Sandrelli v. Com.

Decision Date20 February 1961
Parties, 88 A.L.R.2d 450 Anthony SANDRELLI v. COMMONWEALTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Manuel Katz, Boston, for petitioner.

John T. McNaughton, Cambridge (Richard S. Kelley, Asst. Dist. Atty., Boston, with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

On the morning of November 12, 1959, the bullet-riddled body of one Joseph DeMarco was found in a dump in Everett. Shortly thereafter, the district attorney for the Northern District commenced an investigation of the killing, and summoned several persons, including the petitioner, to appear before the grand jury. On November 25, 1959, the petitioner came before the grand jury, and, without invoking any privilege, refused to answer any questions other than to state his name and address. He was then taken before a judge of the Superior Court, who instructed him as to his rights and duties as a witness, including the privilege against self incrimination.

On November 30, 1959, the petitioner went before the grand jury again and refused to answer certain questions 1 on the ground that they would incriminate him. On December 9, 1959, the grand jury presented to another judge of the Superior Court, who will be referred to hereinafter as the judge, a petition requesting him to direct the petitioner to answer these questions and, in the event that he persisted in his refusal, to issue an order to him to show cause why he should not be adjudged guilty of criminal contempt. The judge ordered the petitioner to answer the questions. The petitioner, however, went before the grand jury again and refused to answer all of the questions, except two. 2

The judge thereupon issued an order, returnable on December 14, 1959, for the petitioner to show cause why he should not be adjudged in contempt. At the hearing on December 14, the petitioner moved that the transcript of the hearing before the first judge held on November 25, 1959, be 'made part of this proceeding' but the motion was denied. After proof, through a stenographer, of the petitioner's refusal to answer the questions put to him before the grand jury, the Commonwealth rested.

The petitioner called as a witness the district attorney, who testified that on December 7, 1959, he appeared on a radio broadcast before a panel of 'newscasters' and answered questions put to him by the panelists concerning the grand jury investigations of the DeMarco slaying. He was then asked a series of questions as to whether on that occasion he had made certain statements about the case. All of these questions were excluded, subject to the petitioner's exceptions. The petitioner in each instance attempted to make an offer of proof but was not permitted to do so. To each refusal he excepted. Questions were also put by the petitioner to an assistant district attorney whether he had made public statements concerning the true ownership of the Coliseum Restaurant, and the whereabouts of Carolyn Diabo and 'Mickey' Taylor on the night of November 11 or the early morning of November 12. These questions and attempted offers of proof were disallowed, subject to the petitioner's exceptions. Questions to the secretary of the Boston licensing board as to who were, according to the board's records, the officers and stockholders of the Coliseum Restaurant, and as to complaints made with respect to the liquor license, were also excluded subject to the petitioner's exceptions. Offers of proof touching these questions, however, were permitted. The petitioner unsuccessfully attempted to introduce the following: newspapers containing articles discussing the case and the investigation; a tape recording of the district attorney's radio broadcast on December 7, 1959; and the petitioenr's record from the office of the commissioner of probation. The judge, nevertheless, examined the record and stated that he was 'taking notice' of it and would have its contents in mind as facts which he would 'consider in determining the issue.'

The judge found the petitioner guilty of contempt and imposed a sentence of one year in the county jail. Numerous requests for rulings were presented, some of which were denied, subject to the petitioenr's exceptions.

Contending that, for various reasons, the judgment of contempt was erroneous, the petitioner brings this petition for a writ of error. At the hearing before the single justice the petitioner offered the following evidence: (1) a transcript of the evidence in the Superior Court; (2) a collection of excerpts from various newspapers; (3) a typewritten transcription of a tape recording of a radio broadcast on December 7, 1959, in which the district attorney for the Northern District was interviewed by certain members of the press; (4) photostats of the petitioner's probation record together with a pamphlet explaining the abbreviations used in the record; and (5) a transcript of the proceedings before the first judge on November 25, 1959. The single justice admitted all of this evidence de bene and reported the case without decision to the full court to 'determine whether the foregoing evidence was admissible, in whole or in part, and whether, on the basis of the record, the stipulated facts, and such evidence as the full court may deem to be admissible, there was any error in the judgment of the court below.'

1. The petitioner's thirteenth request asked for a ruling that the 'court cannot adjudge the accused in contempt unless it is perfectly clear from a careful consideration of the questions propounded, in the light of the circumstances disclosed, that they could have been answered with entire impunity.' The judge denied the request and ruled that the 'court must see from the circumstances of the case and the nature of the evidence which the witness is called to give that there is reasoanble ground to apprehend danger to the witness from his being compelled to answer' and that there must be 'real or substantial danger that the answers * * * would lead to a charge of crime or to the securing of evidence to support a charge of crime' (Emphasis supplied).

The ruling of the judge was in accordance with the principles set forth in Commonwealth v. Joyce, 326 Mass. 751, 97 N.E.2d 192, where the subject was fully discussed with ample citation of the anthorities. Unless we are to overrule or modify our holding in the Joyce case, the challenged ruling must be upheld. The rule enunciated in the Joyce case was the same as that approved by the Supreme Court of the United States in Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198, decided in 1917. Indeed, the Joyce opinion relied on the Mason case to a considerable extent and quoted from it with approval. In asking us to rexamine the Joyce case, the petitioner directs our attention to Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, decided in 1951, a few months after our decision in the Joyce case. In the Hoffman case it was held that the witness invoking the privilege cannot be compelled to answer unless it is "perfectly clear [to the court], from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate' (341 U.S. at page 488, 71 S.Ct. at page 819). Although the court in the Hoffman case did not purport to modify or overrule the Mason case (on the contrary, that case was cited with apparent approval) there can be little doubt that the rule set forth in the Mason case has been substantially modified. Confirmation for this view may be found in the per curiam reversals of Greenberg v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332, and of Singleton v. United States, 343 U.S. 944, 72 S.Ct. 1041, 96 L.Ed. 1349, and in decisions by courts of appeals. See United States v. Coffey, 3 Cir., 198 F.2d 438; Kiewel v. United States, 8 Cir., 204 F.2d 1, 8, concurring opinion of Sanborn, J.; dissenting opinion of Lumbard, J., in United States v. Courtney, 2 Cir., 236 F.2d 921. See also 53 Col.L.Rev. 275.

This court has always carefully protected the rights of those invoking the privilege against self incrimination. See Emery's Case, 107 Mass. 172; Commonwealth v. Prince, 313 Mass. 223, 46 N.E.2d 755, 152 A.L.R. 571; Jones v. Commonwealth, 327 Mass. 491, 99 N.E.2d 456. And an attempt to weaken the privilege by legislation has met with our disapproval. See Opinion of the Justices, 300 Mass. 620, 15 N.E.2d 662. We shall continue to preserve this privilege so long as it is part of our law. But, with due deference to the Supreme Court of the United States, we decline to adopt the 'perfectly clear' rule of the Hoffman case. That rule is a departure from the prior decisions of that court and from what has generally been regarded by most courts and commentators as the correct rule. That rule was stated one hundred years ago in the leading case of The Queen v. Boyes, 1 B. & S. 311, in which Cockburn, C. J., said, at pages 329-330, '[T]o entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. * * * [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things--not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.' This language was quoted with approval by a unanimous court in Mason v. United States, 244 U.S. 362, 365-366, 37 S.Ct. 621. The 'perfectly clear' rule of the Hoffman case, as interpreted by later ...

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