinions": [ { "text": "David Newbern, Justice.\nRaymond Wade Watson was convicted in a trial to the court without a jury of driving while intoxicated, first offense, and failure to maintain control of his motor vehicle. He was ordered to report to the Ozark Guidance Center (OGC) for presentence evaluation for the purpose of compilation of an Arkansas Highway Safety Program presentence report in accordance with Ark. Code Ann. \u00a7 5-65-109(a) (Repl. 1993). Upon advice of his counsel, Mr. Watson declined to report to the OGC. The Trial Court sentenced him to a fine and incarceration for 30 days with credit for time served and 29 days suspended.\nMr. Watson was held in contempt for his failure to attend the OGC, and his driving privilege was suspended until such time as he \u201celects to undergo that screening.\u201d He contends the contempt ruling was in error because he should have had a jury trial on that issue and because his participation in the presentence procedure would violate his right not to incriminate himself. He also contends it was error to sentence him prior to receiving the presentence report. We uphold the contempt ruling and reverse and remand for resentencing upon receipt of the report.\n1. Contempt\nMr. Watson was not entitled to a trial by jury with respect to the contempt citation because it was remedial and coercive in nature. We discussed the distinction between this kind of order and a punitive or criminal contempt citation in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). In that case, we found a fine to be punitive, but we pointed out the United States Supreme Court decision Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988), in which the remedial nature of a coercive contempt order was emphasized with the adage, \u201cAnd those who are imprisoned until they obey the order, \u2018carry the keys of their prison in their own pockets.\u2019\u201d Mr. Watson had waived his right to a jury in the underlying proceeding, and that poses no issue in this appeal.\nMr. Watson\u2019s refusal to obey the order was based on his counsel\u2019s advice. His counsel argued to the Trial Court that Mr. Watson\u2019s participation in the compilation of the presentence report would violate his privilege against self incrimination. The argument is based on \u00a7 5-65-109(c) which states \u201cThe report shall include, but not be limited to, the offender\u2019s driving record, an alcohol problem assessment, and a victim impact statement where applicable.\u201d His contention is that revelations by him in response to questions on those matters could cause an increase in his sentence.\nIn Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985), we rejected an argument that a presentencing report could violate one\u2019s right not to incriminate oneself and said, \u201cthe act does not require a defendant to take any action whatever in response to the State\u2019s proof or to the presentence report....\u201d Evidently the issue was slightly different in that case, as the quoted holding does not address Mr. Watson\u2019s point that requiring him to participate could violate his rights.\nIn People v. Baker, 526 N.E.2d 157 (Ill. 1988), the Illinois Supreme Court faced a similar issue. The situation was somewhat different in that the Illinois statutes provided for a presentence report but did not require it. It was held that, because the report was permissive only, it was improper for the Trial Court to have held the defendant, who refused to participate, in contempt. It was pointed out, however, that the privilege against self incrimination may be invoked during an evaluation intended to lead to a presentence report. The Illinois Court of Appeals had held that it was unnecessary for the defendant to attend the presentence evaluation in view of his right not to answer questions which could be incriminating. That holding was rejected in the Illinois Supreme Court\u2019s decision.\nThe mere possibility that Mr. Watson may be asked questions, the answers to which may have the effect of causing the Trial Court to sentence more harshly than it otherwise might, does not excuse violation of the Trial Court\u2019s order that he report to the agency charged with the responsibility of conducting an evaluation. His self-incrimination argument was, at best, premature. The contempt ruling was proper.\n2. The sentence\nSection 5-65-109(b) provides, \u201cThe presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.\u201d Mr. Watson argues that, as there has been no presentence report, it was a violation of the statute and error for the Trial Court to have sentenced him. The State responds that the violation was \u201cinvited error,\u201d and thus it may not form the basis of a reversal, citing Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).\nIn the Morgan case a criminal defendant disrupted a trial and then asked the Trial Court to declare a mistrial. We held that \u201cone who is responsible for error cannot be heard to complain of that for which he was responsible.\u201d The problem with applying that rule in this case is that it would obviate the need for, and thus be inconsistent with, the contempt order. Section 5-65-109(b) clearly states that, in a bench trial, the court \u201cshall not\u201d pronounce sentence until the presentence report has been received. If we were to hold that Mr. Watson could be sentenced without a presentence report because he invited the error, we would contradict the mandatory language of the statute.\nThe Trial Court has taken action to see to it that a presentence report is received. In these circumstances, we reverse the sentence and remand the case for resentencing upon receipt by the Trial Court of the Arkansas Highway Safety Program report.\nAffirmed in part, reversed in part, and remanded.\nGlaze and Brown, JJ., dissent.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting.\nI join in Justice Robert L. Brown\u2019s dissenting opinion to the extent he would affirm the trial court\u2019s sentencing of appellant Raymond Watson. I disagree with both Justice Brown and the majority court that the trial court\u2019s civil contempt order should be upheld. The civil contempt directive suspended Watson\u2019s driving privileges until he reports to the Ozark Guidance Center.\nAs Justice Brown points out in his opinion, the trial court was well within its authority to sentence Watson after Watson refused to report to the Center. Clearly he cannot be heard to complain because his own action, or lack thereof, resulted in his presentence report not being prepared and submitted to the court for sentencing purposes. See Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).\nNonetheless, when Watson\u2019s sentence was imposed without benefit of a presentence report, the coercive nature and purpose of the trial court\u2019s civil contempt order ended. Clearly the trial court\u2019s order compelling Watson to appear at the Center no longer had any import after the court sentenced Watson.\nFinally, I note the majority opinion cites the case of Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), in support of its decision to uphold the trial court\u2019s civil contempt order in this criminal case. The Fitzhugh decision, however, defines a civil contempt proceeding to be one instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for benefit of those parties. Id. at 139, 752 S.W.2d at 276. For this reason, as well, I would vacate the trial court\u2019s civil contempt order.\nAccordingly, I would affirm the trial court\u2019s sentence, but reverse and dismiss its civil contempt order.", "type": "dissent", "author": "Tom Glaze, Justice," }, { "text": "Robert L. Brown, Justice,\ndissenting.\nI would affirm both the contempt ruling suspending Watson\u2019s driving privileges until he reported to the Ozark Guidance Center for presentence evaluation and his sentence of a fine and 30-day incarceration with all but one day suspended and credit for time served.\nThe opinion reverses the sentence because Watson did not report to the Center, and \u00a7 5-65-109(b) makes that a prerequisite to pronouncement of sentence. I cannot agree that a defendant can fail to report and then proclaim that he is immune from sentencing. The effect of the majority opinion is to allow a defendant to bypass sentencing by simply refusing to partake in presentence evaluation. If Watson can avoid sentencing in this manner, why cannot similarly situated defendants do likewise? The General Assembly certainly did not intend such contorted consequences or envision nonparticipation in the evaluation as an avenue for obstructing pronouncement of sentence.\nOther jurisdictions lend credence to this dissenting opinion. Kansas v. Borders, 255 Kan. 871, 879 P.2d 620 (1994); Idaho v. Bylama, 103 Idaho 472, 649 P.2d 1228 (1982). In Borders, the defendant was convicted of three counts of rape and first-degree murder and refused to be interviewed as part of the presentence investigation. Kansas statutes made a presentence investigation mandatory. The Kansas Supreme Court denied the defendant\u2019s claim of a due process violation:\nThe defendant was given the opportunity of an interview and declined. The defendant cannot refuse to participate in the PSI interview process and then use the failure of an interview as a ground for appeal. We know of no rule of law that requires the court services officer to continue making attempts at a personal interview with the defendant after the defendant has refused the opportunity and refused to cooperate.\nThe defendant\u2019s due process rights were fully protected by the trial judge in this case, and the defendant has shown no prejudice. We find no abuse of discretion by the trial court in any of the issues asserted on appeal.\n879 P.2d at 631.\nIn Bylama, the Idaho statute required a psychological examination of the defendant as part of a presentence report where appropriate. The defendant, who was convicted of bank robbery, did not cooperate in the psychological evaluation. The Idaho Court of Appeals concluded:\nAppellant contends the presentence report was inadequate because it did not include all of the information required by I.C.R. 32(b). However, the failure to meet all of those requirements was the result of appellant\u2019s refusal to cooperate in the preparation of the report. He cannot now claim that the deficiencies in the report precluded the trial court, from sentencing him. See State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979); King v. State, 93 Idaho 87, 456 P2d 254 (1969.)\n649 P2d at 1229.\nThe decisions in Kansas and Idaho make good, common sense, and I would follow them. To do otherwise allows a defendant to escape punishment by his own recalcitrance.\nI respectfully dissent.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Doug Norwood, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Raymond Wade WATSON v. CITY OF FAYETTEVILLE\nCR 95-648\n909 S.W.2d 637\nSupreme Court of Arkansas\nOpinion delivered November 6, 1995\nDoug Norwood, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0324-01", "first_page_order": 350, "last_page_order": 356 }