In Re Fernandez , 31 Conn. Super. Ct. 53 ( 1974 )

It seems from statements of counsel that William Fernandez, hereinafter called the defendant, has appeared before a one-man investigatory grand jury (O'Sullivan, state referee) inquiring into whether there has been committed any violations of the election laws with reference to absentee balloting. When called as a witness, the defendant refused to answer a series of questions put to him, claiming the fifth amendment privilege against self-incrimination. A footnote includes all of the questions.¹ Some of them the defendant is now willing to answer. They are Nos. 1, 2, 3, 4, 19, 23, 28, 30, 31, and 32.

I The federal rule with reference to the privilege against self-incrimination — the rule which governs this case because a fifth amendment right is involved — is perhaps best stated in Hoffman v. UnitedStates, 341 U.S. 479, and Malloy v. Hogan,378 U.S. 1. The defendant in Hoffman had a twenty-year police record and had been publicly labeled an "underworld character and racketeer." Hoffman v.United States, supra, 489. The Senate crime investigating committee had placed his name on a list of "known gangsters," and police had described him as "the king of the shore rackets who lives by the gun." Ibid. He had also served a sentence on a narcotics charge. Ibid. The court in Hoffman stated (p. 486): "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. UnitedStates, 340 U.S. 159 (1950). But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U.S. 362,365 (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. UnitedStates, 340 U.S. 367 (1951), and to require him to answer if `it clearly appears to the court that he is mistaken.' Temple v. Commonwealth, 75 Va. 892,899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim `must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.' See Taft, J., in Ex parte Irvine, 74 F. 954, 960...."

The trial judge in Hoffman was aware (p. 487) that the special grand jury which examined Hoffman was investigating "rackets" in Philadelphia that would "run the gamut of all crimes covered by the federal statute." Three of the questions put to Hoffman were designed to draw information as to his contacts and connection with a fugitive witness, Weisberg, and a final question inquired as to the whereabouts of the fugitive witness at the time. "All of them could easily have required answers that would forge links in a chain of facts imperiling petitioner with conviction of a federal crime. The three questions, if answered affirmatively, would establish contacts between petitioner and Weisberg during the crucial period when the latter was eluding the grand jury; and in the context of these inquiries the last question might well have called for disclosure that Weisberg was hiding away on petitioner's premises or with his assistance. Petitioner could reasonably have sensed the peril of prosecution for federal offenses ranging from obstruction to conspiracy. In this setting it was not `perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate. Temple v. Commonwealth, 75 Va. 892,898 (1881), cited with approval in Counselman v. Hitchcock, 142 U.S. 547, 579-580 (1892). See also,Arndstein v. McCarthy, 254 U.S. 71 (1920)." Hoffman v. United States, supra, 488.

Thus in essence the federal rule is that if it is not "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken [in claiming his privilege], and that the answer[s] cannot possibly have such tendency" to incriminate, the witness need not answer the question. This includes a question the answer to which might forge a link in the chain of evidence to prosecute the witness for a crime. Furthermore, the claim of privilege does not require the witness to prove the hazard because this could lead to the surrender of the very protection which the privilege is designed to guarantee.

Special federal grand juries now operate under the Special Grand Jury Act; 84 Stat. 923, 18 U.S.C. § 3331 (1970); and have the right to subpoena witnesses and documentary evidence and objects. Fed.R.Crim.P. 17(a), (c); see 84 Stat. 926, 18 U.S.C. § 3334 (1970) (which makes the Federal Rules of Criminal Procedure applicable to special federal grand juries). Under Connecticut law; General Statutes § 54-47; the right to subpoena witnesses and to the production of documents before a one-man grand jury is specifically granted.

In order to determine whether the defendant is in contempt, it is necessary to determine whether any of the questions asked should have been answered after a fifth amendment claim was made. If a question is improper, it need not be answered and no contempt would thus be created. Because a finding of contempt means incarceration, the court must consider each question anew to decide the basic issue.

In the present case the court gleans from what counsel has indicated that the defendant is a potential accused rather than a mere witness. He was represented by counsel pursuant to General Statutes § 54-47 (e). The United States Court of Appeals, Second Circuit, in 1965 refused to restrict the prosecutor's right to call a prospective accused before a grand jury; United States v. Winter,348 F.2d 204, 207, cert. denied, 382 U.S. 955; although in 1955 the same court presumed that "as a matter of ethics or fair play or policy, a prosecutor would in all cases refrain from calling as a witness before a Grand Jury any person who is de jure or de facto an accused." United States v. Scully, 225 F.2d 113,116, cert. denied, 350 U.S. 897. The court went on to observe (p. 116) that the "absence of appeals to this court involving the problem ... would seem to indicate that some such rule or practice is observed in the prosecutors' offices in this circuit."²

There are of course differences between the federal special grand jury and the Connecticut one-man grand jury. The former appears to have greater powers than the latter. It can both investigate and indict, and in the process may file reports.United States v. Ceccerelli, 84 Stat. 923-26, 18 U.S.C. § 3331-3334 (1970); 350 F. Sup. 475, 479. The Connecticut one-man grand jury cannot indict; it can only report. General Statutes § 54-47 (c). Thus the questioning of a potential defendant before a special federal grand jury does not present a situation any different from that before a regular grand jury. The Connecticut one-man grand jury does, however, differ because it leads only to a report. Nevertheless it is conceivable that such a report can be colored by a conscious and flagrant attempt to build the state's case out of inferences arising from the use of testimonial privilege. See Fletcher v.United States, 332 F.2d 724; United States v.Maloney, 262 F.2d 535.

This issue has not, however, been raised by the defendant, nor is there anything in the record before the court that would indicate that the conditions found in Maloney and Fletcher exist here. The claimed privilege must therefore be judged solely as to each question asked, in the light of the federal rule set forth in Hoffman v. United States, 341 U.S. 479, and Malloy v. Hogan, 378 U.S. 1. If it is "evident from the implications of the question, in the setting in which it ... [was] asked, that a responsive answer to the question or an explanation of why it ... [could not] be answered might be dangerous because injurious disclosure could result," the question need not be answered. Hoffman v. United States, supra, 486.

The court rules as follows as to each numbered question: (5) objection sustained; (6) objection sustained; (7) objection sustained; (8) objection sustained; (9) objection sustained; (10) objection sustained; (11) objection overruled; (12) objection overruled; (13) objection overruled; (14) objection sustained; (15) objection overruled; (16) objection sustained; (17) objection sustained; (18) objection sustained; (20) objection sustained; (21) objection sustained; (22) objection sustained; (24) objection overruled; (25) objection sustained; (26) objection sustained; (27) objection overruled; (29) objection overruled; (33) objection sustained.

In making the above determinations, the court has had little before it except the record on file and brief statements of counsel which do not disclose the detailed background of this matter. There is, however, sufficient information to rule on the questions, and, giving the defendant the benefit of every doubt, it appears that he should have answered questions 11, 12, 13, 15, 24, 27, and 29, in addition to the questions he has now agreed to answer. To this extent he is found in contempt of court as to these questions.

II The sole remaining issue concerns the request to the defendant before the one-man grand jury to submit certain handwriting exemplars, which he refused to do, claiming his privilege against self-incrimination. The recent cases of UnitedStates v. Dionisio, 410 U.S. 1, dealing with voice exemplars, and United States v. Mara, 410 U.S. 19, dealing with handwriting exemplars, preempt the issue raised by the defendant and clearly establish that the fifth amendment does not protect a witness before a grand jury from submitting handwriting exemplars. In these cases the defendants were informed that they were potential defendants in a criminal prosecution. The court stated in Dionisio (p. 5) that requiring the display of identifiable physical characteristics infringes no interest protected by the fifth amendment because it does not involve any physical or moral compulsion to extort communications. The same is true of a blood sample.Schmerber v. California, 384 U.S. 757, 764. A handwriting exemplar, in contrast to the content of what is written, is an identifying physical characteristic outside the protection of the fifth amendment.

Furthermore, the fourth amendment does not bar handwriting exemplars on the grounds of a lawless governmental intrusion upon the privacy of "persons." It protects people, but not places. Only when (1) there has been a "seizure" of the person necessary to bring him into contact with government agents and (2) a subsequent search for and seizure of the evidence, is there a fourth amendment violation. The compulsory production of exemplars from a grand jury witness turns on the same dual considerations, i.e. whether the initial compulsion to appear before the grand jury or the subsequent directive to provide handwriting exemplars was an unreasonable "seizure" within the fourth amendment.

The compulsion to appear before the grand jury is not a "seizure," and the directive to provide handwriting exemplars, which are constantly exposed to public view, is no infringement of the defendant's rights under the fourth amendment. Hence, absent any protected fourth amendment interest, there is no requirement that the grand jury satisfy even minimal requirements of "reasonableness," and therefore no necessity for a preliminary showing of reasonableness. United States v. Dionisio, supra, 8, 13-15.

The defendant would have this court overrule these decisions of the United States Supreme Court but offers no authority for such a course of action except the assertion that they are wrong and therefore this court should "start the ball rolling right here" to prove this true. The court is flattered with counsel's suggestion that it has such power, but it fears the day has not yet arrived when the Superior Court of the state of Connecticut can overrule the United States Supreme Court. Furthermore, this court is of the opinion that it is not very likely such a day will ever arrive in the near or distant future. Although the court differs with the defendant's appraisal of the Dionisio and Mara cases, supra, it must also concede that the United States Supreme Court is not always right and has had to overrule itself in a number of instances over the years.³

In the light of Dionisio and Mara, the defendant was in contempt of the one-man grand jury in refusing to provide handwriting exemplars.

III Punishment for the contempt here evidenced falls within General Statutes §