Luna v. Superior Court

• Decision Date: 27 June 1990
• Citation: 407 Mass. 747,555 N.E.2d 881
• Parties: . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 881

555 N.E.2d 881

407 Mass. 747

Carlos LUNA v. SUPERIOR COURT.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 2, 1990.

Decided June 27, 1990.

Willie J. Davis, Boston, for petitioner.

Max D. Stern (Patricia Garin with him), Boston, for Albert Lewin, intervener.

Tobin N. Harvey, Deputy Atty. Gen. (Jill S. Plancher, Asst. Atty. Gen., with him), for the Atty. Gen., amicus curiae.

Before LIACOS, C.J., and NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

Detective Carlos Luna of the Boston police department (petitioner) appeals from successive denials by single justices of this court of his petitions under G.L. c. 211, § 3 (1988 ed.), seeking relief from the orders of a Superior Court judge compelling him to testify in connection with criminal proceedings against Albert Lewin. In both cases the petitioner asserted that the orders would violate his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. A single justice first declined to set aside the judge's allowance of Lewin's motion to compel the petitioner to testify at the hearing on Lewin's renewed motion to dismiss (SJC No. 5320). Thereafter, another single justice declined to set aside the judge's ruling that the petitioner could be compelled to testify at Lewin's trial (SJC No. 5326). Because the petitioner has already given testimony in connection with Lewin's renewed motion to dismiss, the question raised in SJC No. 5320 is moot. We affirm the single justice's decision in SJC No. 5326, that the petitioner can be compelled to testify at Lewin's trial.

Commonwealth v. Lewin, 405 Mass. 566, 542 N.E.2d 275 (1989), provides a detailed chronology of the underlying facts in this case. That decision followed dismissal in the Superior Court of a murder indictment against Lewin on the ground that the Commonwealth had failed to produce a confidential informant purportedly relied upon by the police department. The Commonwealth moved for reconsideration of the order of dismissal and represented to the court that the petitioner's previous statements concerning the informant had been inaccurate in several respects. The petitioner filed an affidavit setting forth a revised version of the events in compliance with the judge's order. This court reinstated the indictment on appeal. Id. at 588, 542 N.E.2d 275.

Lewin filed another motion to dismiss in the Superior Court and moved that the petitioner be compelled to testify. The judge granted Lewin's motion to compel the petitioner's testimony only to permit cross-examination of the petitioner concerning the facts asserted in his affidavit. The petitioner invoked his State and Federal privilege against self-incrimination, and the judge ruled that he had waived his privilege with respect to matters discussed in his affidavit. The single justice denied the petitioner's subsequent petition for relief under G.L. c. 211, § 3, and refused to grant a stay pending appeal.

The petitioner thereafter testified for two days in connection with Lewin's renewed motion to dismiss. The judge observed that "Luna's testimony far exceeded the limited scope this court prescribed in its ... decision [granting Lewin's motion to compel Luna to testify]," and that Luna testified "comprehensively and fully" in connection with the renewed motion to dismiss.

In accordance with an agreement of the parties to avoid delaying Lewin's trial, the petitioner has appeared in Superior Court and stated that, if called as a witness, he would invoke his privilege against self-incrimination. The judge ruled that the petitioner had waived the privilege and ordered him to appear and give testimony at trial. The petitioner sought relief under G.L. c. 211, § 3, and a single justice denied his petition.

1. SJC No. 5320. After the single justice denied his first petition for relief under G.L. c. 211, § 3, the petitioner filed a notice of appeal. He then returned to the Superior Court and testified fully, without objection as to the scope of the examination. Therefore, the appeal of the order compelling him to testify at the hearing on Luna's renewed motion to dismiss is moot. See, e.g., Lockhart v. Attorney Gen., 390 Mass. 780, 784, 459 N.E.2d 813 (1984); Silverman's Liquor Mart, Inc. v. Licensing Bd. for Boston, 348 Mass. 524, 530-531, 204 N.E.2d 712 (1965). There is no longer a live controversy concerning the petitioner's testimony at that hearing.

The petitioner contends that the issue is not moot because he is under indictment for perjury and related offenses and fears that the Commonwealth may seek to use his compelled testimony in the criminal proceedings against him. We do not agree.

Any dispute regarding the use of the petitioner's testimony in the criminal proceedings against him may be litigated and appealed, as part of those proceedings.

2. SJC No. 5326. ¹ Decisions of a single justice will not be disturbed on appeal absent clear error of law or abuse of discretion. See, e.g., Fogarty v. Commonwealth, 406 Mass. 103, 106, 546 N.E.2d 354 (1989). Neither is present here.

The single justice ruled that there was a sufficient basis in the record to conclude that the petitioner waived his privilege against self-incrimination when he voluntarily submitted an affidavit in conjunction with the Commonwealth's motion for reconsideration of the dismissal of the indictment, and that the petitioner's waiver extends to his testimony at trial. We agree.

"It has long been the law in Massachusetts that if an ordinary witness, not a party to a cause,...