Martincich v. City of Hammond

• Decision Date: 20 April 1981
• Docket Number: No. 3-1279A360,3-1279A360
• Citation: 419 N.E.2d 240
• Parties: Jersey MARTINCICH, Appellant (Plaintiff Below), v. CITY OF HAMMOND, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 240

419 N.E.2d 240

Jersey MARTINCICH, Appellant (Plaintiff Below), v. CITY OF HAMMOND, Appellee (Defendant Below).

No. 3-1279A360.

Court of Appeals of Indiana, Third District.

April 20, 1981.

Sheldon H. Cohan, Merrillville, for appellant.

Robert G. Berger, Abrahamson, Reed & Tanasijevich, Hammond, for appellee.

HOFFMAN, Presiding Judge.

Jersey Martincich appeals the trial court's judgment sustaining a decision of the Hammond Board of Public Works and Safety dismissing him from the Hammond Police Department. Martincich presents the following issues for review:

(1) whether Martincich's right to avoid self-incrimination was violated in both an interview in the police chief's office and during the hearing before the Board of Public Works and Safety;

(2) whether due process was violated by the absence of one member of the Board during portions of the testimony;

(3) whether the participation of the city attorney as president of the Board of Public Works and Safety was improper;

(4) whether the Board violated IC 1971, 18-1-11-3 by failing to include in its records written reasons for Martincich's dismissal; and

(5) whether Martincich's dismissal was in accordance with the rules and regulations of the Hammond Police Department.

The record indicates that Martincich was awakened and escorted to the police chief's office by other officers on the night of September 21, 1970. The chief read the Miranda rights to Martincich and then questioned him about his relationship with certain individuals and his actions in selling outboard motors and other merchandise at suspiciously low prices. Also present were the attorney for the police department, an FBI agent and other Hammond police officers. Following the questioning, the chief filed a request for Martincich's dismissal with the Hammond Board of Public Works and Safety. The charges against Martincich may be summarized as follows:

1. that he associated with known burglars;

2. that he never requested permission to associate with such persons;

3. he refused to answer questions put to him by the chief;

4. he offered to sell goods to certain businesses at suspiciously low prices;

5. he told one of the known burglars that he could get rid of certain stolen merchandise;

6. that he bought six outboard motors from one of the named individuals; and

7. that he cooperated with one of the same persons in checking to see if the police department knew about an outstanding warrant.

The Board of Public Works and Safety conducted a hearing on the charges. The chief of police was represented by an attorney who was apparently not associated with the city attorney's office. The Board was presided over by John Leeney, the city attorney. The other members of the Board were the city engineer, Tom Conley, and the city comptroller, Donald Gavit. Mr. Gavit was not present during a portion of the testimony, due to illness, but did participate in the Board's deliberations. The Board found sufficient evidence to sustain all but one of the charges against Martincich and discharged him.

Following the Board's decision Martincich filed a complaint to reinstate which was eventually tried in the Porter Superior Court. The trial court made findings of fact and conclusions of law and entered judgment affirming the Board's decision.

Martincich first asserts that his Fifth Amendment right to be free from self-incrimination was violated in two respects. He contends that the initial questioning before the chief placed him in a position of either making self-incriminating statements or being discharged for refusing to answer. Martincich also argues that his right was abridged when the Board ruled that if Martincich chose not to testify when called as a witness by the police chief, he would be precluded from later testifying in his own defense.

It must initially be noted that the availability of the Fifth Amendment privilege does not depend on whether a proceeding is civil, criminal or administrative, but rather, on whether a statement is, or may be, inculpatory. Haskett v. State (1970), 255 Ind. 206, 263 N.E.2d 529. Although the privilege is available in a civil or administrative proceeding, it may be properly invoked only when a person is compelled to give statements which may be incriminating. "(T)he purpose of the fifth amendment is to prevent compelled self-incrimination, not to protect private information." (Original emphasis.) Eaton v. State (1980) Ind., 408 N.E.2d 1281, at 1283, citing Fisher v. United States (1976) 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39. Garner v. United States (1976) 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370; United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.

A review of the record fails to disclose any incriminating statements made by Martincich. The only charges made by the chief which could give rise to a criminal prosecution were those related to Martincich's receiving and selling possible stolen merchandise. The other charges against Martincich, although they may have been sufficient to subject him to departmental disciplinary action, were not sufficient to initiate a criminal prosecution. Martincich, when asked about the merchandise, at all times denied either knowing of, or selling, stolen merchandise. Instead, Martincich explained how some of the merchandise came into his possession and denied ever having possession of other merchandise. These statements were self-serving, not self-incriminating.

There is also no evidence that Martincich was compelled to make any statements. Before the chief began to question Martincich, he informed the officer of the right to remain silent and his right to counsel. Martincich answered many questions without invoking either of these rights. ¹ There is no indication that anyone told Martincich that he would be discharged if he refused to answer incriminating questions. The only evidence in this regard was a question put to Martincich concerning his state of mind at the time of the interview in the chief's office. Martincich replied, "I figure I could get suspended at the time." This is hardly evidence of compulsion. ²

There is also no evidence that Martincich was compelled to testify against himself at the Board meeting. When Martincich objected to being called as a witness for the police chief, the Board ruled that he could refuse to testify, but if he did so, he would be precluded from testifying at a later time. This ruling did not compel Martincich to testify, but rather, it forced him to make a decision at the beginning of the hearing as to whether or not he would testify. Furthermore, when Martincich chose to testify, the president of the Board pointed out that Martincich could refuse to answer individual questions. Martincich failed to exercise this right. It is clear that Martincich's Fifth Amendment rights were adequately protected both in the chief's office and during the Board's hearing.

Martincich next challenges Mr. Gavit's participation in the Board's deliberations. Martincich contends that because Mr. Gavit did not hear all of the testimony he may have had an improper influence on the decisions of the other Board members.

At the hearing Martincich objected to proceeding without Mr. Gavit, apparently because he felt that the nature of the hearing mandated a full Board. These objections were phrased in terms of jurisdiction. IC 1971, 18-1-11-2 (Burns Code Ed.) provides that any two members of the Board constitute a quorum. Inasmuch as Mr. Conley and Mr. Leeney were present to hear all the testimony, Martincich's objections were properly overruled. The presence of Mr. Gavit was not necessary for an adjudication of the matter.

Martincich's argument on appeal differs from that raised at the hearing. Martincich now contends that Mr. Gavit may have improperly influenced the other members of the Board. The record discloses that at the close of the testimony President Leeney stated:

"I would like an opportunity to talk with Mr. Gavit and Mr. Conley before deciding what action will be taken, so we will just be excused for a few minutes and let you know."

At this time no objection was raised to Mr. Gavit participating in this discussion. In fact, no objection was raised until after President Leeney announced the Board's decision. That objection still pertained to the Board's jurisdiction and not to Mr. Gavit's participation in the...