259 Conn. 487 | Conn. | 2002
Opinion
The dispositive issue in this writ of error is whether, pursuant to General Statutes § 51-33,
The record discloses the following undisputed facts. In connection with the death of Bobbie Gallo during an alleged armed robbery at Gallo’s Liquor Store in Danbury on January 18, 1999, the plaintiff was charged with and convicted of felony murder in violation of General Statutes § 53a-54c, first degree robbery in violation of General Statutes § 53a-134 (a) (2), and five counts of tampering with a witness in violation of General Statutes § 53a-151 (a). Following his sentence to a total effective sentence of ninety years imprisonment, the plaintiff appealed from the judgment of conviction to this court. That appeal is still pending.
Thereafter, in connection with the same events, the state proceeded to trial in the case against the plaintiffs codefendant, Tommie Martin, charging that he had conspired with the plaintiff to commit robbery in the first
The court permitted the state to call the plaintiff as a witness at Tommie Martin’s trial, but ordered that the initial questioning take place outside the presence of the jury. Before the state began its questioning, the trial court advised the plaintiff “that in regard to . . . your testimony connected to the January 18, 1999 robbery and shooting at Gallo’s Liquor Store, you don’t have a fifth amendment privilege. And, I’m ordering you to answer questions that are put to you. If you fail to
Following some preliminary questions, the state asked the plaintiff the following question: “Did you go to 32 Fairfield Ridge in Danbury, Connecticut in the early morning hours of January 18, 1999?” When the plaintiff refused to answer, the court found him in contempt and sentenced him to six months imprisonment. The state then asked the plaintiff whether he had “testified] previously that [he], Tommie Martin, and Nicole Hams drove to the BP gas station on January 18,1999, in the early morning hours?” He again refused to answer, resulting in a second contempt finding and an additional sentence of six months imprisonment.
The court thereafter cautioned the plaintiff: “I’m going to remind you once again, you do not have a fifth amendment privilege in regard to the events of January 18, 1999, at Gallo’s Liquor Store, and I’m warning you to testify, and if you don’t, I’m going to hold you in contempt of court.” Thereafter, the state asked the plaintiff a series of questions, to which the plaintiff again invoked his privilege against self-incrimination and refused to answer. The questions were as follows: (1) “[D]id Tommie Martin, your cousin, come out of the house when you pulled up—when you got to 32 Fairfield Ridge?”; (2) “Tommie [Martin] was with you at this time, wasn’t he?”; (3) “Did you change your story
Later that afternoon, the state called the plaintiff as a witness before the jury. During his testimony, the plaintiff invoked the privilege against self-incrimination eight more times in response to the following questions: (1) “[W]hen you saw [the gun that was the alleged murder weapon] in your apartment in early January of 1999, was . . . Tommie Martin . . . present at the time?”; (2) “[H]ave you testified previously that that gun was in your apartment at the same time Tommie Martin was in your apartment?”; (3) “Did you testify previously that [Tommie Martin] didn’t have a ride in a prior court proceeding?”; (4) “Did you testify previously . . . that when you got to [Harris’] house, that
At the conclusion of the plaintiffs testimony, the trial court, outside the presence of the jury, imposed fines for each of its eight additional contempt findings. Therefore, in total, the trial court found the plaintiff in contempt eighteen times and sentenced him to twelve months imprisonment and $1600 in fines.
On appeal, the plaintiff claims that he properly exercised his privilege against self-incrimination and that the trial court therefore, improperly held him in contempt. In support of his claim, the plaintiff reiterates the arguments that he had made before the trial court. The trial court, however, did not address all of the plaintiffs claims, focusing instead on only one factor— that, by testifying at his own trial, the plaintiff had
“The present case, which involves a review of a summary criminal contempt proceeding, comes before us on a writ of error which is the sole method of review of such proceedings. Whiteside v. State, 148 Conn. 77, 78-79,167 A.2d 450 (1961); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853 (1911). The scope of our review reaches only those matters appearing as of record. State v. Assuntino, 180 Conn. 345, 347, 429 A.2d 900 (1980); Reilly v. State, 119 Conn. 217, 223, 175 A. 582 (1934). In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. Tyler v. Hamersley, 44 Conn. 393, 413 (1877). Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt; Goodhart v. State, supra [63]; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. May-
This case implicates only the first question set forth in Jackson, that is, whether the plaintiffs conduct was legally susceptible of constituting a contempt. Id., 500. The plaintiff claims that under the circumstances of this case, he properly refused to answer the questions, and, accordingly, that the trial court improperly determined, based upon his prior conviction of felony murder, that the plaintiff no longer could invoke his privilege against self-incrimination. Therefore, we begin our analysis with our well settled law regarding a witness’ invocation of the fifth amendment privilege.
A court may not deny a witness’ invocation of the fifth amendment privilege against compelled self-incrimination 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 [a] tendency to incriminate.” (Internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986), quoting Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951). “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.” Hoffman v. United States, supra, 486-87; State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). In appraising a fifth amendment claim
The plaintiff contends that the trial court improperly concluded that he no longer could invoke the privilege against self-incrimination as a result of having testified in a prior proceeding.
It is well settled that a waiver of the self-incrimination privilege in one proceeding does not affect the rights of a witness in another, separate proceeding. State v. Grady, 153 Conn. 26, 34, 211 A.2d 674 (1965)
The state’s second argument—that the questions relating to the plaintiffs prior testimony were merely foundational questions and were, therefore, not incriminatory in nature—is equally unavailing. Again, the court drew no distinction between foundational and other questions. It did not rule on a question-by-question basis, but, rather, the court issued a preliminary blanket ruling that required the plaintiff to answer any and all questions pertaining to the robbery. Moreover, the mere confirmation of the existence and accuracy of former incriminating testimony, albeit by implication, could itself be incriminating. United States v. Miranti, 253
Finally, the state argues that the trial court’s contempt findings were proper because the plaintiffs testimony had been compelled, and consequently, the testimony could not be used against him for any purpose, either in connection with a retrial, should he prevail on appeal, or any other trial. Therefore, according to the state, because his compelled testimony could not be used, the plaintiff could not invoke his fifth amendment privilege to not testify. This argument is flawed both as a matter of logic and law. The court properly cannot compel testimony from a witness who has a legitimate fifth amendment privilege. A court properly can compel a witness to testify only when there is no legitimate privilege. Accordingly, when a court orders a witness cloaked with the privilege to testify, that witness retains the right to exercise the privilege, to refuse to testify, and to thereafter test the validity of the privilege on appeal if the court finds him in contempt. The state’s argument here suggests that when a court improperly orders a witness to testify, it essentially grants him use immunity, notwithstanding the otherwise proper exercise of the privilege, the trial court’s lack of power to grant such use immunity, and the state’s failure to invoke General Statutes § 54-47a.
We conclude that the trial court in the present case improperly determined that the plaintiff could no longer invoke the privilege against self-incrimination because of his testimony in a prior proceeding, and we reject the state’s alternate grounds for affirming the judgment of contempt. Accordingly, we conclude that each of the contempt findings must be vacated.
The judgment is reversed and the case is remanded with direction to vacate the contempt findings.
In this opinion the other justices concurred.
General Statutes § 51-33 provides: “Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly maimer; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”
The appeal of the plaintiffs criminal conviction pending in this court is captioned State v. Martin, Docket No. SC 16448.
The trial court originally had imposed a $500 fine pursuant to General Statutes § 51-33a for each of the sixteen contempt findings for which the plain! iff did not receive a term of imprisonment. In a subsequent correction, however, the trial court noted that the proper authority for the contempt findings was General Statutes § 51-33, which allows a maximum fine of $100 per finding. Thereafter, the court corrected the amount of the fines imposed accordingly.
Although it was not the basis of the trial court’s ruling, the state had stated in its motion in limine that the plaintiff no longer could invoke the privilege because he already had been convicted and sentenced for felony mmder and first degree robbery arising out of the incident at Gallo’s liquor Store. The plaintiff claims in his brief to this court that, with respect to those events, he continues to retain his privilege against self-incrimination until the judgment of conviction becomes final. We agree with the plaintiff.
The weight of authority permits a witness whose conviction has not been finalized on direct appeal to invoke the privilege against self-incrimination and to refuse to testify about the subject matter which formed the basis of his conviction. See Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) (only where sentence fixed and judgment of conviction is final is there no basis for assertion of privilege); Ottomano v. United States, 468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S. 1128, 93 S. Ct. 948, 35 L. Ed. 2d 260 (1973) (accused could assert self-incrimination privilege on charge on which he already had been convicted when proceedings that could result in new trial were still pending); State v. Gretzler, 126 Ariz. 60, 88, 612 P.2d 1023 (1980), cert. denied, 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983) (“[t]he Fifth Amendment privilege is available to a convicted person when his conviction or sentence is being appealed”); People v. Lopez, 110 Cal. App. 3d 1010, 1021, 168 Cal. Rptr. 378 (1980) (“a witness who has been convicted of a crime and who has appealed that conviction cannot be compelled to testify in the trial of a co-defendant pending the resolution of that appeal”); People v. Villa, 671 P.2d 971, 973 (Colo. App. 1983) (self-incrimination privilege of convicted coaccused “continues” where he “is appealing his conviction ... in order to protect him[self] from the subsequent use of self-incriminating statements in the event relief is granted”); Landeverde v. State, 769 So. 2d 457, 46-M55 (Fla. App. 2000) (witness, who was convicted felon with pending motion to reduce his sentence, retained privilege against self-incrimination with regard to charges on which he was convicted); Landenbergerv. State, 519 So. 2d 712, 713 (Fla. App. 1988) (“[i]n the absence of a [grant] of immunity, a convicted felon with an appeal pending has a Fifth Amendment privilege not to testify [when called as a witness], and this privilege continues throughout the pendency of the appeal [of his conviction]”); State v. Linscott, 521 A.2d 701, 703-704 (Me. 1987) (witness who has convictions pending on appeal may
In State v. Grady, supra, 153 Conn. 29, the defendant was convicted under an information in two parts; the first part charged him with several substantive offenses and the second part charged him with being an “ ‘habitual criminal’ ” under then General Statutes § 54-121. On appeal, this court held that, because the defendant voluntarily testified only at his trial under the first part of the information, his testimony from that trial should not have been read to the jury selected to hear the trial on the second part of the information. Id., 34-35.
See, e.g., United States v. Gary, 74 F.3d 304, 313 (1st Cir.), cert. denied, 518 U.S. 1026, 116 S. Ct. 2567,135 L. Ed. 2d 1084 (1996) (hornbook law that waiver of privilege is limited to particular proceeding in which witness appears); United States v. Yurasovich, 580 F.2d 1212, 1220 (3d Cir. 1978) (“ ‘[i]t is well settled by the overwhelming weight of authority that a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert [the privilege] as to the same matter in a subsequent trial or proceeding’ ”); United States v. Housand, 550 F.2d 818, 821 n.3 (2d Cir.), cert. denied, 431 U.S. 970, 97 S. Ct. 2931, 53 L. Ed. 2d 1066 (1977) (by weight of authority, fact that witness had testified at prior proceeding did not waive his right to claim privilege against self-incrimination at separate proceeding); United States v. Goodman, 289 F.2d 256, 259 (4th Cir. 1961) (“[i]t has been uniformly held that [prior testimony] . . . cannot constitute a waiver of the [sefi-incrimination] privilege with respect to the same matter in a subsequent legal proceeding”), vacated on other grounds, 368 U.S. 14, 82 S. Ct. 127, 7 L. Ed. 2d 75 (1961); Ballantyne v. United States, 237 F.2d 657, 665 (5th Cir. 1956), quoting Poretto v. United States, 196 F.2d 392, 394 (5th Cir. 1952) (“ ‘[t]he constitutional privilege attaches to the witness in each particular case in which he is called upon to testify, without reference to his declarations at some other time or place or in some other proceeding’ ”).
See, e.g., State v. Spiegel, 710 So. 2d 13, 16-17 (Fla App.), cert. denied, 728 So. 2d 205 (Fla. 1998) (“waiver of the privilege [against self-incrimination] in one proceeding does not affect the right of a witness or accused to invoke the privilege as to the same subject matter in another independent proceeding”); Anderson v. Southern Guaranty Ins. Co., 235 Ga. App. 306, 310, 508 S.E.2d 726 (1998) (witness’ “election to testify in [a] prior criminal trial did not waive her rights under the Fifth Amendment in [subsequent separate proceeding]”); Novak v. Rathnam, 106 Ill. 2d 478, 484, 478 N.E.2d 1334 (1985) (“[a]n accused who testified in one proceeding does not waive his right to invoke the self-incrimination privilege in a separate and independent proceeding”); State v. Knowles, 395 So. 2d 678, 680 (La. 1981) (“[o]ne can waive silence at one trial and assert the right as to [the] same matter in a subsequent [separate] trial”); State v. Linscott, 521 A.2d 701, 703 (Me. 1987) (witness who previously testified at own criminal trial still entitled to invoke self-incrimination privilege at subsequent trial of alleged accomplice; noting this “nearly universal rule,” contempt finding reversed); Commonwealth v. Borans, 338 Mass. 453, 457-58, 446 N.E.2d 703 (1983) (“ ‘[i]t is the majority
General Statutes § 54-47a provides: “(a) Whenever in the judgment of the Chief State’s Attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence, any violation which is an offense under the provisions of title 22a, corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, fraud
“(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”