Com. v. Hughes

• Decision Date: 05 May 1980
• Citation: 404 N.E.2d 1239,380 Mass. 583
• Parties: COMMONWEALTH v. Edward H. HUGHES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1239

404 N.E.2d 1239

380 Mass. 583

COMMONWEALTH v. Edward H. HUGHES.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Feb. 5, 1980.

Decided May 5, 1980.

Leonard H. Cohen, Pittsfield (David O. Burbank, Pittsfield, with him), for defendant.

Daniel A. Ford, Asst. Dist. Atty. (Anthony J. Ruberto, Jr., Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN and LIACOS, JJ.

KAPLAN, Justice.

A Berkshire County grand jury on October 4, 1978, indicted the defendant Edward H. Hughes on two counts of assault by means of a dangerous weapon, to wit, a pistol (G.L. c. 265, § 15B). The charges arose from an incident in Otis, Massachusetts, on June 21, 1978, when the defendant allegedly assaulted John Joyner and Leonard Terranova by firing two rounds through the front windshield of a truck in which the men were sitting. ¹ Inspection of a recovered bullet suggested that it came from either a .38 caliber or .357 magnum handgun. On June 22, 1978, the Otis chief of police asked the defendant whether he owned either kind of gun and, if so, whether he would surrender it voluntarily for examination. The defendant produced a .357 magnum pistol. Tests showed it had not been recently fired. The defendant refused consent to a search of his car, which was impounded at the time, for any additional weapon. However, the police on June 22 obtained a warrant for search of the car for "(e)ither a 38 calibre or 357 Magnum pistol and spent shells from either." Police executed the warrant that day and made the return: "Nothing pertaining to warrant found."

The defendant pleaded not guilty on October 10, 1978, and was released on personal recognizance. Customary defense motions followed. On March 28, 1979, the Commonwealth filed a "Motion to Order Defendant to Produce Weapon" for ballistics examination. The weapon was described in the motion as a "Smith and Wesson .38 Caliber Revolver Serial Number J354354." An accompanying affidavit stated that the defendant had registered the revolver with the firearms identification division of the Department of Public Safety. This was apparently under G.L. c. 140, § 128B; and we note that pursuant to § 129C such a registrant must report to the division any sale, gift, or other transfer of possession of the weapon; failure to do so is criminally punishable (G.L. c. 269, § 10(h )). The motion was allowed after hearing: the defendant was ordered to produce the described revolver within ten days; the Commonwealth was ordered to give the defendant a copy of any ballistics test results within ten days of receiving them; and "(a)ny question concerning the admissibility of evidence emanating from the allowance of this motion is deferred to the trial justice, if appropriately raised."

The defendant attempted to secure immediate review of the order by applying to a single justice of this court to exercise our supervisory power, G.L. c. 211, §§ 3 and 4A, claiming that the judge's order, if enforced, would violate his constitutional privilege against self-incrimination. ² The single justice denied the application on July 6, 1979, observing that regular review could be had on an appeal from an adjudication of contempt for failure to comply with the order, or, if the indictments went to trial, then on appeal from a judgment of conviction, with error claimed in the trial judge's refusal to exclude the gun "and all evidence derived from the production thereof."

On July 27, 1979, the Commonwealth demanded by registered letter that the defendant turn over the gun within twenty-four hours or face contempt charges. On the defendant's failure to reply, the Commonwealth on August 21, 1979, instituted proceedings for contempt which were brought to hearing on August 30. A representative of the firearms identification division testified that on March 23, 1976 (twenty-seven months before the alleged assault) the defendant had registered the gun described, and had not since then filed any report of transfer of the gun. In his findings, ruling, and order of August 30, 1979, the judge found that the defendant had purchased the revolver on March 23, 1976, and had not filed any further report. The defendant was held in contempt but given until 3 P.M. that day to produce the weapon or show present inability to do so, otherwise he would be incarcerated until purgation or further order of the court. Sentence being stayed by the judge, the parties applied jointly for direct appellate review, which we allowed. We reverse.

1. The Fourth Amendment question. The defendant's contention, as expressed in the court below and in the joint application to this court, rested on the Fifth Amendment. But he now ventures to say in a footnote in his brief that the order "may . . . have . . . violated" his right under the Fourth Amendment ³ to be free of unreasonable searches and seizures, for it sought, he suggests, "to probe the Defendant's mind " which is "per se unreasonable." (Defendant's emphasis.) There are no supporting citations. We deal with the Fourth Amendment only to indicate that it may be put to one side in the present case.

A person may complain of a search warrant, and thus of the seizure of material obtained by the search, on the ground that the warrant was issued without probable cause or was indefinite, obscure, or overly broad in its description of the things to be taken or the place to be searched. A warrant defective in any such respect would lead to a search or seizure unreasonable in the sense of entailing an undue invasion of personal privacy by government agents. This is the familiar terrain of the Fourth Amendment. Of course, if objections of this order fail, material may be brought in and used that may be, and usually is, of an incriminating character, but the person involved has not been required to assist in the production.

In the present case of a motion addressed to a person to produce a physical object (similar to a subpoena duces tecum) the objection is not that there is lack of cause for seeking the production i. e., that the investigatory effort is legal or that the object sought is irrelevant to the inquiry or is insufficiently described. ⁴ Rather the objection is, precisely, that the defendant's assistance is demanded assistance in a testimonial sense. That is what the defendant means by "mind probe." He is required under the order himself to produce the gun and thereby, he argues, make a series of important avowals with an incriminating tendency (discussed particularly in our point 2 below), or to explain his inability to comply. So the grievance, if there is one, fits under the Fifth Amendment, not the Fourth.

There are situations of subtle interaction between the Fourth and Fifth Amendments, for example, where the very object sought is a "speaking" object, say a statement, voluntarily written, which tends by its internal content to incriminate the writer, who is the person ordered to produce the writing. See generally Couch v. United States, 409 U.S. 322, 338-339, 93 S.Ct. 611, 620-621, 34 L.Ed.2d 548 (1973) (Douglas, J., dissenting); Note, Papers, Privacy and the Fourth and Fifth Amendments: A Constitutional Analysis, 69 Nw.U.L.Rev. 626 (1974). A consideration of the exact bearing of the two Amendments on such problems would involve us in an analysis of difficult authority from Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), through Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). ⁵ We are confronted with no such problem here.

2. Fifth Amendment analysis. So the defendant must justify what would otherwise be contumacy by reference to his privilege not to be "compelled . . . to be a witness against himself" (or the counterpart State constitutional provision). But in the present case we do not have the prototypical compelled oral testimony. Under compulsion of the order the defendant could produce the weapon without uttering a word.

In one sense the distinction between the two forms of production a statement in audible prose and an implicit statement appears to be of no consequence because the protection of the privilege extends to "an accused's communications, whatever form they might take." Schmerber v. California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). See United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); McCormick, Evidence § 126 at 268 n.73 (2d ed. 1972). In another sense the distinction may be crucial since "the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis in original). See United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967).

The upshot is that we have to say here whether the defendant's producing the revolver would have sufficient testimonial aspects to initiate Fifth Amendment consideration and whether in those aspects there can be found a tendency to incriminate him. "These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof." Fisher v. United States, supra, 425 U.S. at 410, 96 S.Ct. at 1581. But for guidance we look primarily to Schmerber and Fisher.

In Schmerber the Supreme Court upheld against constitutional attack the use as evidence, in a prosecution for drunken driving, of laboratory analysis of a blood sample taken from the defendant against his will. Although the submission to the physical act was involuntary, and the test results incriminating, there was, according the the Court, "(n)ot even a shadow of testimonial compulsion upon or enforced communication by the accused." 384 U.S. at 765, 86 S.Ct....