321 A.2d 862 | Conn. Super. Ct. | 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. *55
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 *57
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,
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. *58
Special federal grand juries now operate under the Special Grand Jury Act;
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 §
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,
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,
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 *62 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.
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 *63 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 *64 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.