Gendron v. Burnham

• Decision Date: 16 July 1951
• Citation: 146 Me. 387,82 A.2d 773
• Parties: , 38 A.L.R.2d 210 GENDRON v. BURNHAM, Keeper of Cumberland County Jail.
• Court: Maine Supreme Court

Page 773

82 A.2d 773

146 Me. 387, 38 A.L.R.2d 210

GENDRON v. BURNHAM, Keeper of Cumberland County Jail.

Supreme Judicial Court of Maine.

July 16, 1951.

Wilfred A. Hay, Portland, Gendron, Fenderson & McDougal, Sanford, for petitioner.

Alexander A. LaFleur, Atty. Gen., William H. Niehoff, Asst. Atty. Gen., Daniel C. McDonald, County Atty., Portland, for respondent.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On report. Writ of habeas corpus certified to Chief Justice for immediate decision by the Justices upon findings of fact by a Justice of the Superior Court and by agreement of the parties in accord with the procedure employed in Welch v. Sheriff, 95 Me. 451, 50 A. 88 and Wade v. Warden, 145 Me. 120, 73 A.2d 128.

The prisoner, in obedience to a subpoena, appeared and was sworn as a witness before the grand jury in session at the May Term of the Superior Court for the County of Cumberland on the 18th day of May, 1951. The record discloses twenty-five questions which were asked him while before the grand jury. Of these questions he answered eight and declined to answer seventeen. Of the seventeen questions which he declined to answer, to nine of them he specifically asserted his privilege against self incrimination as the basis therefor. The grand jury thereafterwards reported the questions and answers to the court by an affidavit signed and sworn to by their foreman, in which affidavit the grand jury prayed that the prisoner should be ordered to appear before the Superior Court to show cause why he should not be adjudged in contempt of court for refusing to make answer to said questions. To this complaint the prisoner, the then respondent, filed an answer in writing, under oath, in which, after setting forth his own recollection of the questions and answers, he stated:----

'2. That the respondent at all times has been, and is now, ready and willing to answer such questions as will not tend to incriminate him, that in so doing he has at all times, and is now, ready and willing to accept the judgment of this Honorable Court as to what questions he should answer and as to what questions he may properly and rightfully claim his privilege against self-incrimination;

'3. That in every instance in which, in his examination before and by the Grand Jury, the respondent has declined to answer a question, he has declined in the honest belief that the answer might tend to incriminate him; that in all such instances he felt, in his personal judgment, that the answer would be substantially dangerous to him from the standpoint of self-incrimination; that in so exercising his judgment he acted in good faith and to the best of his ability; that the danger of self-incrimination in answering such questions as he declined to answer, he, the respondent, felt was proximate and real and not imaginary, fanciful or remote '4. That the respondent has at all times had, and now has, every desire to cooperate with this Honorable Court and with the Grand Jury, and to answer any and all questions which this Honorable Court or the Grand Jury may propound to him, subject only to his constitutional right to decline to answer on the ground of self-incrimination, and, further, that in the exercise of this right he has at all times, and is now, ready and willing to abide by the decision of this Honorable Court as to whether or not, in any case or as to any question or questions, he may have the right to decline to answer on the ground that the answer or answers may tend to incriminate him.'

At the hearing before the single Justice on the contempt charge, the prisoner took the position that it was an adversary proceeding and that the State must make out its case. Whereupon, the following proceedings were had:----

'The Court: I have here an affidavit signed by the foreman of the grand jury, setting out questions and answers given by this respondent, sworn to by Mr. Murphy. On the strength of that I will rule the State has made out a prima facie case, at least. You may give your defense and I will be glad to hear it.

'Mr. Gendron: We will except to that, if the Court please, and will offer an answer in writing under oath.

'The Court: Do you wish to put on any evidence?

'Mr. Gendron: If the Court will take our answer and consider the facts in the answer as proven--in such case----

'The Court: I will not accept it.'

Thereafterwards, the prisoner, then the respondent, was duly sworn, examined, and cross-examined. With respect to each and every question which he had declined to answer he testified under oath that he had declined to answer on the ground that he might incriminate himself, although he admitted that he may not have announced to the grand jury the ground of his declination except as to nine questions as shown in the affidavit. The prisoner further stated with respect to all questions which he refused to answer that when he was before the grand jury he believed in good faith that answers to the questions might tend to incriminate him.

In the hearing before the Justice in the contempt proceeding, the position of the prisoner was stated as follows by his counsel:----

'Mr. Gendron: Very well, Your Honor. So as to make sure that our position is clear, if the Court please, on the record, we want to make an offer of proof in this connection. We want to offer to prove with respect to the question of incrimination, in connection with the question which this witness refused or declined to answer before the grand jury, that the answer to that question would tend to incriminate the witness, would tend to give the State evidence implicating him in a criminal activity; our position being, of course, that this witness before the grand jury--and I assume that is the position of the Court--has the privilege of refusing to answer questions if the answer to any question, or the question concerning which he claims his privilege might incriminate him.

'The Court: Do you think it is for him to decide?

'Mr. Gendron: I think, if the Court please, before the grand jury there is no other person to decide that question. The witness must decide the question before the grand jury for himself.

'The Court: That decision is binding and final?

'Mr. Gendron: It is not binding and final, if the Court please. I think the next step, if the grand jury believes that the refusal to testify is unreasonable, the next step is for the grand jury to bring the witness before the Court to decide upon the subject matter as laid before the Court by the grand jury and explanations given by the witness, whether or not there is a real danger that the testimony might incriminate the witness. I think it is--I think then at that point if the Judge----

'The Court: Is this an argument of---- 'Mr. Gendron: No. You have asked us to state our position. I think it is quite fundamental, if the Court please. I think then if the Court decides that the witness should answer the questions, the Court directs the witness to answer the questions. If the witness states before the Court, before going back to the grand jury, he will not answer in any event the Court can perhaps punish right on the spot because there is a second contempt there, but if the witness simply goes back before the grand jury and if he answers the questions when he returns before the grand jury he is not, as we respectfully submit, not guilty of contempt. If he refuses to answer the question after being directed by the Court to answer, he is guilty of contempt. It is our position and I think we have made it clear in our answer. The answer has been presented and received by the Court?

'The Court: And read by the Court.'

After a lengthy examination and cross-examination of the prisoner, the contempt hearing was closed as follows:----

'Mr. Niehoff (Assistant Attorney General):--I want to ask some more questions.

'Q. I ask you now, Mr. Gendron, did you have any other business dealings with Louis Pooler than selling him merchandise?

'A. I decline to answer on the ground it might incriminate me.

'Mr. Niehoff: I now take the position this man has waived his privilege to claiming self-incrimination because he has stated--he is a witness--and his counsel has stated for the record that he is associated with these fellows in conspiracy and now he is offering himself as a witness and has now opened the door and cannot claim self-incrimination, and I ask he be instructed to answer the question.

'Mr. Gendron: The prosecutor knows very well it is not for the attorney to waive or claim the privilege of the witness. I think it is well established law. Furthermore this is not a grand jury investigation. This is a hearing in contempt. We have an issue here----

'The Court: I think, Brother Niehoff, we will stop here. He admits being asked the questions and giving the answers which appear in this affidavit. In my opinion, it is sufficient to hold him in contempt, and I do that.

'Mr. Gendron: We take exceptions.

'The Court: All right. I sentence him, as I did some others, to six months in jail.'

A mittimus was issued and the prisoner was committed to the Cumberland County Jail on the 25th day of May, 1951, in execution of the foregoing sentence.

On the 9th day of June, 1951, the present writ of habeas corpus was issued and the respondent herein sought to justify his imprisonment of the prisoner under the mittimus or warrant of commitment issued in the contempt proceeding. Hearing was had on the writ of habeas corpus before the Superior Court. The presiding Justice, in addition to the facts hereinbefore stated, made the following specific findings of fact:----

'No writ of attachment, rule to show cause, citation, order of notice, or other process was issued by the Court upon the Affidavit of the foreman of the Grand Jury, Petitioner's Exhibit 1 (Cf. copy of docket entries in evidence herein as Petitioner's Exhibit 4), and no process of any kind was served...