Com. v. Borans

• Decision Date: 14 March 1983
• Citation: 388 Mass. 453,446 N.E.2d 703
• Parties: COMMONWEALTH v. David P. BORANS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 703

446 N.E.2d 703

388 Mass. 453

COMMONWEALTH v. David P. BORANS.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 4, 1982.

Decided March 14, 1983.

James L. Sultan, Boston (Harvey A. Silverglate, Boston and Victor J. Garo, Medford, with him), for defendant.

Carole Ann Fagan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

After his convictions were affirmed, see Commonwealth v. Borans, 379 Mass. 117, 393 N.E.2d 911 (1979), ¹ David Borans was subpoenaed by the Commonwealth to testify in the related trial of one William Reinstein. Borans refused to answer questions at Reinstein's trial, asserting the constitutional privilege against self-incrimination. See U.S. Const. amend. V; art. 12 of the Massachusetts Declaration of Rights. The judge ruled that Borans had waived that privilege, and adjudged Borans guilty of criminal contempt under the summary procedures of Mass.R.Crim.P. 43, 378 Mass. 919 (1979). ² The defendant appealed. We transferred the case on our own motion. We reverse.

We summarize the facts. William Reinstein took office as mayor of the city of Revere in 1972, and appointed David Borans as the city's purchasing agent shortly thereafter. In 1976, a Suffolk County grand jury was convened to investigate an alleged kickback scheme involving the construction of Revere High School during Reinstein's tenure in office. Borans voluntarily testified before the grand jury, denying knowledge of any kickback scheme. The grand jury indicted Reinstein and Borans on counts arising from the kickback scheme, and indicted Borans for perjury before the grand jury. After trial by jury, Borans was convicted on ten indictments. See note 1 supra.

After Borans' trial, the Commonwealth moved for a trial of Reinstein. Reinstein's first and second trials ended in mistrials. A third began in November, 1981. At that time, the prosecution served a summons on Borans to appear as a witness. Borans filed a motion to dismiss the summons, based on his privilege against self-incrimination, which was denied.

Pursuant to a subpoena, Borans appeared on February 1, 1982, as a prosecution witness before the judge in the Reinstein trial. Borans was questioned in the absence of the jury. After stating his name and address, Borans refused to answer any further questions concerning events during his tenure as purchasing agent. ³ Although the judge ordered him to answer, Borans refused. The judge found him in contempt. The next day, the judge sentenced Borans to sixty days' imprisonment for criminal contempt, finding that Borans had waived his Fifth Amendment privilege. ⁴

Borans claims that he validly asserted the Fifth Amendment privilege against self-incrimination, and that his testimony before the grand jury and at his own trial does not constitute a waiver of that privilege. We agree. ⁵

A person's right to be free from self-incrimination is a fundamental principle of our system of justice, secured by the Fifth Amendment to the United States Constitution and by art. 12 of the Massachusetts Declaration of Rights. Accordingly, the privilege is to be construed liberally in favor of the claimant. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). In re Brogna 589 F.2d 24, 27 (1st Cir.1978). See Commonwealth v. Funches, 379 Mass. 283, 289, 397 N.E.2d 1097 (1979).

We apply Federal standards to determine whether a claim of privilege is justified. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Commonwealth v. Francis, 375 Mass. 211, 215, 375 N.E.2d 1221, cert. denied, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 (1978). Murphy v. Commonwealth, 354 Mass. 81, 84, 235 N.E.2d 552 (1968). Under those standards, 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." Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951), quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881), cited with approval in Counselman v. Hitchcock, 142 U.S. 547, 579-580, 12 S.Ct. 195, 204, 35 L.Ed. 1110 (1892). Commonwealth v. Funches, 379 Mass. 283, 289, 397 N.E.2d 1097 (1979). 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." Hoffman v. United States, supra 341 U.S. at 486, 71 S.Ct. at 818. Commonwealth v. Francis, supra. Employing these principles, we conclude that Borans has a proper basis upon which to invoke the protection of the Fifth Amendment. ⁶

At his trial, Borans was convicted of perjury in his grand jury testimony. The prosecution wanted him to testify at Reinstein's trial as to the same topics covered by his previous testimony. ⁷ Borans suggests that the Commonwealth was again attempting to place him "in a dilemma: either give [self-]incriminating testimony [subjecting him to prosecution for perjury at his own trial] or perjure himself" by incriminating Reinstein. Commonwealth v. Borans, 379 Mass. 117, 138, 393 N.E.2d 911 (1979). ⁸

Borans responded to this dilemma by using the other "option available to him: the assertion of his constitutional privilege against self-incrimination." Id. "[A] witness may not claim the privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured himself in testifying on the same subject at a prior proceeding." United States v. Partin, 552 F.2d 621, 632 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See United States v. Fortin, 685 F.2d 1297, 1298 (11th Cir.1982); United States v. Housand, 550 F.2d 818, 823 (2d Cir.), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977). "The witness [Borans], consequently, may have had reasonable cause to apprehend danger from a direct answer," id., to questions at Reinstein's trial.

The Commonwealth claims that Borans has waived his privilege against self-incrimination by testifying before the grand jury and at his own trial. We disagree. "It is the majority rule that waiver by testimony is limited to the proceeding in which it is given and does not extend to subsequent proceedings. 8 J. Wigmore, [Evidence] § 2276 at 458 (1961, Supp.1975)." Taylor v. Commonwealth, 369 Mass. 183, 190-191, 338 N.E.2d 823 (1975). See United States v. Cain, 544 F.2d 1113, 1117 (1st Cir.1976); United States v. Johnson, 488 F.2d 1206, 1210 (1st Cir.1973); United States v. James, 609 F.2d 36, 45 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Miranti, 253 F.2d 135, 139 (2d Cir.1958); In re Neff, 206 F.2d 149, 152 (3d Cir.1953) (the rule "is settled by the overwhelming weight of authority"); United States v. Goodman, 289 F.2d 256, 259 (4th Cir.), vacated and remanded on other grounds, 368 U.S. 14, 82 S.Ct. 127, 7 L.Ed.2d 75 (1961); United States v. Wilcox, 450 F.2d 1131, 1141-1142 (5th Cir.1971), cert. denied, 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 787 (1972); United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980) ("voluntary testimony before a grand jury does not waive the privilege against self-incrimination at trial"); In the Matter of Beery, 680 F.2d 705, 720 n. 17 (10th Cir.), cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 604 (1982); United States v. Fortin, 685 F.2d 1297, 1298-1299 (11th Cir.1982); Annot., 42 A.L.R. Fed. 793 (1979). ⁹ See generally Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983).

We believe that any waiver of Borans' privilege at the grand jury proceedings or at his trial does not extend to his testimony as a witness at the Reinstein trial. ¹⁰ Although the Borans trial and the Reinstein trial originated from the same grand jury investigation, the two trials cannot be considered as the same "proceeding." The fact that the trials originated with the same grand jury is simply not enough to defeat a claim of privilege. These are different proceedings because each has a different defendant. ¹¹ Thus, we conclude that Borans did not waive his right to Fifth Amendment protection by voluntarily testifying before the grand jury or by taking the stand in his own defense at his trial.

The Commonwealth also asserts that, in any event, we should deny Fifth Amendment protection to Borans because he is effectively immunized from further prosecution by his prior convictions. ¹² However, "a witness does not lose his Fifth Amendment right to refuse to testify concerning other matters or transactions not included in his conviction." United States v. Pardo, 636 F.2d 535, 544 (D.C.Cir.1980). ¹³ See supra at 705. "Furthermore, neither a practical unlikelihood of prosecution nor the prosecutor's denial of an intention to prosecute negates an otherwise proper invocation of the Fifth Amendment." Turner v. Fair, 476 F.Supp. 874, 880 (D.Mass.1979), vacated and remanded on other grounds, 617 F.2d 7 (1st Cir.1980).

In light of all these considerations, we conclude that Borans properly could invoke Fifth Amendment protection. Accordingly, we reverse the judgment of contempt against Borans. ¹⁴

Judgment reversed.

Finding set aside.

Judgment for the defendant.

1 "Borans was convicted on ten indictments alleging a conflict of interest under G.L. c. 268A, § 2(b ) (six indictments) larceny, accessory after the fact to a felony, perjury and subornation of perjury.

"The judge sentenced Borans to concurrent terms of from six to nine years' imprisonment for the crimes of perjury and subornation of perjury. The judge also sentenced Borans to terms of...