Colacasides, In re, 5

• Decision Date: 19 April 1967
• Docket Number: No. 5,5
• Parties: In the Matter of Gus COLACASIDES.
• Court: Michigan Supreme Court

Page 1

150 N.W.2d 1

379 Mich. 69

In the Matter of Gus COLACASIDES.

No. 5.

Supreme Court of Michigan.

April 19, 1967.

Joseph W. Louisell and Ivan E. Barris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., by Robert C. Goussy, Asst. Atty. Gen., Lansing, for appellee.

Before the Entire Bench.

SOURIS and O'HARA, Justices.

This is an appeal on leave granted by this Court from the circuit court for Wayne county, by-passing the Court of Appeals pursuant to GCR 1963, 852.*

Appellant was found guilty of contempt, by the Honorable Charles Kaufman, a judge of the Wayne circuit court, for refusal to testify in a one-man grand jury proceeding presided over by the Honorable George E. Bowles, also a judge of the Wayne circuit court. Judge Kaufman sentenced appellant to six months' confinement in the Detroit house of correction, or until the expiration of the above designated grand jury, or until such time as he should purge himself of such contempt by answering the questions addressed to him in the grand jury proceeding. Upon his initial refusal to answer the questions, appellant was ordered so to do under a grant of immunity by the grand juror. The grant of immunity was from all subsequent prosecution for any offense concerning which any responsive answer to such questions may have tended to incriminate appellant.

Appellant challenges his conviction for contempt on multiple grounds. He contends that the one-man grand jury proceeding from which his contempt conviction resulted is an illegal extension of a prior one-man grand jury beyond the one-year period allowed such juries by statute and that his contempt conviction, therefore, is void. He also contends that the immunity granted him is not coextensive with his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution; that, furthermore, the State failed to demonstrate to him the nature and extent of the immunity granted; and that, therefore, his contempt conviction for refusing to answer the grand juror's questions violates his rights guaranteed him by the Fifth Amendment. Finally, he urges that his contempt conviction is void because it arose out of proceedings conducted under our one-man grand jury statute which he claims violates 'the doctrine of separation of powers', by which we presume he means that it violates Article III, § 2, Constitution of 1963 and, as well, that it violates the due process clause of the Fourteenth Amendment to the United States Constitution.

The questions put to him by the grand juror all relate to so-called 'little black books' seized in the appellant's restaurant-tavern. In it are entries purported to be in the handwriting of appellant and allegedly showing payments of money to Detroit police officers presumably as bribes to induce the officers to refrain from enforcing the law as to defendant.

We conclude that the Bowles grand jury is not an illegal extension of a preceding one-man grand jury; that the immunity granted appellant is as broad as is required by the Fifth Amendment's guarantee against self-incrimination; that the State performed its obligation of advising appellant of its grant of immunity to him; that the one-man grand jury statute does not violate either our State Constitution's separation of powers provision or the Fourteenth Amendment's due process clause; and that, therefore, the appellant's contempt conviction for refusal to answer the grand juror's questions must be affirmed.

I.

Appellant contends that Grand Juror Bowles exceeded the permissible scope of his inquiry when he put questions to appellant relating to the 'little black books' seized by a previous one-man grand jury presided over by the Honorable Edward S. Piggins, another of the judges of the Wayne circuit court, and that appellant's refusal to answer those questions, therefore, was not conduct punishable as contempt. His theory is that the statute, C.L.S.1961, § 767.4 (Stat.Ann.1954 Rev. § 28.944), imposes a 12-month time limit upon grand juror inquiry into the subject matter of any granted petition for such inquiry and that no subsequent grand juror thereafter can investigate the same subject matter. The pertinent portion of the cited statute, added by P.A.1951, No. 276, reads as follows:

'No inquiry or proceeding hereunder shall continue longer than 6 months unless extended by specific order of the said judge or his successor for an additional period not to exceed 6 months.'

The record before us discloses that while Grand Juror Piggins was conducting his inquiry certain documents came into his possession on the basis of which this appellant and another person were indicted for conspiracy to bribe a Detroit police officer. Judge Piggins served as grand juror for two successive six-month periods ending in August of 1966. Shortly before expiration of the Piggins grand jury, the judges of the Wayne circuit court granted a petition by the Attorney General for another Wayne county one-man grand jury inquiry and Judge Bowles thereafter, on September 8, 1966, was designated by his colleagues to conduct it. On January 6, 1967, upon Judge Bowles' petition, this Court ordered transferred to Judge Bowles certain of the records of the Piggins grand jury which had been filed with the Clerk of this Court pursuant to C.L.S.1961, § 767.6a (Stat.Ann.1954 Rev. § 28.946(1)). Our order of January 6, 1967 is set forth, in full, in the margin. ¹

Later in January, 1967, appellant was subpoenaed to appear before Grand Juror Bowles and was asked the questions for his refusal to answer which he was cited and subsequently convicted of contempt. The questions related to certain documents transferred by our order to the Bowles grand jury from those deposited with us by the Piggins grand jury. These documents were the evidentiary basis upon which appellant had been indicted by Grand Juror Piggins for conspiracy to bribe a police officer. Appellant has not yet been tried on this indictment.

We do not accept as correct appellant's construction of the above-quoted provision of the statute, that is to say, that no grand juror may investigate the subject matter of a prior one-man grand jury. The quoted language added to the statute by P.A.1951, No. 276, does not indicate intrinsically the Legislature's purpose, nor has our attention been directed to anything extrinsic of the statutory amendatory language from which we can discern that legislative purpose. We must determine the Legislature's meaning from the statutory language alone, therefore. While it may be conceded that the language is not literally inconsistent with the construction put upon it by appellant, that is not the only construction consistent with its terms, nor is it the construction we believe most consistent with the permissible objectives sought to be achieved by the one-man grand jury law.

We construe the above quoted statutory language to mean that no judicial officer designated to serve as a one-man grand juror to investigate specified allegations of crime may do so for more than two consecutive six-month periods. By this provision we believe the Legislature manifested its intent to limit the time within which a particular judge could exercise the extraordinary powers of a grand juror. That a grand juror's powers are extraordinary, for a judicial officer, will be considered subsequently in this opinion. That the Legislature was aware of the possible political consequences of such power is manifest in that part of C.L.1948, § 767.3, as amended, P.A.1965, No. 251 (Stat.Ann.1965 Cum.Supp. § 28.943) quoted in the margin. ² We perceive no rational legislative purpose in foreclosing one-man grand jury inquiry into any particular criminal activity beyond the period of one year, but we do perceive a rational purpose, manifested by the above-quoted provision from P.A.1951, No. 276, and that portion of C.L.1948, § 767.3, as amended, quoted in the margin, to limit to one year the exercise by any particular judge of the extraordinary powers of inquiry authorized by our one-man grand jury law. Thus construed, the time limitation of C.L.S.1961, § 767.4 is a time limitation upon the judicial officer performing duties as a one-man grand juror, and not a time limitation upon grand juror inquiry into a specific subject of criminal activity. So construed, the statute would not preclude a grand juror's investigation of the subject matter investigated by a prior grand juror, provided, of course, that the subject of inquiry is within the proper scope of inquiry of the second grand juror.

Because we construe the time limitation as affecting the grand juror, rather than the inquiry, another issue is presented: may one grand juror utilize the evidence produced by a predecessor grand juror? Pertinent to this issue are the so-called secrecy provisions of C.L.1948, § 767.3, as amended (Stat.Ann.1965 Cum.Supp. § 28.943), C.L.S.1961, § 767.4 (Stat.Ann.1954 Rev. § 28.944), and C.L.S.1961, § 767.6 (Stat.Ann.1954 Rev. § 28.946), the pertinent provisions of which are italicized in the margin. ³ We construe the statutory provisions italicized in the margin to permit access by one grand juror to the records of a prior grand juror upon order of this Court, but subject to the secrecy provisions of C.L.S.1961, § 767.4 which attach to all information or evidence coming to the attention of a grand juror's inquiry. We perceive no reason for requiring a grand juror to retrace the path of a predecessor grand juror, considering the availability of the desired evidence and the convenience of the witnesses.

On the foregoing basis, this Court entered its order of January 6, 1967. ⁴ On the basis of tangible evidence obtained initially by the Piggins grand jury, Grand Juror Bowles asked certain questions appellant refused to answer notwithstanding the immunity granted to him. We conclude that appellant's conviction for contempt for refusal to...