Commonwealth v. LeClair

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SJC-11469
COMMONWEALTH vs. JASON J. LECLAIR & another.1
Hampshire. March 6, 2014. - October 10, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, &
Lenk, JJ.2
Contempt. Practice, Criminal, Contempt. Constitutional Law,
Self-incrimination. Witness, Self-incrimination.
Complaint received and sworn to in the Northampton Division of
the District Court Department on May 2, 2012.
An adjudication of contempt was made by W. Michael Goggins, J.
The Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Paul R. Rudof, Committee for Public Counsel Services (Dana
Goldblatt with him) for the intervener.
Cynthia M. Von Flatern, Assistant District Attorney, for the
Commonwealth.
Michael C. Walsh & Stephanie K. Fattman, pro se, amici curiae,
submitted a brief.
DUFFLY, J. A nonimmunized witness in a criminal trial
1
Mark Sheehan, intervener.
2
Chief Justice Ireland participated in the deliberation on this
case prior to his retirement.
2
repeatedly refused to answer questions posed by the prosecutor
concerning his use of illegal drugs on the ground of the privilege
against self-incrimination. The prosecutor represented to the
witness and the trial judge that the Commonwealth had no intention
of pursuing such a prosecution, but when the witness, advised by his
attorney, refused to answer, the judge directed the witness to do so.
When the witness continued to refuse, the judge found the witness in
summary criminal contempt and imposed a sentence of ninety days'
incarceration, which he stayed pending resolution of the witness's
interlocutory appeal.
In considering the witness's appeal, we are confronted with the
question whether the judgment of contempt should not have entered
because, regardless of the Commonwealth's intention, the compelled
admission was a violation of the witness's privilege against
self-incrimination under the Fifth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of Rights.
We conclude that, in these circumstances, the witness validly invoked
his privilege against self-incrimination, that his compelled
responses to such questioning did not constitute a waiver of the
privilege, and that the judgment of summary contempt should not have
entered.
Background and prior proceedings. On May 2, 2012, the defendant
was arraigned on a charge of assault and battery, G. L. c. 265, § 13A,
as a result of an incident between the defendant and his girl friend
3
that had taken place in his friend Mark Sheehan's apartment at
approximately 10 A.M. that morning.3
On August 1, 2012, the day that trial was scheduled to begin,
the Commonwealth indicated its intent to call Sheehan as a witness,
and the trial judge appointed counsel to represent Sheehan with
respect to a potential assertion of a Fifth Amendment privilege
against self-incrimination. Sheehan's counsel reported that Sheehan
did indeed have a Fifth Amendment privilege not to testify, because,
based on his answers to questions expected to be posed to him, the
testimony could expose him to criminal charges of possession of a
controlled substance and conspiracy to violate the drug laws.
Counsel stated that Sheehan intended to assert that privilege.
Following a brief in camera hearing,4 the judge ruled that the
invocation of the privilege was not valid because Sheehan had not shown
that he faced a real risk that his answers to questions would "tend
to indicate involvement in illegal activity, as opposed to a mere
3
Mark Sheehan telephoned police after he had been awakened by
the defendant yelling, "Call the police; call the police," amid a
confrontation between the defendant and his girl friend.
4
When the judge initially asked counsel to describe the
substance of Sheehan's claim in open court, counsel requested an in
camera hearing because she had informed her client that his statements
to her would remain confidential; the judge declined to conduct the
hearing in camera. Upon further questioning, counsel then informed
the judge, without detail, that Sheehan's statements would involve
an admission to illegal drug use, which could be used to impeach him.
After counsel explained the criminal charges she believed might be
implicated, the judge conducted a brief in camera hearing concerning
the substance of Sheehan's potential testimony, as presented by his
counsel.
4
imaginary, remote, or speculative possibility of prosecution." See
Commonwealth v. Martin, 423 Mass. 496, 502 (1996).
The jury-waived trial commenced, and the Commonwealth called
Sheehan as its first witness. On direct examination, the prosecutor
did not pose any questions on Sheehan's use of illegal drugs during
the evening prior to the incident. On cross-examination, defense
counsel first asked Sheehan about his use of alcohol that evening,
and then inquired as to Sheehan's use of illegal drugs. In response,
Sheehan invoked his privilege against self-incrimination. When the
judge nonetheless instructed him to respond to defense counsel's
questions concerning whether he had used illegal drugs on the night
in question, and what type of drugs, Sheehan replied that he had used
cocaine. When defense counsel asked Sheehan how much cocaine he had
used, Sheehan's counsel objected, and the objection was overruled.
On his counsel's advice, Sheehan thereafter continued to invoke his
privilege and declined to respond to counsel's questions on the amount
of cocaine Sheehan had used, or to any further questions on drug use.
The judge admonished Sheehan that his refusal could result in
immediate criminal sanctions. After a brief recess, the judge
explained that refusal to answer questions based on a mistaken
assertion of Fifth Amendment privilege would be summarily punished
as criminal contempt. He then inquired into the possibility of
5
immunizing Sheehan.5 After another brief recess during which the
prosecutor consulted with his office, the prosecutor reported that
no formal offer of immunity could be made. The prosecutor stated
also, however, "I don't think that it's something we have an interest
in pursuing at this time." He then proffered a written statement in
which he represented that should Sheehan testify "to the use of
controlled substances under [G. L. c. 94C] on that occasion the
Commonwealth has no present, nor future interest in the prosecution
of . . . Sheehan for such activity," and that Sheehan's "testimony
alone that he consumed a controlled substance on that occasion is not
enough to bring a formal prosecution against . . . Sheehan for that
activity."
Sheehan's counsel informed the judge that she had advised her
client of his privilege not to testify in response to questions
regarding illicit drug use, and that her client would continue to
invoke that privilege; counsel sought a stay of any criminal sanction,
and stated that if it were determined on appeal that Sheehan had no
valid Fifth Amendment privilege, he would testify immediately and
purge the contempt. The judge once again warned that Sheehan risked,
on a finding of criminal contempt, an immediate sanction of
incarceration, and inquired whether that changed counsel's position.
5
Later in the proceedings, the judge informed the parties that,
upon further inquiry, it appeared that immunity was not available in
the District Court. The judge was correct. See G. L. c. 233, § 20E;
Commonwealth v. Russ R., 433 Mass. 515, 520-522 (2001).
6
Sheehan's counsel informed the court that her client was "asserting
his Fifth Amendment right not to testify, understanding that . . .
he may be jailed for doing so." At that point, the judge told Sheehan
directly that his continued refusal to answer the question regarding
drug use was "impermissible, and that contempt sanctions may be
imposed, and that that may include criminal sanctions, and that that
may include a penalty of up to [three] months incarceration, or [a]
$500 fine."6 See Mass. R. Crim. P. 43, 378 Mass. 919 (1979).
The first question posed by defense counsel on resuming his
cross-examination was whether on the morning of May 2 Sheehan had been
using cocaine, to which Sheehan responded by invoking his privilege
under the Fifth Amendment. The judge thereupon found Sheehan in
summary criminal contempt for failure to answer questions based on
6
Counsel for Sheehan again objected, stating that she understood
the matter to be in the nature of civil, not criminal, contempt,
because the witness intended to purge himself of contempt upon a
determination by an appellate court that his invocation was not valid.
The judge disagreed, noting that the failure could be considered
criminal contempt where the witness refused in the middle of trial
to answer a question as to which the court had ruled he had no valid
privilege and had ordered the witness to testify. When the judge
repeated his warning to the witness that continued refusal could
result in a finding of criminal contempt "that would expose [the
witness] to incarceration, beginning forthwith, of up to [ninety] days
in a [h]ouse of [c]orrection or a $500 fine," the witness stated:
"Your Honor, what I don't understand is, as a[n] American, why I cannot
exercise a constitutional right." Responding to further statements
made by the judge, the witness indicated that he respected that there
was a dispute regarding the question and understood the sanctions he
faced, whereupon cross-examination resumed.
7
a mistaken claim of the Fifth Amendment privilege,7 ordered that he
be incarcerated for ninety days, and stayed the sentence pending the
resolution of the interlocutory appeal. The criminal trial itself
was also stayed during the pendency of the appeal. Sheehan's motion
for reconsideration was denied. Sheehan was allowed to intervene in
the criminal proceeding, and he appealed the judgment of contempt to
the Appeals Court. We transferred the case to this court on our own
motion.
Discussion. "The right of a witness not to incriminate himself
7
On a form captioned "Criminal Contempt, Summary Judgment," the
judge checked off the following as the bases for the summary action:
"The conduct occurred during court proceedings and in the judge's
sight or hearing"; "Contemnor had been warned"; "Punishment does not
exceed three months['] imprisonment or $500 fine"; and "Immediate
adjudication of contempt was necessary to prevent disorder or
disruption in courtroom." In the block requesting a description of
the conduct, the judge wrote:
"Mr. Sheehan is a Comm. witness in an A&B prosecution.
Counsel was apptd to represent him in connection w/ a possible
5th Amendment privilege. His atty stated at side bar and later
in camera that the privilege was his potential prosecution for
possession of cocaine and/or conspiracy to violate drug laws.
Reason she claimed was that [the witness] would testify that he
had been using cocaine at the time of the alleged A&B. Court
ruled that was insufficient basis and the invocation of the
privilege was denied. Ordered to testify by the court, he
refused three times and was found in contempt."
In a footnote, the judge added:
"Mr. Sheehan was friends w/ def. and was a reluctant
witness. Ct. was concerned his claim of drug use was a
fabrication for trial and lacked credibility and was being used
as a vehicle to facilitate a path to acquittal for his friend,
the [defendant], so that the evidence of drug use was so
imaginary, remote or speculative that it should not serve as the
basis for invocation of 5th Amendment privilege."
8
is secured by both the Fifth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of Rights."
Taylor v. Commonwealth, 369 Mass. 183, 187 (1975). Although "art.
12 of the Massachusetts Declaration of Rights provides broader
protection from self-incrimination than does the Fifth Amendment to
the United States Constitution," Pixley v. Commonwealth, 453 Mass.
827, 832 n.6 (2009), citing Commonwealth v. Mavredakis, 430 Mass. 848,
858–859 (2000), "[s]ince the decision of the United States Supreme
Court in Malloy v. Hogan, 378 U.S. 1 (1964), which held that the
Fourteenth Amendment guarantees to a witness testifying in a State
court the protection of the Fifth Amendment, we have applied Federal
standards in determining whether a claim of privilege is justified."
Taylor v. Commonwealth, supra, citing Murphy v. Commonwealth, 354
Mass. 81 (1968).
"The proscription of the Fifth Amendment that '[n]o person . . .
shall be compelled in any criminal case to be a witness against
himself' may be invoked whenever a witness reasonably believes that
the testimony could be used in a criminal prosecution or could lead
to other evidence that might be so used." Pixley v. Commonwealth,
supra at 832, citing Kastigar v. United States, 406 U.S. 441, 444–
445 (1972). See Commonwealth v. Funches, 379 Mass. 283, 289 (1979).
Because the privilege against self-incrimination is "a fundamental
principle of our system of justice," it "is to be construed liberally
in favor of the claimant." Commonwealth v. Borans, 388 Mass. 453,
9
455 (1983). Accordingly, "a refusal to testify on Fifth Amendment
grounds must be upheld unless it is '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." Id. at 456, quoting Hoffman v. United
States, 341 U.S. 479, 488 (1951).
Here, there was a more than adequate basis from which to determine
that the anticipated testimony would have been an admission of
violations of the drug laws that would tend to incriminate Sheehan,
that the testimony could lead to other evidence that might have been
used in a criminal prosecution, and therefore that invocation of the
privilege not to testify was justified. The incriminatory potential
of the testimony was apparent from the nature of the specific questions
intended to be propounded, concerning Sheehan's drug use and his
ability to perceive and remember the incident; from this it was evident
that there was a "real risk that his answers to questions [would] tend
to indicate his involvement in illegal activity." Commonwealth v.
Martin, 423 Mass. 496, 502 (1979). See Murphy v. Commonwealth, supra
at 84, quoting Hoffman v. United States, supra at 486-487 (to sustain
privilege "it need only be 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 cannot be answered
might be dangerous because injurious disclosure could result").
That the substance was not available to be tested would not, in
10
and of itself, preclude prosecution for possession of a controlled
substance approximately three months prior to the admission, see
Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ("Proof that a
substance is a particular drug need not be made by chemical analysis
and may be made by circumstantial evidence"), and, in any event, such
testing would not be required in a prosecution for conspiracy to
violate the drug laws. See Commonwealth v. Funches, 379 Mass. 283,
288 n.5 (1979) ("Answering the questions concerning a conversation
about drugs could lead to prosecution for conspiracy to violate the
drug laws, G. L. c. 94C, § 40, or for the substantive offense, G. L.
c. 94C, §§ 34-35").
Moreover, assuming, as the Commonwealth argues, that the
confession to possession or use of an illicit substance is not alone
sufficient to support a conviction, we nonetheless apply broad and
"highly protective" standards to determine whether a claim of
privilege is justified. Commonwealth v. Martin, supra at 502. Any
admission by Sheehan to drug use on the night in question might have
been used in questioning others concerning Sheehan's drug use on that
night, or to provide leads for a subsequent criminal investigation.
"The privilege 'not only extends to answers that would in themselves
support a conviction . . . but likewise embraces those which would
furnish a link in the chain of evidence needed to prosecute the
claimant.'" Commonwealth v. Borans, supra at 456, quoting Hoffman
v. United States, supra at 486. See, e.g., National Fed'n of Fed.
11
Employees v. Greenberg, 983 F.2d 286, 292 (D.C. Cir. 1993) ("Admitting
the use of illegal drugs, at least use so recent that the statute[]
of limitations [has] not run, would doubtless be incriminating");
Commonwealth v. Koehler, 614 Pa. 159, 213 (2012) (concluding trial
judge correctly informed witness she had Fifth Amendment privilege
not to answer questions regarding her drug use at time of incident
about which she was testifying). Whether, as the judge believed,
Sheehan may have had an additional motive not to testify was irrelevant
where the circumstances otherwise support the determination that his
responses would tend to incriminate him.
Nor was Sheehan's invocation rendered invalid because of the
prosecutor's assertion that the Commonwealth did not intend to
prosecute him on the basis of his testimony regarding the use of
illicit drugs on the night in question.8 See Commonwealth v. Martin,
supra at 503 n.3 ("The prosecutor’s denial of an intent to prosecute
a witness is not sufficient to defeat an assertion of the privilege");
Commonwealth v. Borans, supra at 459, and cases cited. We have not
embraced a rule that "would require the trial court, in each case,
8
Even had the District Court judge had the authority to issue
an immunity order, see note 5, supra, art. 12 of the Massachusetts
Declaration of Rights requires that an immunized witness be granted
transactional immunity, which protects a witness from being
prosecuted not only by an individual assistant district attorney or
by a district attorney's office, but also by any State prosecutorial
authority. See Vaccari, petitioner, 460 Mass. 756, 759-761 & n.5
(2011). An assertion by an assistant district attorney for a single
county could not suffice to meet this requirement.
12
to assess the practical possibility that prosecution would result from
incriminatory answers." United States v. Miranti, 253 F.2d 135, 139
(2d Cir. 1958). In any event, "[t]his is not a case where recalcitrant
witnesses have been granted immunity and then continued to refuse to
testify." Taylor v. Commonwealth, supra at 188-189.
We also reject the Commonwealth's argument, advanced for the
first time on appeal, that Sheehan waived his privilege when he
answered two questions posed by defense counsel on cross-examination.
Sheehan's answers were given in response to the judge's instruction
that he was required to answer, and came after Sheehan had invoked
his privilege prior to trial, and repeatedly during trial, immediately
before the judge instructed him that he must respond. See
Commonwealth v. Borans, supra at 458-459. In these circumstances,
Sheehan's testimony "was not so freely and voluntarily given as to
effect a waiver of his privilege on later questioning." Taylor v.
Commonwealth, supra at 193. See Commonwealth v. King, 436 Mass. 252,
259 (2002);9 Commonwealth v. Koonce, 418 Mass. 367, 378 (1994).
9
In Commonwealth v. King, 436 Mass. 252, 259 (2002), we described
the doctrine of waiver by prior testimony as follows:
"[T]he doctrine of waiver by prior testimony . . . is based on
two pragmatic ramifications of the witness's prior voluntary,
but potentially incriminating, testimony. One is that 'when a
witness has freely testified as to incriminating facts,
continued testimony as to details would no longer tend to
incriminate.' [Taylor v. Commonwealth, 369 Mass. 183, 190
(1975)]. The second rationale given in support of the doctrine
of waiver by testimony is that 'allowing the testimony to remain
in a witness-selected posture would result in serious, unjust
13
Sheehan's testimony "could hardly be considered voluntary; he had
sought to claim his privilege against self-incrimination and [the
trial] judge had ruled that he had no such privilege." Commonwealth
v. Clemente, 452 Mass. 295, 318 n.33 (2008), cert. denied, 555 U.S.
1181 (2009) (witness did not waive privilege by testifying before
grand jury where judge ruled he had no such privilege).10
Judgment of contempt vacated.
distortion; and the witness, having chosen to answer when he
could have remained silent, "cannot be allowed to state such
facts only as he pleases to state, and to withhold other facts."'
Id., quoting Commonwealth v. Price, 10 Gray 472, 476 (1858)."
10
Because of our decision that the judgment of contempt should
not have entered, we need not reach the intervener's argument that
civil, rather than criminal, contempt would have been applicable in
these circumstances. We emphasize, however, that "we give wide
latitude to persons claiming privilege under the Fifth Amendment in
order to give meaning to the privilege." Commonwealth v. Corsetti,
387 Mass. 1, 9 n.11 (1982).