Com. v. Dormady

• Decision Date: 15 July 1996
• Citation: 423 Mass. 190,667 N.E.2d 832
• Parties: COMMONWEALTH v. Michael L. DORMADY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 832

667 N.E.2d 832

423 Mass. 190

COMMONWEALTH v. Michael L. DORMADY.

Supreme Judicial Court of Massachusetts Plymouth.

Argued March 7, 1996.

Decided July 15, 1996.

Gregory I. Massing, Assistant Attorney General, for the Commonwealth.

Max D. Stern (Adrian Sevier with him) Boston, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

On May 10, 1994, the defendant, Michael L. Dormady, was indicted by a grand jury for larceny by false pretenses. The incident giving rise to the indictment occurred while Dormady was a Duxbury police officer and resulted in his dismissal from that police department. Dormady moved to dismiss the indictment on the basis that during a prior internal police investigation of the transaction and a subsequent civil service adjudicatory hearing, Dormady had been compelled to answer questions regarding the incident, and did so after being promised transactional immunity under art. 12 of the Declaration of Rights of the Massachusetts Constitution. A judge in the Superior Court dismissed the indictment. The Commonwealth appealed. We granted the Commonwealth's application for direct appellate review. We affirm the dismissal.

Michael Dormady was employed as a Duxbury police officer from 1974 until his dismissal in January, 1994. In 1991, he signed a purchase and sale agreement to purchase real property in Duxbury which lacked direct access from town roads. On several occasions, apparently twice while in uniform, Dormady visited Hilda Grace, a woman in her late seventies who owned real estate adjacent to Dormady's lot. At Dormady's request, Grace signed a deed granting Dormady a right of way over her property. Dormady subsequently began to construct a road over the right of way, tearing down a building in the process. Grace's niece filed a complaint with the Duxbury police claiming that Grace never intended to grant the right of way, but rather that Dormady represented to Grace that the deed was a document authorizing Dormady to attempt to sell Grace's property on her behalf.

The Duxbury police department began an internal affairs investigation, during which Dormady received two letters demanding a written report in response to questions. The letters each stated that, "[f]ailure to comply with any part of this order could result in disciplinary action." Dormady provided a two-page written response to the inquiries. On June 29, 1992, police Chief Enrico Cappucci found the allegations against Dormady to be unfounded. More than a year later, on October 12, 1993, Chief Cappucci reopened the investigation due to new information. An internal affairs hearing was held on October 22, 1993. A subsequent public hearing before a town hearing officer to determine just cause for disciplinary action was held on November 29, and December 21, 1993. Dormady, represented by counsel, testified at both hearings. He was later dismissed.

Prior to the commencement of the internal affairs hearing, the following colloquy took place between Dormady's attorney and Chief Cappucci:

COUNSEL FOR DORMADY: "My client and I will comply obviously but ... as you know under that Springfield case [Carney v. Springfield, 403 Mass. 604 (1988) ] as he is asked any questions, he has a right to be assured, cause there is no criminal intent to turn this into a criminal investigation whatsoever and it is strictly an administrative proceeding. You know I just want those assurances obviously now.... And again if thee [sic ] is any intent here to establish you know, I don't know how it would be done (inaudible) any criminal investigation, I would want it understood on the record that he would have this appropriate immunity."

CHIEF CAPPUCCI: "I understand."

Officer Allen Gilbert was also called as a witness at the internal affairs hearing. Prior to being questioned, Gilbert's attorney requested assurances from counsel for the town of Duxbury:

COUNSEL FOR GILBERT: "Under the Springfield case, if he's asked to and ordered to be answering questions, he's pretty much [guaranteed] immunity from criminal prosecution ... right there."

TOWN COUNSEL: "Right."

COUNSEL FOR GILBERT: "So we have your verbal assurances and your understanding (inaudible) that immunity as well."

CHIEF CAPPUCCI: "That's correct."

During the public hearing concerning disciplinary action against Dormady, Dormady's attorney sought to prevent Chief Cappucci from calling Dormady as a witness. The following colloquy ensued:

TOWN COUNSEL: "I think that Officer Dormady is entitled to assurances under the Carney case that any testimony that he might have is not going to be used as a basis for criminal prosecution, and if and when he receives those assurances from the police department, then at that time I believe it is a civil case and he can be called by either side to testify.... I don't think you can deny the police chief the right that he has in this hearing to call and ask the questions that he might have. And I think that's what we're dealing with, but I think those Carney assurances should be put on the record first anyway."

COUNSEL FOR CHIEF CAPPUCCI: "We have no objection to that, and I assume you're referring to what would be in the nature of use immunity as to just the use of whatever testimony he gives at this proceeding...."

COUNSEL FOR DORMADY: "Well in terms of Carney, I would suggest that both--not only Carney but any other cases regarding any kinds of immunity, whether transactional or use, whatever the current law is, is that he be provided with all the assurances provided by the current law."

The Commonwealth argues that the Superior Court judge erred in dismissing the indictment against Dormady because (1) Dormady failed adequately to assert his art. 12 privilege against being compelled to furnish evidence against himself, (2) the police chief and town counsel lacked authority to grant Dormady transactional immunity for his testimony, and (3) Dormady should receive "use" and "derivative use" immunity only, which would not require dismissal of the indictment. We disagree.

A public employer has the power to compel the testimony of a public employee regarding that employee's ability directly to perform required governmental tasks or the employee's general fitness for public service. Broderick v. Police Comm'r of Boston, 368 Mass. 33, 38, 330 N.E.2d 199 (1975), cert. denied sub nom. Broderick v. DiGrazia, 423 U.S. 1048, 96 S.Ct. 773, 46 L.Ed.2d 636 (1976). Accord Patch v. Mayor of Revere, 397 Mass. 454, 455, 492 N.E.2d 77 (1986). Such testimony, however, cannot be compelled under threat of discharge absent a grant of immunity, and a public employee cannot be discharged for refusing to waive that immunity to which he or she is entitled. Gardner v. Broderick, 392 U.S. 273, 279, 88 S.Ct. 1913, 1916-17, 20 L.Ed.2d 1082 (1967). Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Broderick v. Police Comm'r of Boston, supra at 38, 330 N.E.2d 199. See Commonwealth v. Harvey, 397 Mass. 351, 356-357, 491 N.E.2d 607 (1986) (no threat of discharge); Silverio v. Municipal Court of the City of Boston, 355 Mass. 623, 630, 247 N.E.2d 379 cert. denied, 396 U.S. 878, 90 S.Ct. 151, 24 L.Ed.2d 135 (1969) (no claim of privilege against self incrimination). The Fifth Amendment to the United States Constitution requires that statements compelled under threat of job loss or other disciplinary sanction be suppressed in a criminal proceeding coextensively with the right against compelled self-incrimination. This has been interpreted by Federal courts to amount to "use" and "derivative use" immunity. ¹ Garrity v. New Jersey, supra. See Baker v. Lawrence, 379 Mass. 322, 330-331, 409 N.E.2d 710 (1979). We have construed art. 12 more broadly, however, to provide public employees in such situations with transactional immunity. ² Carney v. Springfield, 403 Mass. 604, 610, 532 N.E.2d 631 (1988). See Attorney Gen. v. Colleton, 387 Mass. 790, 797-801, 444 N.E.2d 915 (1982) (transactional immunity required to compel private citizen to answer civil investigative inquiries); Cabot v. Corcoran, 332 Mass. 44, 51-52, 123 N.E.2d 221 (1954) (transactional immunity sufficient to compel testimony before special commission on organized crime); Emery's Case, 107 Mass. 172, 185 (1871) (art. 12 transactional immunity applies in legislative hearings).

The judge's findings that Dormady's testimony was compelled, and that he sufficiently asserted his privilege against compelled self-incrimination embodied in art. 12 were not clearly erroneous and will be upheld. See Kendall v. Selvaggio, 413 Mass. 619, 625, 602 N.E.2d 206 (1992). Dormady was summoned to respond to inquiries under threat of disciplinary action, and it is that threat of punishment which compelled his testimony. A June 25, 1992, memorandum to Dormady stated, "[y]ou are currently being investigated.... You are hereby ordered to submit a report directly to me.... This entire to/from is to be considered a direct written order. Failure to comply with any part of this order could result in disciplinary action." Correspondence following the reopening of the investigation ordered Dormady to report to Chief Cappucci's office at a specified date and time to answer questions and further instructed that "[s]hould you wish to have an attorney present you may. However, you are being ordered to report here and answer questions whether you have an attorney present or not." Prior to Dormady's testimony at both hearings, his counsel requested assurances of proper immunity under our decision of Carney v. Springfield, supra.

No particular words are required to raise the privilege under art. 12. See Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964 (1955); Commonwealth v. Koonce, 418 Mass. 367, 378, 636 N.E.2d 1305 (1994), and cases cited (art. 12 protection to be construed liberally and judge's finding that testimony was involuntary...