Petition of Dist. Atty. for Plymouth Dist.

• Decision Date: 23 April 1984
• Citation: 391 Mass. 723,464 N.E.2d 62
• Parties: Petition of the DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 62

464 N.E.2d 62

391 Mass. 723

Petition of the DISTRICT ATTORNEY FOR the PLYMOUTH DISTRICT.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 7, 1984.

Decided April 23, 1984.

Robert S. Sinsheimer, Asst. Dist. Atty., for the Commonwealth.

Willie J. Davis, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LIACOS, Justice.

Seeking to compel testimony from a witness who claimed his Fifth Amendment privilege before a grand jury, the district attorney for the Plymouth District filed an application for a grant of immunity with a single justice of the Supreme Judicial Court for Suffolk County. See art. 12 of the Massachusetts Declaration of Rights; U.S. Const. amend. V; G.L. c. 233, § 20E. ¹ The single justice heard argument from counsel for both parties, and reserved and reported the matter to the full bench.

The Commonwealth contends that the single justice had the power to grant immunity pursuant to § 20E, since the witness had claimed his privilege against self-incrimination and refused to testify before a grand jury proceeding. Alternatively, the Commonwealth claims that the single justice should have granted the immunity under the court's constitutional and statutory superintendency authority. See G.L. c. 211, § 3. Finally, the Commonwealth asserts that the witness should be compelled to testify without a grant of immunity since he waived his Fifth Amendment privilege by answering questions about the same matter before a different grand jury. ²

The witness contends that the Commonwealth has not followed the statutory procedure for obtaining a grant of immunity and, instead, has abused the grand jury process by requiring the witness to appear before a grand jury for the sole purpose of obtaining testimony in a forthcoming murder trial of another person. Therefore, the witness asserts that immunity should not be granted in this case. ³ We conclude that the Commonwealth has not adhered to the prescribed procedure for seeking immunity and seeks improperly to utilize the grand jury process in an attempt to immunize the witness. Furthermore, we conclude that the question whether the witness has waived his Fifth Amendment privilege by testifying at a previous grand jury proceeding is a matter best left to the determination of a trial judge.

The parties have stipulated to the following relevant facts. In September, 1981, the body of a young woman brutally murdered was found in a stream in Brockton. Laboratory analysis showed the presence of semen in her mouth. Suspicion focused on both Richard A. Palaza (the witness) and Jeffrey R. Jones (the defendant). The victim was last seen alive in their company.

Testifying before a Plymouth County grand jury investigating possible charges in connection with the woman's death, the defendant and the witness accused each other of committing the murder then alleged. Both men were indicted for aggravated rape and murder. The Commonwealth elected to prosecute the witness first, believing the government's case against him to be stronger. Although he was required to appear and to submit to examination at the witness's trial, the defendant refused to testify. The Commonwealth failed to take any action to compel his testimony. Subsequently, the jury acquitted the witness of all charges.

Almost immediately following the verdict, the witness received a summons ordering him to appear and to testify at the trial of the defendant. The witness advised the Commonwealth that, if called to testify, he would assert his privilege not to incriminate himself. Subsequently, the witness was summoned to testify again before a Plymouth County grand jury. As the Commonwealth concedes, this grand jury was not involved in an ongoing investigation into the victim's death. The purpose of summoning the witness was to determine whether he actually would assert the privilege and would refuse to testify concerning the defendant's involvement in the victim's death. Should the witness assert the privilege, the Commonwealth indicated that it would seek an immunity order for the witness. After attempting unsuccessfully to quash the summons, the witness appeared before the grand jury and asserted the privilege with respect to all questions except those asking for his name and address. The Commonwealth subsequently filed this application for immunity under G.L. c. 233, § 20E, and alternatively sought the same relief pursuant to G.L. c. 211, § 3.

We have stated that "a witness called to testify before a grand jury may be granted immunity from prosecution only in the manner prescribed by statute." Grand Jurors for Middlesex County for the Year 1974 v. Wallace, 369 Mass. 876, 879, 343 N.E.2d 844 (1976). "[T]he statutes provide that immunity may be granted thereunder only in proceedings or investigations concerned with certain specified crimes." Id. Specifically, G.L. c. 233, § 20E, inserted by St. 1970, c. 408, provides that a single justice of the Supreme Judicial Court may grant the Commonwealth's application for immunity "[i]f, after a hearing, ... the justice finds that the witness did validly refuse to answer questions ... on the grounds that such testimony ... might tend to incriminate him and that the investigation or proceeding before the grand jury involves an offense listed in section twenty D ..." (emphasis supplied). General Laws c. 233, § 20D, prescribes that a witness called to testify before a grand jury may be granted immunity in any proceeding or investigation involving certain, enumerated crimes. ⁴

The Commonwealth's method of seeking immunity clearly does not comport with these statutory procedures. See G.L. c. 233, §§ 20D and 20E. As the Commonwealth conceded, the grand jury, which was convened soon after the witness's acquittal, was not involved in any continuing investigation concerning the victim's death. The Commonwealth never claimed that this grand jury was investigating any other crimes which would entitle the district attorney to seek immunity for a witness under G.L. c. 233, § 20D. ⁵ The Commonwealth admitted that the sole purpose of the summons was to determine whether the witness would assert his Fifth Amendment privilege and would refuse to testify concerning the victim's death. In short, it appears that the witness was brought before the grand jury solely to obtain an order of immunity and thus obtain his testimony.

The Commonwealth cannot prevail on its contention that an exception to the statutory immunity procedures should lie where the Commonwealth's objective in seeking grand jury testimony is to determine whether a crucial witness intends to claim the Fifth Amendment privilege and, therefore, whether a grant of immunity must be sought to compel his testimony. To sanction such an exception not only would invalidate the rule that the statutory procedures for obtaining immunity should be followed, but also would tolerate an abuse of the grand jury process. We have stated that "it is improper to use [a] grand jury for the purpose of preparing an already pending indictment for trial." Commonwealth v. Liebman, 379 Mass. 671, 677, 400 N.E.2d 842 (1980). ⁶ See United States v. Doe, 455 F.2d 1270, 1273 (1st Cir.1972); United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir.1972). ⁷ That is precisely what the Commonwealth argues it should be allowed to do in this case. It has candidly agreed that "the Grand Jury was not involved in an ongoing investigation into the death of [the victim]," and that the "purpose of the summons for [the witness] was ... to seek an order of immunity." Such a procedure is not within the scope of G.L. c. 233, § 20C-20I.

We do not reach the question whether this court has the power to grant immunity under the authority granted by G.L. c. 211, § 3, or as part of its inherent powers. Assuming, without deciding, that such power exists, we conclude that there exists no "substantial claim of [a] violation of ... substantive rights and irremediable error" so as to entitle the Commonwealth to extraordinary relief. Schipani v. Commonwealth, 382 Mass. 685, 685, 409 N.E.2d 1300 (1980), quoting Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). ⁸

We do not decide, as the Commonwealth requests, whether the witness waived his privilege against self-incrimination by testifying previously before a different grand jury which returned indictments against the defendant. The issue of waiver is more properly to be decided by a trial judge should the witness be called to testify and should the witness assert the claim of the privilege in response to specific questions. Cf. Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 818-819, 95 L.Ed. 1118 (1951) (witness called to testify may invoke Fifth Amendment privilege based on trial judge's finding that response to specific question might tend to incriminate witness); Silverio v. Municipal Court of the City of Boston, 355 Mass. 623, 630, 247 N.E.2d 379 (police officer could not justify, based on Fifth Amendment privilege, refusal to answer superior's inquiry whether officer had claimed privilege before grand jury), cert. denied, 396 U.S. 878, 90 S.Ct. 151, 24 L.Ed.2d...