Recently the SJC ruled on whether a defendant charged with summary contempt procedings was barred from Being charged by the principles of “double jeapardy” in ADMILSON VIZCAINO vs. COMMONWEALTH 462 Mass. 266 (2012).
The court in ruling that double jeopardy did not apply stated “Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts statutory and common law prohibit the government from twice placing a person in jeopardy for the same criminal offense. Benton v. Maryland, 395 U.S. 784, 793-796 (1969). Lydon v. Commonwealth, 381 Mass. 356, 366, cert. denied, 449 U.S. 1065 (1980). G. L. c. 263, §§ 7, 8, 8A. The prohibition applies to (1) subsequent prosecution for the same offense after acquittal, (2) subsequent prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Commonwealth v. Love, 452 Mass. 498, 502 (2008). In this case, we are concerned with the prohibition against subsequent prosecution for the same offense after conviction. The defendant argues that because he was convicted of summary contempt at the May 12 proceeding, his subsequent indictment for nonsummary criminal contempt cannot stand under double jeopardy principles. He thereby asks us to decide that double jeopardy applies to summary contempt proceedings, an issue that has been left open by the United States Supreme Court. See United States v. Dixon, 509 U.S. 688, 697 n.1 (1993). Assuming, but not deciding, that the defendant was placed in jeopardy, we conclude that the defendant was not convicted of summary contempt, and therefore jeopardy never terminated. See Commonwealth v. Jarvis, 68 Mass. App. Ct. 538, 541 (2007), citing Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003) (“where jeopardy attaches and has not terminated, considerations of double jeopardy are not implicated”). See also Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309 (1984). Although the judge orally announced a judgment of summary contempt, she did not take the essential steps of entering the judgment on the court’s docket and providing the defendant a “summary opportunity” to adduce evidence or argument before adjudication. As a result of these omissions, the contempt prosecution by operation of law became a rule 44 nonsummary contempt prosecution. See Reporters’ Notes to rule 44, supra at 1740. The jeopardy, if any, was continuing. Cf. Justices of Boston Mun. Court v. Lydon, supra (former two-tiered trial system in Massachusetts as continuing jeopardy). The defendant’s double jeopardy argument therefore fails, and his petition must be denied.
The judge did not enter a written judgment of criminal contempt, a prerequisite to summary contempt under rule 43 (a) (2) and (b). See Commonwealth v. Segal, 401 Mass. 95, 99-100 (1987). Thus, her actions did not constitute a conviction of summary contempt under rule 43. Rather, by combined operation of rules 43 and 44, the proceeding became nonsummary under rule 44. See Reporters’ Notes to rule 43, supra at 1735 (rule “disallows summary disposition of contempts when the judgment of contempt is not entered contemporaneously with the commission of the contempt”). See also Reporters’ Notes to rule 44, supra (“Contempts that are not or cannot be tried summarily . . . must be tried under the provisions of [r]ule 44” [emphasis added]). Although the judge stated that it was her “judgment” and “find[ing]” that the defendant had committed a summary contempt by twice refusing to provide testimony in her presence, her failure to enter judgment committed her to proceeding under rule 44. For a judge to convict a defendant of summary contempt, she must enter a contemporaneous judgment of contempt on the record, signed by her, containing “a recital of those facts upon which the adjudication of guilt is based.” Mass. R. Crim. P. 43 (b). Where these requirements are not met, the only option is to proceed by complaint or indictment pursuant to rule 44.
The judge also did not provide the defendant a “summary opportunity” to adduce evidence or argument relevant to guilt or punishment before she made the statements at issue on May 12. Although the judge heard argument from the attorneys about the law applicable to contempt proceedings, as to argument relevant to guilt or punishment the judge stated, “It’s not time to have that hearing yet.” The judge did not hear argument relevant to guilt or punishment until May 28, well after the defendant claims to have been convicted. By waiting, the judge committed herself to a rule 44 proceeding. See Commonwealth v. Segal, supra at 99-100.
Our prior cases support this result. In Commonwealth v. Segal, supra, we reversed a judgment of summary contempt on grounds that included a lack of a signed judgment entered on the record and a failure to provide a “summary opportunity” to be heard. The judge in this case presumably was aware of this precedent but nevertheless declined to fulfil the rule 43 requirements.
We also note that under Mass. R. Crim. P. 28, 378 Mass. 898 (1979), a criminal judgment must be read in open court and entered on the court’s docket, and the defendant must thereafter be notified of his right to appeal. Here, the judge complied with the first requirement of rule 28 but not the other two. Accordingly, there was no criminal “judgment” and the defendant was not convicted of summary contempt.
The defendant argues that the judge exercised the deferred sentencing option of rule 43 (b) and therefore must have found him guilty of summary contempt because there otherwise would be no conviction on which to sentence him. The defendant points to certain statements of the judge and the prosecutor at the May 28 hearing, which indicate they believed the defendant already had been adjudged guilty of summary contempt on May 12. According to the defendant, these statements establish that he was convicted of summary contempt on May 12.
The defendant looks for support in Commonwealth v. Love, 452 Mass. 498, 504-505 (2008). There, the question was whether a District Court proceeding at which a judge erroneously had heard evidence for purposes of both a trial and a motion to suppress was a trial to which jeopardy attached. Id. at 498-499. We concluded that it was. Id. at 499. Witnesses had been sworn and provided testimony, the hallmark of a proceeding to which jeopardy attaches. Id. at 504. We further stated that our conclusion was “buttressed by the behavior of all concerned, including the judge and counsel, that was consistent with the conduct of a trial.” Id.
The short answer to the defendant’s argument is that the Love case does not stand for the broad proposition that the behavior of the parties determines how to characterize a proceeding. Rather, under our double jeopardy precedents we must look beyond labels affixed by the trial judge or the parties, to the substance of the proceeding. See Commonwealth v. Gonzalez, 437 Mass. 276, 282 (2002), cert. denied, 538 U.S. 962 (2003); Adams v. Commonwealth, 415 Mass. 360, 361-363 (1993); Commonwealth v. DeFuria, 400 Mass. 485, 487-489 (1987). Here, the judge did not exercise the deferred sentencing option on May 12 because she did not enter a contemporaneous judgment of contempt or provide the defendant a summary opportunity to be heard. [FN14] In any event, the judge’s apparent belief that she had exercised this option should be taken with a “grain of salt,” as the judge had expressed “considerable uncertainty” throughout the proceedings as to the proper procedure. Where, as here, the *278 hallmarks of a conviction of summary contempt are absent, the judge’s actions speak for themselves. In failing to meet the requirements of rule 43 (a), the judge removed the option of employing summary punishment.
We conclude that the judge’s actions from May 12 to May 28 were consistent with the initiation, by operation of law, of a nonsummary contempt proceeding pursuant to rule 44. See Reporters’ Notes to rule 44, supra at 1740. Cf. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309 (1984). As stated, a contempt may be classified as nonsummary either by choice of the judge or by operation of the rules of criminal procedure. Here, the judge may have believed she was proceeding by choice, but in reality her failure to adhere to rule 43 (a) and (b) foreclosed her ability to employ the summary contempt procedure. In substance, the proceeding was not a conviction of summary contempt but, rather, the initiation of a nonsummary contempt proceeding.
Our decision today gives effect to long-standing principles counselling restraint by judges in their use of the summary contempt procedure. See, e.g., Offutt v. United States, 348 U.S. 11, 13 (1954); Sussman v. Commonwealth, 374 Mass. 692, 695-699 (1978). In the case at bar, the judge may originally have intended to punish the defendant summarily but thought better of it on reflection. Our rules encourage such reflection.
We hold that, in the circumstances of this case, assuming, but not deciding, that the judge’s comments on May 12 caused jeopardy to attach, the defendant was not “convicted” of summary contempt and therefore jeopardy did not terminate. There is no double jeopardy bar to nonsummary prosecution of the defendant for criminal contempt. The case is remanded to the county court for entry of a judgment denying the defendant’s petition.