People ex rel. Losavio v. J. L.

• Decision Date: 05 June 1978
• Docket Number: Nos. 27933,27892,s. 27933
• Citation: 580 P.2d 23,195 Colo. 494
• Parties: The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO, Jr., District Attorney within and for the Tenth Judicial District of the State of Colorado, Plaintiff-Appellant, v. J. L., a Witness before the 1977 Pueblo County Statutory Grand Jury, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 23

580 P.2d 23

195 Colo. 494

The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO,

Jr., District Attorney within and for the Tenth

Judicial District of the State of

Colorado, Plaintiff-Appellant, v. J. L., a Witness before the 1977 Pueblo County Statutory

Grand Jury, Defendant-Appellee.

Nos. 27933, 27892.

Supreme Court of Colorado,En Banc.

June 5, 1978.

Rehearing Denied July 10, 1978.

J. E. Losavio, Jr., Dist. Atty., Warren T. Marshall, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

Darol C. Biddle, Pueblo, for defendant-appellee.

ERICKSON, Justice.

This appeal was taken pursuant to the provisions of section 16-12-102, C.R.S.1973. The district court, in construing section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.), found that portion of the statute unconstitutional which provides that "an attorney present in the grand jury room shall take an oath of secrecy." We reverse the trial court.

The issues in this case involve the constitutionality of section 16-5-204(4) (d), C.R.S.1973 (1977 Supp.):

"(d) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury."

A close reading of section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.), reveals that the General Assembly intended to expand the protections afforded witnesses before grand juries, and, at the same time, to insure the continued secrecy of the grand jury process. The statute grants grand jury witnesses the right to have counsel present in the grand jury room during questioning and extends that right to all grand jury witnesses, including those financially unable to retain private counsel. However, in provisions designed to preserve the secrecy of the grand jury, attorneys present in the grand jury room are required to take the traditional oath of secrecy and are prohibited from providing counsel to more than one witness in a single criminal investigation, except with the permission of the grand jury.

The trial court held that the attorney's oath requirement contained in section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.), was constitutionally infirm on three grounds. First, the oath requirement was held to be violative of the equal protection clause of the Fourteenth Amendment. Secondly, the provision was held to violate a grand jury witness' right to the effective representation of counsel of his own choice. And finally, the oath requirement was declared to be overbroad in violation of due process guarantees.

Before addressing the trial court's conclusion, we are confronted with a threshold question concerning the possible existence and extent of a grand jury witness' right to counsel prior to the enactment of section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.). This inquiry is crucial to a proper determination of this case, in light of the fact that the trial court implicitly assumed that the prior practice of permitting grand jury witnesses to absent themselves during questioning to consult with counsel outside the confines of the grand jury room remains available.

Under well-established principles of constitutional law, grand jury witnesses cannot insist upon the presence of counsel in the grand jury room. United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); People v. Downer, Colo., 557 P.2d 835 (1976). In United States v. Mandujano, supra, the plurality pointed out that:

"Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. . . ."

The established practice of permitting access to counsel also lacks a constitutional foundation. In United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972), the court rejected an indigent witness' contention that he was entitled to appointed counsel outside the grand jury room:

"We deal first with the claim to right of counsel. First, it is clear there is no right to counsel for witnesses appearing before a grand jury. In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376, 380 (1957). Daniels concedes as much, but argues that when an indigent witness is advised that he may have an attorney present, he must also be advised that if he is unable to provide his own counsel, one will be appointed for him free of cost. There is simply no such requirement. The need to advise a defendant of his right to appointed counsel arises only at certain critical stages of criminal proceedings. Daniels was not under indictment when he appeared; he was only a witness. Merely because a grand jury or other administrative body has chosen to permit a witness to retain his own counsel is not controlling." (Footnote omitted.)

Several courts, however, have recognized the accepted practice of permitting grand jury witnesses access to counsel outside the grand jury room and have incorrectly referred to such an opportunity as a "right." ¹ E. g., United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968), cert. denied 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969); United States v. DeSapio, 299 F.Supp. 436 (S.D.N.Y.1969).

The inescapable conclusion required by the established case law is that courts have chosen to afford grand jury witnesses the opportunity to consult with an attorney outside the grand jury room concerning his privilege against self-incrimination. See Silbert, Defense Counsel in the Grand Jury The Answer to the White Collar Criminal's Prayers, 15 Am.Crim.L.Rev. 293 (1978). The established practice reflects a reasonable and workable accommodation of the traditional role of the grand jury and the interest of a witness to obtain protection against compulsory self-incrimination in the absence of a legislative enactment.

Close scrutiny of the various provisions of section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.), reveals that the legislature intended to abolish the established practice and substitute a system which expands the protections afforded grand jury witnesses while insuring continued efficacy of the grand jury process. The Colorado statute requires that attorneys take an oath of secrecy and prohibits such attorneys from representing more than one witness in a single criminal investigation without grand jury permission. Nothing is more obvious than that the purposes to be served by the statute could be routinely evaded if attorneys were permitted to choose to remain outside the grand jury room and avoid the statute's various provisions relating to witness' counsel. We conclude, therefore, that the legislative enactment of comprehensive provisions concerning the right of counsel to appear in the grand jury room negates the assumption that the prior practice continues to exist as an alternative. No longer is a witness permitted to leave the grand jury room to consult counsel after the grand jury asks a potentially incriminating question. The statutory procedure is intended to not only protect the rights of the witnesses that appear before the grand jury, but is also directed at conservation of the time of the grand jury. By affording every witness the right to counsel in the grand jury proceeding, the General Assembly has provided a means for protecting the constitutional rights of every witness, while avoiding the delay occasioned by the witness leaving the grand jury room to consult with counsel.

I. Equal Protection

The trial court's conclusion that the oath requirement violated rights to equal protection under the Fourteenth Amendment to the United States Constitution was grounded in the incorrect assumption that counsel could refuse to take the oath and provide counsel outside the confines of the grand jury room. Based upon that assumption, the trial court found that counsel physically present inside the grand jury room were impermissibly treated differently than attorneys who provided counsel outside the grand jury room. Absent a rational basis for the classification, the court concluded that equal protection guarantees were violated.

The fallacy of the court's analysis rests upon its assumption that the prior practice continues as an alternative to the legislative scheme. It does not. Consequently, the statute does not create a classification subject to challenge under the equal protection clause.

II. Choice of Counsel

The trial court did not expressly hold that the prohibition against multiple representation contained in section 16-5-204(4)(d), C.R.S.1973 (1977 Supp.), was unconstitutional. It did, nonetheless, endorse the argument that the oath requirement precluded an attorney from representing more than one witness before a particular grand jury investigation and, therefore, infringed upon the witness' right to counsel of his own choice. We disagree.

It is...