Pixley v. Com.

• Decision Date: 19 May 2009
• Docket Number: SJC-10243.
• Citation: 453 Mass. 827,906 N.E.2d 320
• Parties: Marcus PIXLEY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

906 N.E.2d 320

453 Mass. 827

Marcus PIXLEY v. COMMONWEALTH.

SJC-10243.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 2009.

Decided May 19, 2009.

Jane E. Ross for the plaintiff.

Joseph M. Ditkoff, Assistant District Attorney (Mark D. Zanini, Assistant District Attorney, with him) for the Commonwealth.

David M. Skeels, Cambridge, Committee for Public Counsel Services, for Committee for Public Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.

GANTS, J.

At his jury trial on narcotics charges in December, 2005, the defendant sought to call a witness in his defense, who informed the court, through counsel, that he intended to assert his privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The trial judge held an in camera hearing pursuant to Commonwealth v. Martin, 423 Mass. 496, 668 N.E.2d 825 (1996) (Martin hearing), to determine whether the witness had a valid Fifth Amendment privilege, and found that he did. The witness thereupon refused to testify on the defendant's behalf. Having been convicted of the charges against him, the defendant filed an appeal in the Appeals Court from the judgments of conviction and, as part of his appeal, seeks to challenge the judge's finding. The transcript of what was said during the Martin hearing has been impounded and transferred to the Appeals Court, and proceedings there have been stayed pending resolution of this appeal.

The issue presented is whether defense counsel is entitled to full disclosure of the impounded transcript, to share its contents with the defendant, and to refer to its contents in the defendant's appellate brief before the Appeals Court. The case is before us by way of the defendant's appeal from the judgment by the single justice in the county court denying his petition pursuant to G.L. c. 211, § 3. We conclude that neither the defendant nor defense counsel is entitled to disclosure of the impounded transcript; only the Justices of the Appeals Court may examine its contents, if necessary, to decide the merits of the defendant's appeal. Accordingly, we affirm the denial of the defendant's petition.

Background. The evidence at trial reflected that, on March 2, 2005, two undercover law enforcement officers (an Everett police officer and a Middlesex County deputy sheriff) entered a McDonald's restaurant in Boston. The defendant and Dwayne Gillum entered the restaurant, and Gillum told the undercover officers to sit down at a small table. Moments later, the defendant sat down at a table behind them. One officer told the defendant that he had forty dollars, and the defendant responded, "My boy will hook you up." The defendant walked over to Gillum, and both men returned together and sat down. The defendant said, "Give me the money." The officer gave two twenty dollar bills (with prerecorded serial numbers) to the defendant, who handed them to Gillum. Gillum in turn gave a plastic bag to the defendant, who handed it to the officer. The defendant and Gillum left the restaurant in different directions and were arrested by Boston police officers shortly thereafter. In his right hand, Gillum still held the forty dollars given to him by one of the undercover officers. The plastic bag was later determined to contain two pieces of "crack" cocaine.

A Suffolk County grand jury returned indictments against the defendant charging distribution of cocaine (second offense) in violation of G.L. c. 94C, § 32A (d); being a habitual criminal in violation of G.L. c. 279, § 25; selling drugs in a school zone in violation of G.L. c. 94C, § 32J; and conspiracy to violate the drug laws in violation of G.L. c. 94C, § 40. The same grand jury returned indictments against Gillum charging violations of G.L. c. 94C, § 32A (d) (two indictments); G.L. c. 94C, § 32J (two indictments); and G.L. c. 94C, § 40.

Gillum entered guilty pleas to two charges of distribution of cocaine, to one charge of distributing in a school zone, and to the charge of conspiracy.¹ He was sentenced on the first three of his convictions; his conviction of conspiracy was placed on file with his consent without the imposition of sentence.

The defendant was tried by a jury on the drug distribution and school zone charges and summonsed Gillum to testify as a defense witness. The judge appointed counsel to represent Gillum in his capacity as a witness. On the second day of trial, Gillum's counsel informed the court that Gillum would invoke his privilege against compulsory self-incrimination. On the request of Gillum's counsel, the judge held an in camera Martin hearing. At the conclusion of the hearing, the judge stated that she was satisfied that Gillum had a valid Fifth Amendment privilege. The judge considered whether Gillum could testify on a question-by-question basis to permit the defendant to present some of his testimony to the jury. She ultimately concluded, however, that if she instructed Gillum to answer certain questions on direct examination and if the Commonwealth attempted to impeach him with questions concerning the indictments to which he had entered guilty pleas, he would have a valid Fifth Amendment privilege as to those questions on cross-examination and his entire testimony would need to be struck, resulting in a mistrial.

The judge then asked the prosecutor to summarize his anticipated cross-examination of Gillum. The prosecutor proffered that Gillum had various other criminal charges pending against him involving drug transactions in which Gillum allegedly used an accomplice. He said he would explore on cross-examination "how [Gillum] deals drugs, how he uses other people [to distance himself] from the transactions, from prosecution and arrest; how [the defendant] may have played into that, not only in the March occasion on trial but other occasions." The judge concluded, "I think if any of that was gotten into (and cross-examination is fairly broad, wide latitude), I'd have to strike all of his testimony because he certainly would have a Fifth Amendment privilege with respect to those kinds of questions." The judge then excused Gillum as a witness and noted the defendant's objection.

The defendant, the only person to testify for the defense, told the jury that he never went into the restaurant on March 2, 2005. The jury, who as part of the Commonwealth's case had been shown videotapes of the entire transaction recorded by the restaurant's security cameras that day, convicted the defendant of both charges against him. The defendant thereafter waived his right to a jury trial on the second offense portion of the distribution charge and on the charge of being a habitual criminal. Following a bench trial, the judge returned guilty verdicts against the defendant on the charges remaining against him.²

Represented by new counsel, the defendant filed an appeal in the Appeals Court from the judgments of conviction. As has been indicated, the in camera Martin hearing had been transcribed but was impounded and, therefore, was omitted from the copies of the trial transcript given to the parties. On February 29, 2008, the defendant filed a motion for access to the transcript of the Martin hearing. A different judge in the Superior Court allowed the defendant's appellate counsel to read the impounded transcript but forbade her from taking notes or making copies. The judge stated that if, after such review, counsel determined that there was an appellate issue, the judge would then consider a request for further access.³

After reviewing the impounded Martin hearing transcript, the defendant's appellate counsel determined that there was an appellate issue regarding the judge's Fifth Amendment ruling and filed two motions. The first, to transfer the impounded transcript to the Appeals Court, was allowed by a third judge in the Superior Court. The second, for permission to copy the impounded transcript, share its contents with the defendant, and disclose it in an appellate brief (which also would be impounded⁴), was the subject of a hearing held by that judge. At the hearing, an investigator for the Suffolk County district attorney's office informed the judge that Gillum had been located in Georgia, where he now lived, and had told the investigator that he did not object to defendant's appellate counsel gaining access to what Gillum had revealed in confidence during the Martin hearing.⁵ After the hearing, the judge denied the defendant's motion without prejudice, observing that the motion "raises serious constitutional issues which have not been addressed by the appellate courts in Massachusetts."

The defendant filed a G.L. c. 211, § 3, petition seeking the relief sought in the second motion filed in the Superior Court. The single justice denied the petition without a hearing, declaring that the issues raised by the defendant "can be effectively remedied, if necessary, under the ordinary process of appellate review." The defendant now appeals from the single justice's denial of his petition seeking further access to the impounded Martin hearing transcript.

Discussion. We agree with the single justice that the issue presented by the defendant's interlocutory request for relief could be resolved by the Appeals Court during the ordinary course of appellate review. We take this opportunity to elaborate on the procedure to be followed in the Appeals Court, because the defendant's petition presents a constitutional question of first impression, and the parties have fully briefed and argued the issue presented. We now address the concerns raised in the defendant's petition.

The proscription of the Fifth Amendment that "[n]o person ... shall be compelled in any criminal case to be a witness against himself" may be invoked whenever a witness reasonably believes that the testimony could be used in a criminal prosecution...