In re Grand Jury Subpoena

• Decision Date: 22 June 2006
• Citation: 849 N.E.2d 797,447 Mass. 88
• Parties: In The Matter of a GRAND JURY SUBPOENA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

849 N.E.2d 797

447 Mass. 88

In The Matter of a GRAND JURY SUBPOENA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 2, 2006.

Decided June 22, 2006.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Laurence Cote, Boston, for the respondent.

Present: MARSHALL, C.J., GREANEY, IRELAND, COWIN, SOSMAN, & CORDY, JJ.

SOSMAN, J.

In the present appeal, we are called on to decide whether the spousal privilege set forth in G.L. c. 233, § 20, Second, applies to a witness summonsed to appear before a grand jury. For the following reasons, we conclude that the privilege does not apply in grand jury proceedings.

1. Background. A Suffolk County grand jury was investigating a homicide that occurred on February 10, 2006. The prime suspect was arrested and ordered held without bail at his arraignment in the Dorchester Division of the District Court Department. Thereafter, the defendant's wife was summonsed to appear before the grand jury; she ultimately appeared with counsel and moved to quash the subpoena. The sole ground asserted in the motion to quash was that the grand jury's investigation was a "criminal proceeding against" the witness's husband and that she was therefore entitled to invoke the spousal privilege not to testify. G.L. c. 233, § 20, Second. A judge in the Superior Court allowed the motion to quash, whereupon the Commonwealth petitioned for relief from a single justice of this court pursuant to G.L. c. 211, § 3.¹ The single justice denied the Commonwealth's petition "for the reasons stated in the [witness's] opposition," and the Commonwealth appealed.

2. Discussion. a. Mootness. Subsequent to oral argument on the present appeal, the grand jury indicted the witness's spouse without the witness's testimony, rendering moot the resolution of the witness's motion to quash. However, the matter has been fully briefed and argued; the issue of privilege is one of importance; trial judges have reached differing conclusions on whether the spousal privilege applies before the grand jury (see Commonwealth v. Economou, Worcester Superior Court No. 97-0197, 10 Mass.L.Rptr. 29, 1999 WL 253117 [Mar. 15, 1999]); and the issue is likely to recur during other grand jury proceedings, where, as here, the grand jury may proceed with an indictment (or return a no bill) before the question of witness privilege can be resolved by way of a G.L. c. 211, § 3, petition. We therefore exercise our discretion to decide the present appeal. See Matter of a Grand Jury Investigation, 443 Mass. 20, 21, 819 N.E.2d 171 (2004) (proceeding to decide claim of privilege under G.L. c. 233, § 20, Fourth, in response to grand jury subpoena, despite fact that intervening indictments had rendered subpoena moot); Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159, 484 N.E.2d 1015 (1985), and cases cited.

b. Standard of review. The witness does not dispute that a petition pursuant to G.L. c. 211, § 3, was the appropriate avenue by which the Commonwealth could seek to challenge the motion judge's decision quashing the subpoena. See Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599, 574 N.E.2d 373 (1991). We review the single justice's decision denying the Commonwealth's petition for an abuse of discretion or other error of law. Matter of the Enforcement of a Subpoena, 436 Mass. 784, 786, 767 N.E.2d 566 (2002). The witness contends that the motion judge's underlying decision was a discretionary one, in which she balanced the witness's privacy interests against the grand jury's need for the witness's testimony, see id. at 794, 795, 767 N.E.2d 566, quoting Ward v. Peabody, 380 Mass. 805, 813-814, 819, 820, 405 N.E.2d 973 (1980), and that the single justice similarly had discretion to deny the Commonwealth's petition. However, the witness's motion to quash was based not on a claim of privacy interests, but solely on her assertion of a statutory privilege. The motion judge accordingly ruled on the issue of statutory privilege, interpreting G.L. c. 233, § 20, Second, as extending to proceedings before the grand jury.

That issue of statutory interpretation posed a pure question of law, not a matter addressed to the motion judge's discretion. And "if the motion judge's order [quashing the subpoena] was unlawful, the single justice had no discretion to deny the Commonwealth relief." Matter of a John Doe Grand Jury Investigation, supra. Where, as here, the Commonwealth alleges an error of law in the interpretation of the statute in question, committed by both the motion judge and the single justice, our review is essentially unaffected by the latitude that is ordinarily given to the single justice on a review for abuse of discretion. Instead, "we in effect review the motion judge's conclusion that on [statutory grounds], the subpoena[ ] should be quashed." Id. at 598-599, 574 N.E.2d 373. We therefore turn to the legal issue presented on this appeal, namely, whether the spousal privilege set forth in G.L. c. 233, § 20, Second, may be exercised before the grand jury.

c. Interpretation of G.L. c. 233, § 20, Second. When construing a statute, we look first and foremost to the language of the statute as a whole. Commonwealth v. DeBella, 442 Mass. 683, 687, 816 N.E.2d 102 (2004), and cases cited. Where the statute confers a testimonial privilege, the language of the statute is to be strictly construed. Matter of a Grand Jury Investigation, supra at 24, 819 N.E.2d 171, quoting Three Juveniles v. Commonwealth, 390 Mass. 357, 359, 455 N.E.2d 1203 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068, 104 S.Ct. 1421, 79 L.Ed.2d 746 (1984).²

The spousal privilege not to testify is conferred by the second paragraph of G.L. c. 233, § 20, which provides (with certain exceptions not relevant here): "[N]either husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other." The witness contends that this provision should be read to mean that a spouse cannot be "compelled to testify in. . . [a] criminal proceeding against the other," and, where her husband was the target of the grand jury's investigation (and already under arrest for the alleged offense), the grand jury proceedings were a "criminal proceeding against" her husband. G.L. c. 233, § 20, Second. The Commonwealth contends that the statutory privilege applies only to testimony "in the trial of an ... other criminal proceeding against" the witness's spouse, and that grand jury proceedings are not "trial[s]."³ Id.

The Commonwealth's proposed reading of the statutory language makes syntactical sense, whereas the witness's proposed reading does not. The Commonwealth correctly notes that the words "in the trial of an" introduces, and therefore applies to, the three next identified proceedings ("indictment, complaint or other criminal proceeding"). Id. Moreover, all three forms of proceedings must be "against the other" spouse. Id. See Commonwealth v. Maillet, 400 Mass. 572, 576-578, 511 N.E.2d 529 (1987) ("against the other" refers to nature of proceeding, not to content of spouse's anticipated testimony). If, as the witness argues, the term "trial" was limited to the trial of an "indictment" or the trial of a "complaint," whereas the privilege was to apply in all phases of any form of "criminal proceeding," the wording and punctuation would need to reflect that limitation (e.g., "in the trial of an indictment or complaint, or in any other criminal proceeding"). The witness's proposed construction, separating "other criminal proceeding" from "trial of an indictment, complaint," would also leave the qualifying term "against the other" applicable only to the immediately preceding term "other criminal proceeding," meaning that any married person would have a privilege not to testify in the "trial of an indictment, complaint," even if that witness's spouse was not a defendant. This would produce an absurd result, and one obviously not intended by the Legislature. In short, both the first four words ("in the trial of") and the last three words ("against the other") apply to and qualify all that comes in between ("an indictment, complaint or other criminal proceeding").

We must also interpret the words of a statute in a manner that avoids rendering any of the words superfluous. Bynes v. School Comm. of Boston, 411 Mass. 264, 267-268, 581 N.E.2d 1019 (1991), and cases cited. If, as the witness contends, the spousal privilege applied in any stage of any criminal proceeding, the words "trial of an indictment, complaint" would be superfluous—criminal trials are obviously "criminal proceeding[s]," and there would be no need to identify them expressly in a statute that conferred a privilege not to testify in any "criminal proceeding against" the witness's spouse.

By comparison, none of the statute's terms is rendered superfluous by the Commonwealth's proposed interpretation. Under our present Mass. R.Crim. P. 3, as appearing in 442 Mass. 1502 (2004), criminal prosecutions can only be commenced by way of an indictment or complaint, but that has not always been the case. At the time the spousal privilege was first enacted in 1870,⁴ criminal charges had long been brought by way of an information.⁵ See Jones v. Robbins, 74 Mass. 329, 8 Gray 329, 342 (1857); id. at 359, 367, 368-369 (Merrick, J., dissenting); Commonwealth v. Waterborough, 5 Mass. 257, 259 (1809). The inclusion of the words "other criminal proceeding," in both the original and the current version of the privilege statute, ensures that the privilege is applicable in all criminal trials, by whatever means the criminal process is initiated. By making the privilege applicable in all criminal trials, however commenced, the statute recognizes the possibility that our own criminal procedures may be modified to permit other methods of bringing criminal charges against a defendant.⁶ The reference to "trial of an ... other criminal...