Attorney General v. Colleton

• Decision Date: 28 December 1982
• Citation: 387 Mass. 790,444 N.E.2d 915
• Parties: ATTORNEY GENERAL v. Francis X. COLLETON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 915

444 N.E.2d 915

387 Mass. 790

ATTORNEY GENERAL v. Francis X. COLLETON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 4, 1982.

Decided Dec. 28, 1982.

Bernadette L. Sabra, Asst. Atty. Gen. (Robert Singer, Asst. Atty. Gen., with her), for plaintiff.

J. Albert Johnson, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

The facts pertinent to this appeal are as follows. On October 30, 1980, the Attorney General served Civil Investigative Demand (C.I.D.) No. 80-36 on the defendant. G.L. c. 93A, § 6. The purpose of the demand was to investigate as possible unfair or deceptive acts, in violation of G.L. c. 93A, § 2, the failure of a yacht chartering company, Sea Quest, Inc., doing business as St. Tropez Virgin Island Charters, to return consumer security deposits after termination of vessel charters as provided in the charter agreement. The C.I.D. requested the production of relevant documents and required the presence of Colleton so that he could be examined under oath by a staff member of the Attorney General's office. The office of the Attorney General had requested Colleton's presence on the belief that he, as apparent president of the chartering company, was engaged in, or had information pertaining to, the alleged violations of G.L. c. 93A, § 2.

Colleton appeared in the office of the Attorney General on November 25, 1980, in compliance with the C.I.D. At that time the defendant stated that he did not have any of the requested documents. After answering other preliminary questions, Colleton refused to answer any questions pertaining to Sea Quest, Inc., or St. Tropez Virgin Island Charters. The basis of the defendant's refusal was his claim of protection against self-incrimination under the Federal and State Constitutions. Counsel for the defendant reiterated the defendant's willingness to give testimony if he were granted immunity under G.L. c. 233, § 20E. The assistant attorney general stated that the Attorney General could not, and would not, petition to the Supreme Judicial Court for a grant of immunity pursuant to G.L. c. 233, § 20E, since she believed such procedure to be applicable only to grand jury proceedings. The oral examination was suspended.

Thereafter, on March 3, 1981, the Attorney General petitioned the Superior Court for an order to compel Colleton to testify. G.L. c. 93A, § 7. The petition alleged that G.L. c. 93A, § 6(7), granted immunity adequate to displace the constitutional privilege against self-incrimination. ¹ A hearing on the petition was held March 19, 1981. The Superior Court judge entered an order on April 3, 1981, denying the petition. The Attorney General appealed on May 19, 1981. We transferred the appeal to this court and now affirm.

The position of the Attorney General appears to be that (1) G.L. c. 93A, § 6(7), should be liberally interpreted to provide immunity from the use and derivative use of evidence compelled under the statute, and (2) such immunity is constitutionally adequate to displace the privilege against self-incrimination found in the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. Reliance is placed on Federal decisions, especially Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and the claim that recent decisions of this court, e.g., Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977), have adopted the Federal standard as to the scope of immunity necessary to displace the privilege under Massachusetts law. ² The Attorney General makes no argument that the defendant did not invoke properly the privilege against self-incrimination.

The defendant argues that (1) G.L. c. 93A, § 6(7), does not grant derivative-use immunity as required by Kastigar; (2) even if it does, a higher standard, namely transactional immunity, is required under Massachusetts law; and (3) to find transactional immunity in § 6(7) would require the court to "effectively re-write" the statute, an exercise in which we should not engage.

We consider the answers to the following questions as dispositive of this appeal: (1) Does Massachusetts law require no less than transactional immunity to displace the privilege against self-incrimination found in art. 12 of our Constitution? ³ To this question we answer, "Yes." (2) Does G.L. c. 93A, § 6(7), provide such transactional immunity? The answer is, "No." Accordingly, we affirm the order of the Superior Court without the necessity that we discuss arguments as to possible use and derivative-use interpretations of the statute's grant of immunity. We turn to the discussion of the relevant questions.

1. The privilege against self-incrimination has been heralded as "an important advance in the development of our liberty--'one of the great landmarks in man's struggle to make himself civilized.' " Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956), quoting E.N. Griswold, The Fifth Amendment Today 7 (1955). See Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 58-63, 84 S.Ct. 1594, 1598-1601, 12 L.Ed.2d 678 (1964); Note, Witness Immunity Statutes: The Constitutional and Functional Sufficiency of "Use Immunity," 51 B.U.L.Rev. 616, 617 (1971). "It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,' 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' United States v. Grunewald, 233 F.2d 556, 581-582 [2nd Cir.1956] (Frank, J., dissenting), rev'd, 353 U.S. 391 [77 S.Ct. 963, 1 L.Ed.2d 931] [1957]; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Quinn v. United States, 349 U.S. 155, 162 [75 S.Ct. 668, 673 99 L.Ed. 964] [1955]." Murphy v. Waterfront Comm'n, supra at 55, 84 S.Ct. at 1596. The privilege is so fundamental that, although it only protects against disclosures that a witness believes could be used or lead to other evidence that could be used in a criminal prosecution (Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 [1951] ), it can be invoked "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." Kastigar v. United States, supra 406 U.S. at 444, 92 S.Ct. at 1656. See Emery's Case, 107 Mass. 172, 183 (1871). It is in this spirit of respectful observance of the constitutional protections of the individual that we analyze the issue presented by the Attorney General: What is the minimum extent of immunity required to supplant the constitutional privilege against self-incrimination?

The fundamental values of the privilege often run counter to the public's right to every man's evidence. Cf. Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S.Ct. 1720, 1722 n. 2, 6 L.Ed.2d 1028 (1961). The concept of immunity has developed as the "rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify." Kastigar, supra 406 U.S. at 446, 92 S.Ct. at 1657. It is through immunity statutes supplanting the privilege that Legislatures have attempted to ease such tensions. See The Supreme Court 1971 Term, 86 Harv.L.Rev. 181, 183 (1972). The exchange is not a constitutionally sound bargain, however, if the statutory grant provides a lesser degree of protection than that which the witness enjoys by remaining silent in reliance upon the privilege. See Murphy v. Waterfront Comm'n, supra 378 U.S. at 78, 84 S.Ct. at 1609; Counselman v. Hitchcock, 142 U.S. 547, 585, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892).

Immunity only from the use of the compelled testimony and its fruits long had been held not to meet the Federal constitutional requirement of coextensiveness. See Counselman v. Hitchcock, supra at 564, 12 S.Ct. at 198. Yet, in Kastigar v. United States, supra, the United States Supreme Court departed from Counselman, which had held that nothing less than absolute immunity from subsequent prosecution based upon any transaction, matter, or occurrence about which an immunized witness testified or produced evidence supplanted the Fifth Amendment prohibition against compelled testimony. ⁴ See Counselman v. Hitchcock, supra at 586, 12 S.Ct. at 206. The Kastigar Court held that an immunity statute would satisfy constitutional requirements even though it proscribed only the use, in a criminal case, of compelled testimony and the use of any evidence directly or indirectly derived from that compelled testimony. Kastigar, supra 406 U.S. at 453, 92 S.Ct. at 1661. See Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 475-476, 92 S.Ct. 1670, 1673, 32 L.Ed.2d 234 (1972).

Thus, it is clear that the minimum required by the Federal Constitution is the so-called "use and derivative-use immunity." The phraseology of the Massachusetts Constitution, however, is different from that of the Fifth Amendment. The Fifth Amendment states, "No person ... shall be compelled in any criminal case to be a witness against himself ...." Article 12 sets forth, "No subject shall be ... compelled to accuse, or furnish evidence against himself."...