Com. v. Corsetti

• Decision Date: 30 July 1982
• Citation: 387 Mass. 1,438 N.E.2d 805
• Parties: , 8 Media L. Rep. 2113 COMMONWEALTH v. Paul CORSETTI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 805

438 N.E.2d 805

387 Mass. 1, 8 Media L. Rep. 2113

COMMONWEALTH v. Paul CORSETTI.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Jan. 4, 1982.

Decided July 30, 1982.

Thomas C. Troy, Boston (Robin Ultch, law student, with him), for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty. (Carmel A. J. Motherway, Asst. Dist. Atty., with him), for Commonwealth.

Gerald May, Sr., Boston, for The Hearst Corp., amicus curiae, submitted a brief.

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

NOLAN, Justice.

On March 11, 1981, Paul Corsetti, a reporter for the Boston Herald American newspaper, was called to testify at a hearing on pretrial motions to suppress evidence filed by Edward R. Kopacz, Jr. Kopacz was under indictment in Middlesex County for the murder of Curtis Dale Barbre. ¹ Prior to trial, Kopacz filed a motion to suppress statements allegedly made by him to two police officers and to Corsetti. ² Kopacz contended first that Corsetti was an agent of the police or the Commonwealth and, therefore, Miranda warnings should have been given before any statement was taken from him. He also argued that any statements made by him were not voluntarily tendered.

Corsetti was originally called to testify at a hearing on the defendant's motion to suppress on March 6, 1981. At that time he refused, based on his claim of a reporter's privilege, to state whether he was the author of a newspaper article carrying his by-line and implicating Kopacz in the murder. The court ruled that Corsetti had no such privilege, summarily adjudicated him in contempt, and gave him until March 11, 1981, to be heard on disposition.

On March 11, Corsetti acknowledged his authorship of the article and answered several other questions. The contempt order of March 6 was dismissed. When asked, however, to relate the substance of the telephone call upon which he based his article, Corsetti again refused to answer. ³ Corsetti based his refusal on assertions of a reporter's privilege grounded on the First Amendment to the United States Constitution, art. 16 ⁴ of the Declaration of Rights of the Massachusetts Constitution, set forth in full in the margin, and the common law. ⁵ The judge again rejected Corsetti's claim of privilege and summarily adjudicated him in contempt of court pursuant to Mass.R.Crim.P. 43, 378 Mass. 919 (1979). Corsetti was sentenced to the house of correction for three months which sentence was stayed for forty-eight hours.

Corsetti petitioned a single justice of the Appeals Court for further stay of execution pending appellate review of the contempt order. The single justice granted the stay. The Commonwealth appealed the stay to a single justice of this court, who denied relief to the Commonwealth. The Commonwealth's application for direct appellate review was allowed.

We hold that Corsetti could avail himself of no privilege, that he was guilty of contempt under Rule 43 and that the judge gave him sufficient notice and a full and fair opportunity "to adduce evidence or argument relevant to guilt or punishment." Mass.R.Crim.P. 43(b).

Constitutional claims. This court recently stated that "we do not believe that the First Amendment creates at the level of constitutional doctrine an exception to the 'longstanding principle that "the public ... has a right to every man's evidence".' " In the Matter of Roche, 381 Mass. 624, --- Mass.Adv.Sh. (1980) 2203, 2211, 411 N.E.2d 466 (1980), quoting from Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), and from United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed.2d 884 (1950). "[A] [S]tate can neither add to nor subtract from the mandates of the United States Constitution." Commonwealth v. Cote, 386 Mass. 354, 361, 435 N.E.2d 1047 (1982), quoting from North Carolina v. Butler, 441 U.S. 369, 376, 99 S.Ct. 1755, 1759, 60 L.Ed.2d 286 (1979). Corsetti's First Amendment argument thus fails. See also In the Matter of Pappas, 358 Mass. 604, 612, 266 N.E.2d 297 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Dow Jones & Co. v. Superior Court, 364 Mass. 317, 320, 303 N.E.2d 847 (1973). Further, in this case, for the reasons set forth in considering the common law claim we see no reason to construe our State Constitution in this respect more broadly than the Supreme Court has construed the First Amendment.

Common law claim. While certain Justices of this court have noted their willingness to consider the recognition of a common law reporter's privilege, In the Matter of Roche, 381 Mass. 624, ---, Mass.Adv.Sh. (1980) 2203, 2218, 411 N.E.2d 466 (1980), the publication of the newspaper article in this case negates any such privilege here. ⁶ Testimonial privileges are exceptions to the general duty imposed on all people to testify. In the Matter of Roche, 381 Mass. 624, ---, Mass.Adv.Sh. (1980) 2203, 2211, 411 N.E.2d 466 (1980). United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed.2d 884 (1950). 8 J. Wigmore, Evidence § 2192 (McNaughton rev. ed. 1961). All such privileges necessarily diminish the quantum of evidence that is before the court. P.J. Liacos, Massachusetts Evidence 174 (5th ed. 1981). Thus, privileges are generally strictly confined. Foster v. Hall, 12 Pick. 89, 97 (1831) ("[The] rule of privilege, having a tendency to prevent the full disclosure of the truth, ought to be construed strictly").

In assessing whether a common law reporter's privilege should be found in favor of Corsetti in this case, so as to bar a finding of contempt, it is important to note precisely what Corsetti claims and what he cannot claim. He has written a newspaper article, bearing his by-line, disclosing information and its source. He is not, therefore, asserting a privilege to protect the undisclosed source of information set forth in the newspaper article. Nor does he claim that the judge ordered him to disclose information not appearing in the newspaper article, information as to which he might have made a promise of confidentiality. He claims rather that we should recognize a common law right not to force him to break his promise to Kopacz not to disclose information in a criminal prosecution of Kopacz, although the source (Kopacz) and the content of Kopacz's statements have already been made public.

Corsetti's claim thus is that, balancing the public interest in the use of his testimony against his claim that compulsory disclosure will impede the free flow of information, we should come down on the side of the reporter. The issue is whether such a promise should give rise to a privilege. Corsetti argues that if such a promise does not create a privilege, people such as Kopacz will not be willing to talk freely with reporters. We are aware of no case or statute that has acknowledged a privilege in a reporter, by agreement with his disclosed source, to regulate the use of information made public. Where the source is disclosed and the testimony sought from the reporter concerns information already made public, the State's interest in the use of that information overrides the reporter's claim that the use of that information should be restricted. This is not a case where the Commonwealth has used a reporter to obtain an indictment or to do its investigative work. We see no justification in permitting a person, such as Kopacz, to determine to make information public in his name and yet impose a condition on the use of that information. A reporter has no common law privilege to be used in this manner.

Summary contempt. Shortly after Corsetti refused to answer the question put to him, he was summarily adjudged in contempt of court pursuant to Mass.R.Crim.P. 43, 378 Mass. 919 (1979). ⁷ Corsetti claims that a summary proceeding was improper because such punishment was not "necessary to maintain order in the courtroom." ⁸ Mass.R.Crim.P. 43(a), 378 Mass. 919 (1979). We do not agree.

We observe first that "[s]ummary punishment always, and rightly, is regarded with disfavor." Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952). In fact, because the due process guaranties of notice and hearing are fundamental to our system of justice, see, e.g., Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972), "many of the due process safeguards available in criminal proceedings should apply to a contempt proceeding." Sussman v. Commonwealth , 374 Mass. 692, 696, 374 N.E.2d 1195 (1978). See Garabedian v. Commonwealth, 336 Mass. 119, 124-125, 142 N.E.2d 777 (1957). One such safeguard is the rule that a criminal statute must be strictly construed. See J. R. Nolan, Criminal Law § 7 (1976). Likewise, this rule providing for summary judgment of criminal contempt must be given a narrow construction. See Widger v. United States, 244 F.2d 103, 107 (5th Cir. 1957).

However, in this case, Corsetti was not taken by surprise. Approximately one year prior to this, on March 24, 1980, Corsetti was held in contempt by a Superior Court judge for his refusal to answer certain questions put to him before a grand jury that was investigating the Barbre murder for which Kopacz was eventually indicted. His claim then, as now, was a reporter's privilege. On appeal, a single justice of this court transferred the case to the full court. The case was dismissed as moot on October 15, 1980, because the term of the grand jury which had summoned Corsetti had expired. Corsetti v. Commonwealth, 381 Mass. 778, 411 N.E.2d 466 (1980). He was given a full and fair hearing in the present case. Argument of Corsetti's counsel covers approximately six pages of transcript.

The first requirement that must be in place to allow a summary contempt judgment is that "such summary punishment is necessary to maintain order in the courtroom." ⁹ Mass.R.Crim.P. 43(a). See Furtado v. Furtado, 380 Mass. 277, --- n.3, Mass.Adv.Sh. (1980) 703, 706 n.3, ...