DeSaulnier, In re

• Decision Date: 29 November 1971
• Citation: 360 Mass. 761,276 N.E.2d 278
• Parties: In the Matter of Edward J. DeSAULNIER, Jr., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 278

276 N.E.2d 278

360 Mass. 761

In the Matter of Edward J. DeSAULNIER, Jr., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1971.

Monroe L. Inker, Newtonville, for Banker.

Edward B. Hanify and John M. Harrington, Jr., Boston, Special Counsel.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and BRAUCHER, JJ.

During the hearings by the Supreme Judicial Court in this matter one I. Charles Baker, when called as a witness, refused to answer certain questions, asserting his constitutional privilege against self-incrimination. On November 29, 1971, the court made the following findings, rulings, and order.

FINDINGS OF FACT.

The court makes the following findings.

1. The witness I. Charles Baker was interrogated by the State Police on August 5, 1971. He was interrogated on August 25, 1971, under oath by Chief Justice McLaughlin of the Superior Court pursuant to a letter from the Chief Justice to Baker, dated August 20, 1971, a copy of which is appended hereto (exhibit A). Baker's counsel was with him and consulted with him freely at each interrogation. He made an answer to each question. At no time during either interrogation did Baker claim any privilege or suggest that his answers might incriminate him. The questions and answers on each occasion were recorded stenographically and have been transcribed. Only the questions (with the exception of a few questions deleted by agreement of counsel) are before us.

2. The present proceeding on the two informations is in practical effect a continuation of the inquiry into the same charges and judicial conduct, as the inquiry initiated prior to August 25, 1971, by Chief Justice McLaughlin of which the interrogation of Baker on that day was a part.

3. The statute of limitations has run on every substantive criminal offence committed before January 1, 1965, which is suggested in any way by the evidence. There is no suggestion in the evidence or otherwise that Baker has committed any substantive offence (e.g. murder, treason, robbery while armed or by putting in fear) for which the statute of limitations (State or Federal) exceeds six years. See G.L. c. 277, § 63, as amended through St.1955, c. 781, § 1; c. 265, §§ 17 (as amended through St.1952, c. 406, § 1), 18, 19, and 21. See also 18 U.S.C. §§ 3281--3291 (1964); Int.Rev.Code of 1954, § 6531.

4. Indictments are pending in the Superior Court for Middlesex County charging Baker with larceny and conspiracy to commit larceny on a number of occasions, all allegedly taking place after January 1, 1968. No pending indictment against Banker charges any criminal act prior to January 1, 1968.

5. A stipulation filed on November 24, 1971, by the District Attorney for the Northern District, and joined in by or in behalf of the Attorney General, is appended (exhibit B). It was supplemented by agreement in open court on that day (Tr. 1197--1198) that 'larceny' should be included in the stipulation. We interpret this as inserting the words 'or larceny' after the word 'conspiracy' in both the first and second sentences of the stipulation.

6. With respect to conspiracies prior to January 1, 1965, and continuing thereafter, the stipulation of the District Attorney, joined in by or on behalf of the Attorney General, is applicable in accordance with its terms.

RULINGS OF LAW.

A. The passage of the time within which a criminal prosecution may be brought, under the applicable statute of limitations, precludes Baker from asserting the privilege against self-incrimination with respect to possibly criminal acts committed prior to November 29, 1965. Moore v. Backus, 78 F.2d 571, 577 (7th Cir.); United States v. Goodman, 289 F.2d 256, 262--263 (4th Cir.); McCormick, Evidence, § 135. Wigmore, Evidence (McNaughton rev.) § 2279(c). See Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 50 L.Ed. 652.

B. The burden of showing 'that the statutory period of limitation has expired' rests upon the party objecting to the invocation of the privilege. See the Goodman case, supra, 289 F.2d pp. 262--263. Special counsel have sustained that burden.

C. To the extent of any stipulation of immunity made by or in behalf of the Attorney General, or by a District Attorney with the approval of the Attorney General, and relied upon by Baker by giving testimony, applicable Massachusetts law requires this court to ensure that the public faith pledged to Baker is duly and fully kept and that the stipulation of immunity is enforced in good faith and fairly so as to constitute an effective grant of immunity in accordance with the terms of the stipulation. Commonwealth v. Benton, 356 Mass. 447, 252 N.E.2d 891.

D. From a careful consideration of all the circumstances of this inquiry, we are of opinion that it is clear that for Baker to answer questions put to him in direct or cross-examination with respect to events prior to January 1, 1965, will involve him in no risk of self-incrimination. See Malloy v. Hogan, 378 U.S. 1, 7--14, 84 S.Ct. 1489, 12 L.Ed.2d 653; Commonwealth v. Baker, 348 Mass. 60, 62--63, 201 N.E.2d 829 (somewhat restricting Sandrelli v. Commonwealth, 342 Mass. 129, 132--141, 172 N.E.2d 449); Murphy v. Commonwealth, 354 Mass. 81, 83--84, 235 N.E.2d 552. Cf. Gambale v. Commonwealth, 355 Mass. 394, 396--398, 245 N.E.2d 246.

E. Baker's answers to Chief Justice McLaughlin on August 25, 1971, and to the State Police on August 5, 1971, do not constitute a general waiver for all purposes of Baker's privilege against self-incrimination. Special counsel have argued that, to the extent of the subject matter of the answers in fact given, such answers constitute a limited waiver of the privilege by Baker. We discuss this contention below in paragraph H.

F. The circumstance that such answers were in fact made, by Baker on August 5 and August 25, 1971, in the presence of Baker's counsel, is evidence that Baker and his counsel then regarded such questions and answers as having no substantial tendency to incriminate Baker or to provide any link in a chain of facts likely to incriminate Baker, and that they had no such tendency.

G. Relevant answers already given by Baker on August 5 and 25, 1971, could be introduced against him as admissions in any criminal proceeding in which he may be a defendant.

H. Because of the rulings above in paragraphs A through D, inclusive, it is unnecessary to decide whether and to what extent the answers given by Baker, in the presence of his counsel, without claiming any constitutional privilege, in previous interrogations constitute a waiver of such privilege. Were it necessary for this court now to rule on his issue, we would be disinclined to follow somewhat 'mechanical' decisions elsewhere that waiver of the privilege against self-incrimination must occur in precisely the same proceeding in which the privilege is claimed. See e.g. Re Neff, 206 F.2d 149, 151--153 (3d Cir.); United States v. Miranti, 253 F.2d 135, 139--140 (2d Cir.). See also People v. Walker, 28 Ill.2d 585, 589--591, 192 N.E.2d 819; State v. DeCola, 33 N.J. 335, 345--349, 164 A.2d 729; Snyder Appeal, 398 Pa. 237, 244--246, 157 A.2d 207; Wigmore, Evidence (McNaughton rev.) §§ 2275--2276, esp. at pp. 470--472. Instead, we would be inclined to adopt as (1) in the public interest, (2) advancing the fair administration of justice, and (3) less likely unfairly to obstruct justice and 'sound law enforcement,' a somewhat limited form of the rule laid down in Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 800--803 to the extent stated below. See McCormick, Evidence, § 130. See also Rule 37(b) of the Uniform Rules of Evidence, 9A U.L.A. 621, which provides that the privilege is not available to a witness 'if the judge finds that he * * * while the holder of the privilege has * * * (b) without coercion and with knowledge of his privilege, made disclosure of any part of the matter or consented to such a disclosure made by any one.' See also American Law Institute's Model Code of Evidence, Rule 231, p. 169 (see Rule 204, p. 135) and comments at pp. 343--345. We would be inclined to adopt the principle...