People v. Giacalone, Docket No. 3974

• Decision Date: 29 May 1969
• Docket Number: Docket No. 3974,No. 1,1
• Citation: 17 Mich.App. 508,170 N.W.2d 179
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vito GIACALONE, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 179

170 N.W.2d 179

17 Mich.App. 508

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Vito GIACALONE, Defendant-Appellee.

Docket No. 3974.

Court of Appeals of Michigan, Division No. 1.

May 29, 1969.

Released for Publication Sept. 4, 1969.

Lawrence A. Burns, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Francis W. Edwards, Asst. Atty. Gen., Detroit, for appellee.

Before LEVIN, P.J., and R. B. BURNS and DALTON, ^* JJ.

DALTON, Judge.

Pursuant to subpoena direction, appellee on August 8, 1966, appeared before Judge Edward S. Piggins, sitting as a one-man grand juror. Certain questions were asked him which appellee refused to answer on advice of counsel. The grand juror ordered appellee to answer the questions and he continued to refuse to do so on advice of counsel, claiming constitutional privilege. At that time certain other criminal prosecutions were pending against appellee. There was no grant of immunity.

Because of his aforesaid conduct, a bench warrant was issued on August 23, 1966, by the grand juror charging appellee with criminal contempt under C.L.S.1961, § 767.5 (Stat.Ann.1954 Rev. § 28.945). On June 12, 1967, trial thereon was had before Judge Harry J. Dingeman, Jr. at which time the statutory term of the grand jury had expired. Before commencement of trial, appellee conditionally waived trial by jury if it was determined that the contempt, if any, was in fact criminal and not civil.

Relying upon Shillitani v. United States (1966), 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622, Judge Dingeman dismissed the charges against appellee at the conclusion of the trial, stating in his opinion in part as follows:

'Now, in the Shillitani v. United States case, the sentence contained a purge provision and it was held that since that Grand Jury had expired and that provision of the sentence could not longer be effected, the petitioner should be released. Here I am asked to find this defendant guilty under a section of the statute that provides that purge provision and impose a sentence upon him which no longer can be purged.

'There is no more Piggins Grand Jury. As I have indicated, there were other contempt of court proceedings under which it would have been possible to pursue the defendant, but in my opinion there cannot be any pursuit at this time under this section. I cannot follow the statute and impose a sentence which provides for a purging if the defendant so desires and which cannot be done. It seems unnecessary to decide at this time whether or not the refusal of the defendant to answer the questions was contempt or not. That question is moot, in my opinion. It will dismiss the matter for these reasons, gentlemen.'

The people claim the trial judge was in error in dismissing the charges because a prosecution for criminal contempt after expiration of the grand jury term is proper under the grand jury contempt statute.

Defendant claims that the contempt statute, with its self-contained right to purge, transforms all contempt proceedings brought under it into civil contempts, and the trial judge did not err in his ruling.

Subsequent to oral arguments, counsel were directed to submit supplemental briefs on the following question:

In the light of the rule stated in People v. Freleigh, 334 Mich 306 (54 N.W.2d 599), is the proviso to CLS 1961, § 767.5 (Stat Ann 1954 Rev § 28.945) constitutional; and, if not, is the proviso severable so that the remainder of that section is constitutional?

The people claim that criminal contempt is an offense within the meaning of the constitution and that the proviso is unconstitutional as an infringement upon the constitutional pardoning and commutation powers of the governor, but is severable.

Defendant claims that the contempt statute leaves no doubt that its entire purpose is to obtain testimony to further the investigation of the grand juror by inclusion of the proviso, that any contempt is therefore civil, not subject to the pardoning or commutation power of the governor, and that the statute is therefore constitutional and not severable.

C.L.S.1961, § 767.5 (Stat.Ann.1954 Rev. § 28.945) provides as follows:

'Any witness neglecting or refusing to appear in response to such summons or to answer any questions which such judge may require as material to such inquiry, shall be deemed guilty of a contempt and after a public hearing in open court and conviction of such contempt, shall be punished by a fine not exceeding $1,000.00 or imprisonment in the county jail not exceeding 1 year or both at the discretion of the court: Provided, That if such witness after being so sentenced shall offer to appear before such judge to purge himself of such contempt, the judge shall cause such witness to be brought before him and, after examination of such witness, the judge may in his discretion commute or suspend the further execution of such sentence.'

The contempt statute makes provision for punishment for both civil and criminal contempt.

In fixing the maximum term of imprisonment for criminal contempt at one year, the legislature was well aware that the permissive life of a grand jury was six months unless extended for an additional six months. (C.L.S.1961, § 767.4 (Stat.Ann.1954 Rev. § 28.944).

In its application to criminal contempt, the contempt statute is clear and unambiguous as is the intent of the legislature.

Expiration of the grand jury term is not a bar to a prosecution for criminal contempt for contumacious conduct occurring during the grand jury inquiry.

Shillitani dealt with civil contempt only and is not applicable to criminal contempt.

Const.1963, art. 5, § 14, so far as applicable hereto, provides as follows:

'The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law.'

It is conceded, and we agree, that the final clause of the above provision relates only to the methods governing the exercise of the power and is not a limitation on the power itself.

Is criminal contempt an offense which may be pardoned or commuted by the governor?

Contempt proceedings brought to punish a witness before a one-man grand jury are...