Eastham v. Arndt

Decision Date02 March 1981
Docket NumberNo. 7381-8-I,7381-8-I
Citation28 Wn.App. 524,624 P.2d 1159
PartiesRichard M. EASTHAM, Respondent, v. Ferdnand M. ARNDT and Jane Doe Arndt, his wife, Appellants.
CourtWashington Court of Appeals

Henry & Sorrels, James N. Fischer, Seattle, for appellants.

Flynn, Adelstein & Sharpe, Phillip Sharpe, Bellingham, for respondent.

CALLOW, Chief Judge.

The appellant, Ferdnand M. Arndt, appeals an order adjudging him guilty of contempt of court entered for his refusal, on Fifth Amendment grounds, to obey a trial court order to answer certain questions asked him in proceedings supplemental to a judgment. Three issues are presented: (1) whether the immunity granted in RCW 6.32.200 is adequate to justify the compulsion of a person's testimony over his claim of Fifth Amendment privilege against self-incrimination; (2) whether the appellant has made a sufficient showing that his answer to questions might tend to incriminate him so as to enable the appellant to invoke the privilege against compulsory self-incrimination; and (3) whether the trial court's imposition of terms upon the appellant was permissible.

In December 1978, Richard Eastham commenced supplemental proceedings against the appellant pursuant to RCW ch. 6.32 seeking to satisfy a judgment which Eastham recovered against the appellant in 1973. RCW 6.32.010 provided that "(a)t any time within six years after entry of a judgment for the sum of twenty-five dollars or over upon application by the judgment creditor, such court or judge may, by an order, require the judgment debtor to appear ... to answer concerning the same." The answer of a party or witness examined in a supplemental proceeding must be under oath. RCW 6.32.050. Such a party or witness is granted the following protection:

A party or witness examined in a special proceeding authorized by this chapter is not excused from answering a question on the ground that his examination will tend to convict him of a commission of a fraud, or to prove that he has been a party to or privy to or knowing of a conveyance, assignment, transfer or other disposition of property for any purpose; or that he or another person claims to be entitled as against the judgment creditor or receiver appointed or to be appointed in the special proceeding to hold property derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor or to a person in his behalf. But an answer cannot be used as evidence against the person so answering in a criminal action or criminal proceeding.

RCW 6.32.200.

In the course of supplemental proceedings, the appellant refused to answer questions regarding his assets, claiming a Fifth Amendment privilege against self-incrimination. The court held an in camera hearing to permit the appellant to disclose "the reasons why he felt there was some risk in answering questions as to his property which could subject him to criminal prosecution." Following in camera testimony by the appellant, the court ruled that the appellant "failed to satisfy the (c)ourt that answers to questions concerning his assets and liabilities might tend to incriminate him." The court noted the existence of RCW 6.32.200 but made no ruling as to its effect. The appellant was directed to answer questions by the judgment creditor concerning his assets and liabilities. The appellant, asserting a privilege against self-incrimination, declined to answer the questions propounded, including questions regarding assets, liabilities, income or expenses. 1 He was found in contempt and ordered "committed to the Whatcom County Jail until such time as he consents to answer questions propounded to him concerning his assets and liabilities when so directed by the court." The order was stayed pending this appeal.

The first issue is whether the grant of immunity in RCW 6.32.200 is adequate to justify the compulsion of the appellant's testimony over his claim of Fifth Amendment privilege against self-incrimination.

The Fifth Amendment declares that no person "shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination includes the right of a witness not to give incriminatory answers in any proceeding civil or criminal, administrative or judicial, investigatory or adjudicatory. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The Fifth Amendment privilege against self-incrimination is applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

The adequacy of a state grant of immunity is to be tested against the scope of protection afforded by the privilege. If a state grant of immunity is coextensive with the scope of the Fifth Amendment privilege, that is, the grant of immunity has removed the dangers against which the privilege protects, incriminatory testimony may be compelled and a witness' refusal to answer based on the privilege is unjustified. If however, a state grant of immunity is not as comprehensive as the protection afforded by the privilege, incriminatory testimony cannot be compelled and a witness may invoke the privilege and refuse to answer. Kastigar v. United States, supra; Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); State v. Carroll, 83 Wash.2d 109, 515 P.2d 1299 (1973); Annot., 32 L.Ed.2d 869 (1973); 81 Am.Jur.2d Witnesses §§ 58-61 (1976). The invocation of the privilege in these circumstances is dependent upon the witness showing to the satisfaction of the trial court that an answer would dangerously expose the witness to incrimination. As stated in Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951):

The privilege afforded not only extends to answers that would in themselves support a conviction under a ... criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a ... crime. (Patricia) Blau v. United States, 340 U.S. 159 (71 S.Ct. 223, 95 L.Ed. 170) (1950). But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U.S. 362, 365 (37 S.Ct. 621, 622, 61 L.Ed. 1198) (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 (71 S.Ct. 438, 95 L.Ed. 344) (1951), and to require him to answer if "it clearly appears to the court that he is mistaken." Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." See Taft, J., in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio 1896).

Two types of statutory immunity are adequate substitutes for a person's right to refuse to testify against oneself:

Generally speaking, two forms of statutory grants of immunity have been upheld as constitutionally sufficient in scope to square with the scope of the Fifth Amendment privilege against self-incrimination. These forms have been characterized as furnishing "transactional immunity," i. e., immunity from criminal prosecution for any transaction, matter or thing about which a witness is compelled to testify, and "use and derivative use immunity," i. e., immunity from the use of the compelled testimony or any evidence derived therefrom in a subsequent criminal prosecution of the witness. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008 (1956); Kastigar v. United States, (406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)).

State v. Carroll, supra, 83 Wash.2d at 112, 515 P.2d 1299. The statutory grant of "use immunity," i. e., immunity from the use of the compelled testimony in any criminal prosecution, is not coextensive necessarily with the privilege and permits a witness to invoke the Fifth Amendment privilege notwithstanding the immunity statute on a proper showing. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Annot., 32 L.Ed.2d 869 (1973). The statutory grant of "use immunity" is not as comprehensive as the protection afforded by the Fifth Amendment privilege since it does not preclude the derivative use of the fruits of the compelled testimony as investigatory leads which might supply other means of incriminating the witness.

In Counselman v. Hitchcock, supra, a statutory grant of immunity provided that "no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him ... in any court of the United States, in any criminal proceeding ..." It was held that such a grant of immunity was not coextensive with the Fifth Amendment privilege and that while the statute protected the witness against the use of his testimony against him in court, it would not "prevent the use of his testimony to search out other testimony to be used in evidence...

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