Com. v. Raczkowski

• Decision Date: 08 March 1985
• Citation: 19 Mass.App.Ct. 991,475 N.E.2d 417
• Parties: COMMONWEALTH v. Arthur RACZKOWSKI.
• Court: Appeals Court of Massachusetts

Page 417

475 N.E.2d 417

19 Mass.App.Ct. 991

COMMONWEALTH v. Arthur RACZKOWSKI.

Appeals Court of Massachusetts,

Plymouth.

Argued Feb. 15, 1985.

Decided March 8, 1985.

Thomas Arthur Hensley, Brockton, for defendant.

Mary Ellen O'Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, KASS and FINE, JJ.

RESCRIPT.

On October 22, 1984, Arthur Raczkowski was called to testify before a Plymouth County Grand Jury which was conducting an investigation into the theft of cocaine from the Brockton police station earlier that year. After identifying himself and answering other preliminary questions, Raczkowski refused to answer further questions, asserting the privilege against self-incrimination afforded by the Fifth Amendment to the United States Constitution and by art. 12 of the Declaration of Rights of the Massachusetts Constitution. The Plymouth district attorney then applied for witness immunity for Raczkowski under G.L. c. 233, § 20E, which was granted by a single justice of the Supreme Judicial Court on November 8, 1984. Raczkowski's appeal of that grant is presently pending before the Supreme Judicial Court. On January 7, 1985, he was called before a second grand jury (the term of the first had expired), and he again refused to testify about the theft. He was brought before a Superior Court judge the following day, and was ordered to testify. Raczkowski refused. The judge found him in contempt under G.L. c. 233, § 20H, and sentenced him to imprisonment until he testified, but for not longer than three months. Raczkowski appeals from the contempt order.

1. Raczkowski argues that he was entitled to a jury trial on the contempt charge, even though G.L. c. 233, § 20H, provides no such right. Since he could terminate his imprisonment by testifying, the sentence was coercive, not punitive. It therefore constituted civil, not criminal, contempt. Shillitani v. United States, 384 U.S. 364, 365, 368-370, 86 S.Ct. 1531, 1533, 1534-1535, 16 L.Ed.2d 622 (1966). Cf. Sodones v. Sodones, 366 Mass. 121, 129-130, 314 N.E.2d 906 (1974); Labor Relations Commn. v. Fall River Educators' Assn., 382 Mass. 465, 475-476, 416 N.E.2d 1340 (1981). Whereas a constitutional right to a jury trial attaches to certain criminal contempts, Bloom v. Illinois, 391 U.S. 194, 201-210, 88 S.Ct. 1477, 1481-1486, 20 L.Ed.2d 522 (1968); Taylor v. Hayes, 418 U.S. 488, 495-496, 94 S.Ct. 2697, 2701-2702, 41 L.Ed.2d 897 (1974); Matter of DeSaulnier (No. 3), 360 Mass. 769, 773-777, 279 N.E.2d 287 (1971), no right to a jury trial attaches to civil contempts. Shillitani v. United States, 384 U.S. at 370-371, 86 S.Ct. at 1535-1536. Matter of DeSaulnier (No. 3), 360 Mass. at 773. United States v. Handler, 476 F.2d 709, 714 (2d Cir.1973). See also Sodones v. Sodones, 366 Mass. at 123, 130-131, 314 N.E.2d 906, where the court upheld, as against due process claims, a civil contempt order for imprisonment imposed by a judge without a jury trial. Cf. Labor Relations Commission v. Fall River Educators' Assoc., 382 Mass. at 474-476, 416 N.E.2d 1340.

2. Raczkowski next argues that his grant of immunity under G.L. c. 233, § 20E, applied only with regard to the grand jury at which he refused to testify on October 22, 1984, and did not extend to the second grand jury, at which he refused to testify on January 7, 1985. His immunity, he contends, expired upon the dismissal of the first grand jury; thus, he cannot be held in contempt for refusing to testify before the second grand jury, because his constitutional privilege against self-incrimination remained in existence. Neither G.L. c. 233, § 20E, nor G.L. c. 233, § 20G, imposes any such limitation on the grant of immunity. The single justice's grant of immunity in this case did not contain such a limitation. In Commonwealth v. Donahue, 369 Mass. 943, 344 N.E.2d 886, cert. denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97 (1976), a similar situation arose in which an immunized witness testified before a second grand jury, and the court held "that there was full compliance with the statutory procedure, and that immunity was properly granted before both the grand jury and the trial jury." Id., 369 Mass. at 948, 344 N.E.2d 886. Compare, on the facts, Smith v. Commonwealth, 386 Mass. 345, 346-347, 436 N.E.2d 377 (1982). The Supreme Court has also indicated that a grant of immunity, and the resultant duty to testify, would extend to successive grand juries. Shillitani v. United States, 384 U.S. at 371 n. 8, 86 S.Ct. at 1536 n. 8.

Raczkowski relies on Corsetti v. Commonwealth, 381 Mass. 778, 411 N.E.2d 466 (198...