Com. v. Martin

• Decision Date: 12 August 1996
• Citation: 668 N.E.2d 825,423 Mass. 496
• Parties: COMMONWEALTH v. Luman MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 825

668 N.E.2d 825

423 Mass. 496

COMMONWEALTH v. Luman MARTIN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 9, 1996.

Decided Aug. 12, 1996.

Stephen Neyman, Westford, for Wayne Thompson.

Paul B. Linn, Assistant District Attorney, for Commonwealth.

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

GREANEY, Justice.

A judge in the Superior Court reported two questions to the Appeals Court pursuant to Mass.R.Crim.[423 Mass. 497] P. 34, 378 Mass. 905 (1979). The first question asks whether one of the alleged victims in the defendant's case could properly invoke his privilege against self-incrimination, based on the Fifth Amendment to the United States Constitution or Art. 12 of the Declaration of Rights to the Massachusetts Constitution, by simply asserting, through counsel, that his testimony at trial might differ materially from his prior grand jury testimony, thus creating the risk of prosecution on a charge of perjury. Also at issue is whether, by testifying before the grand jury, the witness waived his right to invoke the privilege, and therefore could not lawfully refuse to testify at the defendant's trial. The second question asks whether the judge could properly conduct an in camera or voir dire hearing of the alleged victim to determine whether the claim of privilege was being properly invoked. We transferred the case to this court on our own motion. We conclude that the alleged victim has not waived his right to claim the privilege. We further conclude that a judge is not bound in all cases to accept a witness's assertion of the privilege, and that a judge, in appropriate circumstances, may conduct a limited in camera examination of a reluctant witness to ascertain whether the privilege has been properly invoked.

The background pertinent to the reported questions is as follows. The defendant, Luman Martin, has been indicted on charges of armed assault with intent to murder, in violation of G.L. c. 265, § 18 (1994 ed.); unlawful possession of a firearm, in violation of G.L. c. 269, § 10(a ) (1994 ed.); assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A (1994 ed.); and assault by means of a dangerous weapon, in violation of G.L. c. 265, § 15B (1994 ed.). The sole witness to testify before the grand jury was Wayne Thompson, the primary target of the alleged assault. Thompson was compelled to testify before the grand jury by means of a capias issued after he had failed to respond to a grand jury summons. He was not advised of his privilege against self-incrimination prior to testifying nor did he consult with an attorney prior to his grand jury appearance.

The substance of Thomas's testimony was that on January 27, 1994, at approximately 7:30 P.M., he was standing outside of the building at 279 Centre Street in the Jamaica Plain section of Boston. The defendant came out of 279 Centre Street holding a small caliber handgun, approached Thompson, put the gun to Thompson's head and told Thompson to "brace [him]self." At that point, Robert Irby, the uncle of Thompson's girl friend, also came out of 279 Centre Street, saw what was happening, and intervened. Irby and the defendant struggled. The defendant wrenched himself free, hit Irby on the side of the head with the gun, fired two shots at him from close range, and ran away with two companions, whom Thompson identified by name. Thompson knew the defendant "[f]rom growing up in the projects," and, as of the date of the assault, had known him for about three years. ¹ Irby has been unable to identify the defendant as his assailant.

In a motion to dismiss filed before trial, the defendant asserted that several months after Thompson had testified before the grand jury, Thompson told the defendant's investigator that the perpetrator of the assault had been masked, a point that had not been part of Thompson's grand jury testimony. The trial judge denied the motion to dismiss on the ground that there was no evidence that the prosecution had been aware of this information before the grand jury proceedings.

Thompson failed to appear on the first scheduled trial date. On the day the case was rescheduled for trial, Thompson told the prosecutor that he wanted to speak with a lawyer about his impending testimony. The judge appointed counsel, who, after consulting with Thompson, informed the judge that Thompson wished to invoke his privilege against self-incrimination under the Federal and State Constitutions. Counsel informed the judge that he was "convinced" that "Thompson's invocation of the privilege was proper, because his trial testimony would ... subject him to perjury charges arising from his grand jury testimony."

The Commonwealth asked the judge to order Thompson to testify. In his written order denying this request, the judge stated that despite his "strong suspicion that [Thompson was] improperly invoking his [self-incrimination] privilege to avoid testifying for ulterior motives," it was not "perfectly clear" that Thompson's trial testimony would not incriminate him. The judge stated that, although he wanted to conduct an in camera "colloquy [to] help [him] determine the validity of the claim of privilege," he had found no authority permitting such an inquiry, and "[he was] reluctant to order it in the absence of authority."

Thereafter, at the Commonwealth's request and pursuant to Mass.R.Crim.P. 34, the judge reported these two questions:

(1) "Can a reluctant witness invoke his privilege against self-incrimination and thereby avoid testifying at trial simply by asserting that his trial testimony would differ from his grand jury testimony and thus might subject him to perjury charges?"

(2) "What steps, such as an in camera or voir dire examination of the witness, may the judge properly take in an effort to make an informed determination of whether the witness has improperly invoked the privilege based on anticipatory perjury rather than past perjury?"

1. As an initial matter, counsel for Thompson argues that the report is improper because the questions reported are not, in the words of rule 34, "so important or doubtful" as to require an appellate opinion prior to trial. Interlocutory review by way of report is proper when serious questions are involved which are likely to be material to the ultimate outcome of a criminal proceeding and when it appears that subsequent trial court proceedings will be substantially facilitated by an appellate resolution. See Commonwealth v. Colon-Cruz, 393 Mass. 150, 155, 470 N.E.2d 116 (1984). A report in this instance is proper. Implicit in the judge's first reported question is the issue whether someone who has testified before a grand jury has thereby waived his right to invoke his privilege against self-incrimination if he is called as a witness at a subsequent trial on indictments issued by that grand jury. The waiver issue, which has been left somewhat unclear by our decisions, has been raised repeatedly and may have a significant impact on the rights of witnesses and defendants as well as the Commonwealth's ability to prosecute. The question of in camera examination has not been discussed in an appellate opinion in this State. We conclude that the report raises questions which have an impact on the effective administration of the criminal justice system. Answers to these questions also will have an impact on the outcome of this case: it would appear that the Commonwealth may not be able to proceed on these indictments, which charge serious crimes, without Thompson's testimony. Our answers to the reported questions may have an effect on the availability of Thompson's testimony.

2. The first reported question logically breaks down into two parts. The first aspect of the question is whether, as argued by the Commonwealth, Thompson can be found to have waived the right to claim his privilege against self-incrimination at trial based on his testimony before the grand jury. Assuming a negative answer on this point, the second part of the question asks whether the simple assertion by Thompson that his trial testimony will differ from his grand jury testimony is sufficient to support the conclusion that the privilege is being invoked properly.

a. A witness who voluntarily testifies regarding an incriminating fact waives his privilege against self-incrimination "as to subsequent questions seeking related facts." Taylor v. Commonwealth, 369 Mass. 183, 189, 338 N.E.2d 823 (1975). This is so because, once a witness has freely provided testimony tending to incriminate himself, "continued testimony as to details would no longer tend to incriminate" him. Id. at 190, 338 N.E.2d 823. "A contrary rule [would allow] the testimony to remain in a witness-selected posture [which] would result in serious, unjust distortion." Id. This principle has been referred to as the "waiver by testimony" rule.

In the Taylor case, we adopted the majority position that the waiver by testimony rule applies only "to the proceeding in which [the testimony] is given and does not extend to subsequent proceedings." Id. at 191, 338 N.E.2d 823. In two subsequent cases, Commonwealth v. Borans, 388 Mass. 453, 446 N.E.2d 703 (1983), and Palaza v. Superior Court, 393 Mass. 1001, 1002, 469 N.E.2d 60 (1984), it was established clearly that grand jury proceedings leading to the indictment of a defendant, and that defendant's subsequent trial, are separate proceedings for the purposes of the waiver by testimony rule and that a witness (like Thompson) cannot be deemed to have waived the right to claim his privilege against self-incrimination for all purposes by testifying before the grand jury. ² In the Palaza decision, we took pains to foreclose reliance on dicta in Matter of DeSaulnier (No. 2), 360 Mass. 761, 766, 276 N.E.2d 278 (1971), which stated, somewhat expansively, that a "witness's privilege [against self-incrimination] is to be deemed waived ... where the proceeding...