State v. Vinegra , 73 N.J. 484 ( 1977 )

The opinion of the court was delivered by

Sullivan, J.

Defendant, Victor Vinegra, then the City Engineer of Elizabeth, was called before a Union County grand jury which was making an inquiry into official misconduct in Elizabeth involving a street improvement project. He was questioned before the grand jury without being advised of the scope of the investigation or that he was a possible target of the inquiry. Also, he was not told of. his privilege against self-incrimination or his right to testimonial immunity under N. J. S. A. 2A:81-17.2a2,. It is undisputed that defendant, in his appearance before the grand jury, did not assert his privilege against compulsory self-incrimination. Following his extensive testimony before the grand jury, defendant and one Harry E. Allen (not involved in this appeal) were charged with criminal conduct by the same grand jury which returned a nine-count indictment against them on June 29, 1973. Eight of the counts involve defendant. The first seven charge him with misconduct in office and conspiracy; the eighth count charges false swearing before the grand jury.

On April 11, 1974 the trial court granted in part a motion made by defendant and dismissed the first seven counts of the indictment as to him. It refused to dismiss the eighth count which charged defendant with false swearing. See N. J. S. A. 2A:81-17.2a2; State v. Mullen, 67 N. J. 134 (1975). The trial court found that defendant was a target of the grand jury investigation and that there had been a failure to inform him of the scope of the investigation or to warn him of his privilege against self-incrimination. It held that this was a violation of defendant’s Fifth Amendment rights and, relying on State v. Wary, 19 N. J. 431 (1955), State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967) and State v. Rosania, 96 N. J. Super. 515 (Law Div. 1967), ordered that counts one through seven be dismissed.

On leave granted to appeal, the Appellate Division held that there was sufficient evidence to justify the factual findings made by the trial judge. However, it disagreed with his conclusion that dismissal of the charges was required. Instead, the Appellate Division held that defendant’s Fifth Amendment rights were adequately protected by virtue of N. J. S. A. 2A:81—17.2a2 which provided that if any public employee

* * * testifies before any * * * grand jury * * *, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State.

Although defendant had not claimed privilege or been informed of such statutory immunity when he appeared before the grand jury, the Appellate Division held that the statute was “self-executing” and required no assertion of privilege by the witness and no confirmatory action by the court or by the State.¹

The Appellate Division held that by virtue of N. J. S. A. 2A:81-17.2a2, defendant’s testimony before the grand jury could not be used against him in any subsequent criminal proceeding except as it might be relevant in a prosecution for perjury or false swearing. State v. Mullen, supra. This statutory immunity, the Appellate Division held, adequately protected defendant’s Fifth Amendment rights so that dismissal of the indictment was not warranted. It therefore reinstated counts one through seven. This Court granted defendant’s motion for leave to appeal.

The United States Supreme Court, in similar factual circumstances, has held that, insofar as a violation of the Eifth Amendment privilege against self-incrimination is involved, the remedy is not dismissal of the indictment but rather suppression of the grand jury testimony and its fruits should the Government seek to use it at trial. United States v. Blue, 384 U. S. 251, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); United States v. Calandra, 414 U. S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). See, Kastigar v. United States, 406 U. S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), reh. den. 408 U. S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972); United States v. Mandujuano, 425 U. S. 564, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976).

When a witness appears before a grand jury, as a general rule, he does not have the status of a defendant in a criminal trial and it is not required that he be informed of the privilege against compulsory self-incrimination. State v. Fary, supra, 19 N. J. at 435. The failure to warn such a witness of his right to refuse to answer incriminating questions has a bearing on the matter of invasion of his privilege, only if the witness was under formal criminal charges at the time and was questioned as to the charges, or, though not under formal charges, the grand jury proceeding was not a general inquiry but one directed at the witness with the object of returning an indictment against him. State v. Browning, 19 N. J. 424, 427 (1955).

This court has not had occasion to rule directly on the question whether a “target” of a grand jury proceeding must be advised that he is a target and of his right not to incriminate himself, failing which an indictment based on his testimoiry will be quashed. However, we have in numerous decisions approved this principle. State v. Williams, 59 N. J. 493, 503 (1971); In re Addonizio, 53 N. J. 107, 117 (1968); State v. DeCola, 33 N. J. 335, 342-344 (1960); State v. Browning, supra; State v. Fary, supra. Trial courts have uniformly adhered to the target rule. State v. Sibilia, 88 N. J. Super. 546 (Essex Cty. Ct. 1965); State v. Sarcone, supra; State v. Rosania, supra.

This principle grows out of the privilege against self-incrimination in this State which, although not written into our State Constitution, is firmly established as part of our common law. State v. Deatore, 70 N. J. 100 (1976); In re Pillo, 11 N. J. 8 (1952); State v. Zdanowicz, 69 N. J. L. 619 (E. & A. 1903). The privilege is now also incorporated in our Rules of Evidence, N. J. S. A. 2A:84A-1 et seq.; see Evid. R. 23, 24 and 25. However, for reasons which follow, we need not in this particular case, resolve the question whether we should continue to adhere to the “target” principle as part of our common law privilege against self-incrimination.

The target doctrine, insofar as it calls for dismissal of the indictment against a target witness, has been modified to some extent as to public employees by legislative action heretofore referred to. In 1970 a statute was enacted making it the duty of every public employee to appear and testify upon matters directly related to the conduct of his office and subjecting him to removal if he failed to do so. N. J. S. A. 2A:81-17.2a2.² The statute also provides that such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State. N. J. S. A. 2A:81-17.2a2. Recent amendments not here pertinent are referred to in footnote 1, supra.

This statute has the effect of making the target doctrine inapplicable to a public employee insofar as it imposes a duty on him to testify upon matters directly related to the conduct of his office. At the same time it seeks to protect his privilege against self-incrimination by giving him the use and fruits immunity heretofore referred to.

Defendant argues that the immunity conferred by the statute is an inadequate protection of his Fifth Amendment and common law privilege against self-incrimination. He notes that the immunity granted only extends to use of such testimony in a subsequent criminal proceeding and that the grand jury which heard such testimony would be free to use it to indict him.

So far as the Fifth Amendment is involved, the United States Supreme Court has consistently held that the receipt by a grand jury of evidence obtained in violation of a person’s Fifth Amendment rights does not infect an indictment based on such testimony. Blue, supra; Calandra, supra. As noted, these eases hold that suppression of such grand jury evidence (and fruits thereof) at trial adequately protects a defendant’s Fifth Amendment rights.

The common law privilege against self-incrimination in New Jersey as expounded in our target doctrine seems to afford greater protection than that given by the Fifth Amendment. However, the privilege and doctrine stem from the common law and are subject to legislative modification.

Concededly the statute in question takes away from a certain class of the citizenry the protection of the target doctrine to the extent that it imposes a duty on a public employee to testify upon matters directly related to the conduct of his office. However, it cannot be said that the statutory classification is arbitrary and unreasonable or denies equal protection in the constitutional sense. A public employee attends to the business of government. It is the public’s right and in the public interest to require such employee to account for his stewardship. This limitation on the common law privilege is grounded in public policy and is well within the legislative power.³

See for example N. J. S. A. 2A:84A-17(4) which embodied a restriction on the common law privilege against self-incrimination in New Jersey extending back to Parker v. State, 61 N. J. L. 308 (Sup. Ct. 1897), affirmed 62 N. J. L. 801 (E. & A. 1899). Under it, if an accused in'a criminal action did not testify after direct evidence was received of facts which tended to prove some element of the crime and which facts, if untrue, the accused could disprove by his own testimony, counsel and the judge could comment on the accused’s failure to testify, and the trier of fact was permitted to draw an inference that the accused could not truthfully deny those facts.

This statute and the rule of law it expressed ultimately were held to be unconstitutional in State v. Lanzo, 44 N. J. 560 (1965) but only because the United States Supreme Court had held that the Fifth Amendment privilege against self-incrimination in the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, forbade either comment by the prosecution on the accused’s silence or instructions by the court that such silence was evidence of guilt. Griffin v. State of California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

Our conclusion is substantially that arrived at by the Appellate Division. We hold that dismissal of the first seven counts of the indictment was not required and that the immunity given defendant by N. J. S. A. 2A:81-17.2a2 adequately protected his Fifth Amendment rights. So far as N. J. S. A. 2A:81-17.2a1 et seq. limits defendant’s common law privilege against self-incrimination in its application to a public employee who is called on to testify upon matters directly related to the conduct of his office, it has not been shown to be an improper exercise of the legislative power.

We repeat the Appellate Division’s admonition that protection of defendant’s Fifth Amendment rights will require that the State, at trial, have the burden of proving that the evidence it uses “is derived from a legitimate source wholly independent” of his grand jury testimony. Kastigar v. United States, 406 U. S. 441, 460, 92 S. Ct. 1653, 1665, 32 L. Ed. 2d 212, 226 (1972). Also, for obvious reasons the count for false swearing must be tried separately from the other counts.

Affirmed.

ADDENDUM

The foregoing opinion was written prior to May 23, 1977 decisions by the United States Supreme Court in United States v. Wong, - U. S. -, 97 S. Ct. 1823, 52 L. Ed 2d 231, and United States v. Washington, - U. S. -, 97 S. Ct. 1814, 52 L. Ed. 2d 238. Neither case is directly in point but the holdings therein merit some comment.

Wong, who was under investigation for possible criminal activity was called to testify before a grand jury. Following her testimony, she was indicted for perjury based on such testimony. On motion, the District Court ordered the testimony suppressed as evidence of perjury on the ground that no effective warning of the Fifth Amendment privilege to remain silent had been given. The Ninth Circut affirmed, 553 F. 2d 576 (1974). The United States Supreme Court, in a unanimous opinion reversed. Citing United States v. Mandujuano, 425 U. S. 564, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976), it held that the Fifth Amendment grants a privilege to remain silent but "does not endow the person who testifies with a license to commit perjury.” Glickstein v. United States, 222 U. S. 139, 142, 32 S. Ct. 71, 56 L. Ed. 128 (1911). In the instant case Vinegra has also been indicted for perjury based on his grand jury testimony.

In the second case, Washington was also a target of a criminal investigation. Tie was called before a grand jury and advised of his Fifth Amendment rights but was not told that he was a potential defendant in danger of indictment. Following his testimony, he and others were indicted for grand larceny and receiving stolen property.

Washington’s motion to suppress his testimony and quash the indictment was granted by the Superior Court for the District of Columbia on Fifth Amendment grounds. It held that the most significant failing of the prosecutor was in not advising Washington that he was a potential defendant. The District of Columbia Court of Appeals agreed and affirmed the trial court ruling insofar as it suppressed Washington’s grand jury testimony as trial evidence. However, it reinstated the indictment against Washington holding that an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence. See United States v. Calandra, supra; United States v. Blue, supra. Washington’s petition to review this portion of the Court of Appeals ruling was denied. Washington v. United States, 426 U. S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976). However, the Government’s petition to review the holding which suppressed Washington’s grand jury testimony as trial evidence was granted and the decision of the Court of Appeals was reversed.

The United States Supreme Court, with Justices Brennan and Marshall dissenting, held that the comprehensive warnings which Washington had in fact received, whether or not such warnings were constitutionally required, dissipated any element of compulsion to self-incrimination. The Court also held that it was not required that Washington be warned that he was a potential defendant since a target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination and potential defendant warnings add nothing of value to protection of Fifth Amendment rights.

Suffice it to note that this holding would appear to afford a grand jury target witness considerably less protection under the Fifth Amendment privilege against self-incrimination than he receives under the common law privilege in this State. See State v. Williams, supra, and other cases cited on pp. 488 and 489.

1 The statute was amended by L. 1975, c. 246 so as to limit the grant of immunity to a situation- where, the public employee testifies after, having first claimed the privilege against self-incrimination and having then been informed that his failure to appear and testify will subject him to. removal from his office, position or employment.

2 This statute was enacted in response to the decision of the United States Supreme Court in Gardner v. Broderick, 392 U. S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968) which, in effect, held that a public employee can be put to the choice of answering questions specifically, directly and narrowly relating to the performance of his official duties, or facing loss of his job, provided he is not required to waive his immunity with respect to the use of his answers or the fruits thereof in a subsequent criminal prosecution. See also, Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967) ; Sanitation Men Asso. v. Commissioner, 392 U. S. 280, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968).

3 Some of the target cases, cited above, involved public officials or employees. However, they were all decided prior to enactment of the present statute in 1970.