Com. v. Winer
| Decision Date | 02 May 1980 |
| Citation | 404 N.E.2d 654,380 Mass. 934 |
| Parties | COMMONWEALTH v. Howard A. WINER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph J. Balliro, Boston (Kenneth M. Goldberg, Boston, with him), for defendant.
Ellen L. Janos, Asst. Atty. Gen. (Steven Rusconi, Asst. Atty. Gen., with her), for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, and LIACOS, JJ.
RESCRIPT.
A special grand jury issued a subpoena duces tecum to the "Keeper of Records Oak Management Corporation (doing business as) Savoy Convalescent Home" to produce certain records of the nursing home including certain accountant's work papers. The defendant was also subpoenaed to appear before the grand jury. He appeared individually and as the keeper of the records on June 12, 1979, and produced all documents except the accountant's work papers claiming his Fifth Amendment privilege against self-incrimination. On July 12, 1979, a judge of the Superior Court ordered the defendant to produce the accountant's work papers. After the defendant again failed to produce the work papers, the Commonwealth filed a petition to hold the defendant in contempt. A hearing was held on the contempt petition before a judge of the Superior Court on September 13, 1979. On September 19, 1979, the judge found the defendant in contempt for failing to comply with the July 12, 1979, order. The judge ordered the defendant jailed until such time as he complied. The defendant filed various appeals and secured several stays, but was unable to secure a stay of the contempt order pending this appeal. On October 25, 1979, the defendant produced the work papers before the special grand jury, thereby purging the contempt. Shortly thereafter the special grand jury returned four larceny indictments and three perjury indictments against the defendant.
The defendant appealed from the July 12, 1979, order to produce and the September 19, 1979, contempt order. We transferred the appeal here on our own motion. We conclude that the orders are not appealable. In order to obtain review of an order directing the production of evidence before a grand jury, the party subpoenaed must move to quash, and, if unsuccessful, refuse to comply and suffer a conviction for contempt. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); In re Grand Jury Proceeding (Meadowbrook Hosp., Inc. v. United States), 528 F.2d 983 (5th Cir. 1976). Cf. In re Oberkoetter, 612 F.2d 15 (1st Cir. 1980), and Borman v. Borman, --- Mass. ---, --- - --- a, 393 N.E.2d 847 (1979). Additionally, where there has been such an adjudication of civil contempt, if the party complies with the order to produce,...
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Special Investigation No. 244, In re
...Cobbledick include: United States v. Harrod, 428 A.2d 30 (D.C.1981); State v. Grover, 387 A.2d 21 (Me.1978); Commonwealth v. Winer, 380 Mass. 934, 404 N.E.2d 654 (1980); and In Re: Petition of Arlen Spector, 455 Pa. 518, 519-20, 317 A.2d 286 Appellants counter with the rule laid down in New......
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Roche, Matter of
...to Mass.R.A.P. 1(c), 365 Mass. 844 (1974). See Commonwealth v. Winer, --- Mass. ---, --- - --- (Mass.Adv.Sh. (1980) 1109, 1109-1110), 404 N.E.2d 654 (1980); Katz v. Commonwealth, --- Mass. ---, --- (Mass.Adv.Sh. (1979) 2581, 2586), 399 N.E.2d 1055 (1979). This result is consistent with anal......
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Special Investigation No. 249, In re
...v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); State v. Grover, 387 A.2d 21 (Me.1978); Commonwealth v. Winer, 380 Mass. 934, 404 N.E.2d 654 (1980); Petition of Specter, 455 Pa. 518, 317 A.2d 286 (1974); State v. Threet, 294 Or. 1, 653 P.2d 960 (1982). Of primary concern ......
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Rhode Island Grand Jury Subpoena, Matter of
...A contempt order would then issue, from which the accountant could appeal. Id. at 492-493, 583 N.E.2d 241. See Commonwealth v. Winer, 380 Mass. 934, 935, 404 N.E.2d 654 (1980), and cases cited. As to the accountant's corporate client, we held that it had no standing to intervene. The client......