Murphy v. Com.

Decision Date28 March 1968
Citation354 Mass. 81,235 N.E.2d 552
PartiesDaniel MURPHY v. COMMONWEALTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Lawrence F. O'Donnell, Boston (John B. Greene, Boston, with him), for petitioner.

Willie J. Davis, Asst. Atty. Gen., (John F. McAuliffe, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

The issues raised by this petition for writ of error, which has been reserved and reported by the single justice without decision, are the validity of the action of a judge of the Superior Court in finding the petitioner guilty of criminal contempt and committing him to jail for one year (following the term he was serving in the House of Correction) for failure to answer two questions when a witness before a grand jury, who were investigating a murder.

On June 27, 1967, the petitioner was before the grand jury as a witness, having been duly summoned. The two questions, asked by an assistant district attorney, were:

'Were you present in any building on the evening of April 25, 1966, or the morning of April 26, 1966, and a witness to a shooting in this building?'

'Were you present during the evening of April 25, 1966, or the morning of April 26, 1966, and a witness to a shooting of a man by the name of Anthony Veranis?'

The petitioner refused to answer on advice of counsel, invoking the Fifth Amendment of the Constitution of the United States and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth on the ground that his answers might tend to incriminate him. He was then brought before a judge of the Superior Court, where the assistant district attorney stated that the petitioner had not been a suspect in the matter under investigation, either as to the events leading up to the crime, as to its perpetration, or any events following it, and was before the grand jury merely as a witness. The judge ordered the petitioner to return before the grand jury and to answer the questions. Again before the grand jury the petitioner repeated his refusal to answer on the advice of counsel in reliance on the same constitutional grounds.

On July 12, 1967, the petitioner was brought before the same judge on an order to show cause why he should not be adjudged in contempt. The petitioner was represented by counsel. The assistant district attorney stated that one William Geroway had been indicted by the grand jury, who had completed their term of service. The district attorney also stated that the shooting and murder occurred near Dudley Street in the Roxbury District of Boston in the late evening of April 25, 1966, or the early morning of April 26; that following the shooting and further assaults on the victim his body was dumped in the Blue Hills section of Milton and was recovered on April 26.

The petitioner offered in evidence his probation record in the Superior Court which showed convictions unrelated to the matter under investigation. The record began with June 10, 1944, and ended with a conviction for larceny on March 4, 1967, and a sentence of six months to the House of Correction. The assistant district attorney stated that if the petitioner had replied before the grand jury that he had been present, he then would have been asked merely what he had been and what he had heard.

We consider only the Federal constitutional question. Our conclusion must rest upon our opinion as to what is foreclosed under the decisions expressing the current view of the Supreme Court of the United States. Our conclusion cannot be governed by our personal views of the merits or by any fear on our part that the probable consequence could be an impairment of the effectiveness of the investigatory powers of the grand jury in the solution of crime.

The current view of the Supreme Court of the United States has origin in Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, which reversed a conviction of...

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17 cases
  • Pappas, In re
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 29, 1971
    ...Jurors for Worcester County case, 329 Mass. 89, 90--91, 106 N.E.2d 539, supra (protection of privileged matter); Murphy v. Commonwealth, 354 Mass. 81, 82--84, 235 N.E.2d 552 (privilege against self-incrimination; but cf. Gambale v. Commonwealth, 355 Mass. 394, 396--398, 245 N.E.2d 246). See......
  • Com. v. Douglas
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 3, 1968
    ...raised the issue (see Commonwealth v. Baker, 348 Mass. 60, 63, 201 N.E.2d 829; cf. Murphy v. Commonwealth, 353 Mass. ---, ---, d 235 N.E.2d 552) whether the witness was being afforded too broad a protection based upon his 6. Sacks's testimony on redirect examination about what he told his a......
  • Com. v. Francis
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 10, 1978
    ...355 Mass. 394, 396, 245 N.E.2d 246, cert. denied, 396 U.S. 881, 90 S.Ct. 158, 24 L.Ed.2d 140 (1969). Murphy v. Commonwealth, 354 Mass. 81, 83-84, 235 N.E.2d 552 (1968). Commonwealth v. Baker, 348 Mass. 60, 63, 201 N.E.2d 829 (1964). By these standards, a witness's refusal to testify on Fift......
  • Com. v. Funches
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 30, 1979
    ...v. Commonwealth, 355 Mass. 394, 245 N.E.2d 246, Cert. denied, 396 U.S. 881, 90 S.Ct. 158, 24 L.Ed.2d 140 (1969). Murphy v. Commonwealth, 354 Mass. 81, 235 N.E.2d 552 (1968); Commonwealth v. Baker, 348 Mass. 60, 201 N.E.2d 829 (1964). A witness may refuse to testify unless it is " 'Perfectly......
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