Grand Jury Proceedings No. 93,164, In re

• Court: Michigan Supreme Court
• Writing for the Court: T. M. KAVANAGH; BRENNAN, C. J., and KELLY, ADAMS, and T. G. KAVANAGH, JJ., concurred with T. M. KAVANAGH; BLACK; DETHMERS, J., concurred with BLACK
• Citation: Grand Jury Proceedings No. 93,164, In re, 179 N.W.2d 383, 384 Mich. 24 (Mich. 1970)
• Decision Date: 22 September 1970
• Docket Number: No. 10,10
• Parties: In the Matter of GRAND JURY PROCEEDINGS NO. 93,164. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Moses JOSEPH, Defendant-Appellant.

Page 383

179 N.W.2d 383

384 Mich. 24

In the Matter of GRAND JURY PROCEEDINGS NO. 93,164 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Moses JOSEPH, Defendant-Appellant.

No. 10.

Supreme Court of Michigan.

Sept. 22, 1970.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Asst. Atty. Gen., Lansing, Mich., for plaintiff-appellee.

Ivan E. Barris, Detroit, Mich., for defendant and appellant.

Before the Entire Bench.

T. M. KAVANAGH, Justice.

Defendant appeared before a one-man grand jury, convened by the Wayne County Circuit Court, and, after being sworn, refused to answer the following questions:

(1) Are you familiar with East Jefferson avenue in the city of Detroit, or by that I mean the location of East Jefferson avenue in the city of Detroit?

(2) Have you ever given any money, gift or gratuity or any other thing of value directly or indirectly or through any other person or persons to any candidate for a public or political office in the city of Detroit or the county of Wayne?

(3) Have you ever made a political contribution to any candidate for public office in the State of Michigan?

(4) Are you married or single?

To defendant's asserted privilege '(not) to be a witness against myself,' the grand juror ruled the questions were not incriminating and directed defendant to answer. Immunity from prosecution was not offered or granted to defendant pursuant to M.C.L.A. § 767.6 (Stat.Ann.1954 Rev. § 28.946).

Upon defendant's continued refusal to answer, a 4-count bench warrant issued charging defendant with contempt for each question which he refused to answer. He was arraigned before another judge of Wayne Circuit Court, stood mute, and moved to dismiss and quash the grand jury warrant on the grounds that: Count I was in fact self-incriminating; Count II was merged with Count III and, therefore, was not properly brought against defendant; Count III was in fact incriminatory; and Count IV was outside the scope of the grand jury investigation and provided no legal basis for prosecution. By supplemental motion to dismiss, defendant alleged that Recorder's Court and not the Wayne County Circuit Court was the proper court to hear the criminal charge, pursuant to M.C.L.A. § 726.11 (Stat.Ann.1962 Rev. § 27.3561).

Defendant waived trial by jury and a record was made by stipulation consisting of the order creating the grand jury, defendant's testimony before the grand jury, and newspaper clippings relating to defendant's background. On April 26, 1967-after termination of the grand jury--defendant was found guilty of criminal contempt and fined $250 on each count.

Defendant appealed and his conviction was affirmed by the Court of Appeals (McGregor, J., with Fitzgerald, J., concurring; J. H. Gillis, P. J., dissenting). 14 Mich.App. 494, 165 N.W.2d 633. Application for rehearing was denied by the same decretal division. Application for leave to appeal to this Court was timely filed and granted. 382 Mich. 760.

The issues presented by this appeal are:

(1) Whether defendant, not having been granted immunity, properly invoked his privilege against self-incrimination to the propounded questions?

(2) Whether the judgment of criminal contempt subsequent to the termination of the grand jury deprived defendant of a statutory right to purge himself? (M.C.L.A. § 767.5 (Stat.Ann.1954 Rev. § 28.945)).

(3) Whether venue was improperly laid in Wayne Circuit Court?

There are several situations by which a witness may find himself charged with contempt of a grand jury. The only kind we are concerned with in this case is that of a witness appearing before a judicial inquiry and refusing to answer certain questions put to him.

The constitutional standard against compulsory self-incrimination made binding upon the States in Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (see, also, In re Colacasides (1967), 379 Mich. 69, 84, 150 N.W.2d 1) as it relates to the grand jury--contempt situation was recited in the landmark case of Hoffman v. United States (1951), 341 U.S. 479, at pp. 486, 487, 71 S.Ct. 814, at p. 818, 95 L.Ed. 1118:

'The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal 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, 61 L.Ed. 1198) (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing the 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).'

See, also, In re Cohen (1940), 295 Mich. 748, 295 N.W. 481; People v. Hoffa (1947) 318 Mich. 656, 29 N.W.2d 292; In re Vickers' Petition (1963), 371 Mich. 114, 123 N.W.2d 253.

Our determination, therefore, must turn upon whether, from reading the record as a whole, defendant was justified in reasonably apprehending danger from a direct answer or whether he mistakenly apprehended the hazard of incrimination.

The second and third questions asked by the grand juror manifestly sought to elicit answers admitting at least a transfer of 'money, gift, or gratuity * * * (or) political contribution.' The inculpatory ramifications of an answer to these questions is not subject to dispute when understood in the context of the ordered purpose of the grand jury. ¹ An affirmative answer to either question propounded by the grand juror would have provided an essential element of the offense of bribery. See People v. Ritholz (1960), 359 Mich. 539, 552, 103 N.W.2d 481. See, also, 3 Gillespie, Criminal Law & Procedure, ch. 50.

Although the People candidly recognize this point, they argue that these questions were innocuous because they 'were not in the context of a specific payment of money to a specific individual.' This wholly ignores what was lucidly stated by the United States Supreme Court in Blau v. United States (1950), 340 U.S. 159, at p. 161, 71 S.Ct. 223, at p. 224, 95 L.Ed. 170:

'Whether such admissions by themselves would support a conviction under a criminal statute is immaterial. Answers to the questions asked by the grand jury would have furnished a link in the chain of evidence needed in a prosecution of petitioner for violation of (or conspiracy to violate) the Smith Act. Prior decisions of this Court have clearly established that under such circumstances, the Constitution gives a witness the privilege of remaining silent. The attempt by the courts below to compel petitioner to testify runs counter to the Fifth Amendment as it has been interpreted from the beginning. United States v. Burr, 25 Fed.Cas. (p. 38), Case No. 14,692e, decided by Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia; Counselman v. Hitchcock, 142 U.S. 547 (12 S.Ct. 195, 35 L.Ed. 1110); Ballmann v. Fagin, 200 U.S. 186 (26 S.Ct. 212, 50 L.Ed. 433); Arndstein v. McCarthy, 254 U.S. 71 (41 S.Ct. 26, 65 L.Ed. 138); Boyd v. United States, 116 U.S. 616 (6 S.Ct. 524, 29 L.Ed. 746); cf. United States v. White, 322 U.S. 694, 698, 699, (64 S.Ct. 1248, 88 L.Ed. 1542).'

We hold that defendant properly invoked his constitutional privilege against self-incrimination as to questions 2 and 3. We further hold that judicial sanction for the assertion of his constitutional right in the form of contempt proceedings was invalid and reverse the judgments of conviction on counts II and III.

On the other hand, a review of the record discloses that questions 1 and 4 were not of the type which could logically, though mediately, link defendant by his answer to a definite element of the involved offenses. In no sense was the chase getting too hot or the scent too fresh. United States v. Weisman (C.A. 2, 1940), 111 F.2d 260.

While the safeguards against self-incrimination are vigilantly and vigorously protected, they do not sanction every chimerical danger viewed by defendant as a link in the chain of evidence. As stated by our Court in In re Schnitzer (1940), 295 Mich. 736, 740, 295 N.W. 478, 480:

'The tendency to incriminate must be a reasonable one; an answer may not be withheld because it might possibly under some conceivable circumstances form part of a crime.'

We conclude as to questions 1 and 4, that despite their questionable relevancy, defendant should have responded to the questions. His adamant but unjustified assertion of silence properly subjected him to the court's exercise of its power to punish contumacious conduct.

It is next argued by defendant that the imposition of a sentence after the termination of the grand jury was unlawful as depriving...