State ex rel. Newman v. Anderson, 42079.

• Decision Date: 30 September 1980
• Docket Number: No. 42079.,42079.
• Citation: 607 S.W.2d 445
• Parties: STATE of Missouri ex rel. Joseph D. NEWMAN, Relator, v. Honorable John ANDERSON, Judge of Division III of the Circuit Court of Jefferson County, Respondent.
• Court: Missouri Court of Appeals

607 S.W.2d 445

STATE of Missouri ex rel. Joseph D. NEWMAN, Relator, v. Honorable John ANDERSON, Judge of Division III of the Circuit Court of Jefferson County, Respondent.

No. 42079.

Missouri Court of Appeals, Eastern District, Division Four.

September 30, 1980.

Susman, Schermer, Rimmel & Parker by Morton I. Golder and Barbara L. Beran, St. Louis, for relator.

Dana A. Hockensmith, Hillsboro, for respondent.

SATZ, Judge.

Relator, Joseph D. Newman, sought a writ of prohibition to prevent the respondent circuit judge from compelling him to answer certain questions in an examination of judgment debtor proceeding. We issued our preliminary writ and now, after briefing and oral argument, we make our writ absolute.

The State Bank of DeSoto (bank) obtained a money judgment against relator. Subsequently, in aid of execution of the judgment, the bank secured a court order for relator to appear for an examination of judgment debtor. At the outset of the examination, relator invoked his privilege against self-incrimination guaranteed by § 19, Article I of the Missouri Constitution and the Fifth Amendment of the United States Constitution and refused to answer certain of the bank's questions. In particular, relator refused to answer the question:

"Is there any real property of record title in your name in the State of Missouri?"

The bank requested the respondent judge to compel relator to answer and pointed out that the question did not require relator to answer whether he owned any real property but rather whether title to any property was recorded in his name. The bank also noted that this title information would be a public record and, therefore, according to the bank's reasoning, the answer to the question could not possibly incriminate relator. In response to the bank's argument, relator's counsel indicated the answer might incriminate relator because of "possible fraud". Apparently, the respondent judge was persuaded by the bank's reasoning, and he directed relator to answer the question or be committed to jail. Relator's counsel indicated he might want to seek a writ to stay the respondent judge's order. In response, the judge stated that relator would be committed to jail and, then, relator's counsel could process his writ. Relator's counsel replied that perhaps other questions could be asked and "maybe we can resolve this". The bank then asked relator to disclose, and he did disclose, those trusts for which he was a "record trustee in the State of Missouri". After these disclosures were made, the bank again asked relator:

"Is there any real property of record title in your name in the State of Missouri?"

Relator answered:

"Your Honor, I honestly do not know."

The bank requested a continuance and also requested an order to compel relator to use the time during the continuance to determine the "correct answer" to the bank's question. In addition, the bank's counsel stated:

"And, I would further like to supplement or amend the question to make it clear that we're asking-when I say `title, record title in his name', I'm referring not only to title which may be solely in his name but title which may be in his name as joint tenants or tenants in common or tenants by entirety with other persons."

Relator again invoked his privilege against self-incrimination and refused to answer the question. The respondent judge continued the examination, ordered the relator to answer the question on or before the date of the next hearing and observed that relator could seek a writ during the continuance, if he wished. Relator then sought the present writ.

Our courts have long recognized that the privilege against self-incrimination is available to a judgment debtor in an examination of judgment debtor proceeding. State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. banc 1959); State ex rel. Howard v. Allison, 431 S.W.2d 233, 235 (Mo. App.1968). Since this examination is a non-criminal proceeding, the debtor has no blanket privilege against self-incrimination. The debtor must specifically claim the privilege on a particular question, and the court must determine whether the specific claim is justified. This determination creates a perplexing problem. The privilege not only extends to answers which would in themselves support a conviction of a crime but likewise embraces those answers which would simply furnish a link in the chain of evidence needed to prosecute the debtor for a crime. State ex rel. Coloia v. Weinstein, 525 S.W.2d 779, 780 (Mo.App. 1979); State ex rel. Howard v. Allison, supra at 237. To require the debtor to explain in detail why his answer might be a link in a chain of incriminating evidence would, in effect, require the debtor to surrender the very protection which the privilege is designed to guarantee. On the other hand, to permit the debtor to remain silent upon the mere declaration that his answer might tend to incriminate him, obviously, might subject the privilege to unwarranted abuse. In Cantor v. Saitz, 562 S.W.2d 774 (Mo.App.1978), we discussed the various attempts to develop rules and guidelines to resolve this dilemma. One rule-the basic rule-remained constant: "The court cannot compel the debtor to answer unless it would be impossible for the debtor to incriminate himself." Cantor v. Saitz, supra at 778-779; see, e.g., Ex parte Gauss, 122 S.W. 741, 742 (Mo.1909).

In practice, the application of this rule quite often depends upon the setting or context in which a particular question is asked. If an otherwise innocuous question is asked in a setting or context which suggests a real hazard of incrimination, the court obviously cannot say, as a matter of law, that incrimination is impossible and, therefore, the court cannot compel the debtor to answer the question nor sensibly compel him to explain the self-evident reasons for invoking his privilege against self-incrimination. State ex rel. Strodtman v. Haid, 30 S.W.2d 466, 467 (Mo.1930). See also Presta v. Owsley, 345 S.W.2d 649 (Mo. 1901). However, if the question remains innocuous even when viewed in its setting and context, the court can require the debtor "to describe, in general terms, a rational basis upon which his answers could conceivably incriminate him". Cantor v. Saitz, supra at 778. If a rational basis for incrimination is provided, the court obviously cannot say, as a matter of law, that incrimination is impossible.¹ Cantor v. Saitz, supra.

Relator argues on appeal, as he did at trial, that a rational basis for his silence was demonstrated by his counsel's statement that his answer would expose him to possible "criminal penalties for fraud". On appeal, relator states the crime contemplated by his assertion of fraud was the possible concealment of his assets from his creditors.² In addition, relator now suggests other possible reasons his answer would tend to incriminate him. The reasons range from "income tax evasion" to "forgery".³

Respondent first counters that in Cantor v. Saitz, supra, the debtor was required to answer a question having the same legal effect as the questions in issue here. More specifically, respondent points to the question in Cantor in which the debtor was asked whether there were any legal actions pending against him. That question, respondent contends, has the same legal effect as the bank's present question whether relator held record title to property, because "both questions relate to matters of public record" and both "may be answered `yes' or `no'", without requiring the debtor "to state supporting facts or conclusions". Since the two questions have the same legal effect, respondent reasons, relator here, like the debtor in Cantor, should be required to answer. We disagree.

Respondent interprets and misapplies the ruling in Cantor v. Saitz, supra. In Cantor, we did not require the debtor to answer whether any legal actions were pending against him. Rather, we considered that question to be innocuous, and, as a condition to the debtor remaining silent, we required him to rationally explain, in general terms, the possible incrimination perceived by him. Cantor v. Saitz, supra at 779. Furthermore, the privilege against self-incrimination protects a debtor from personally supplying the possible incriminating evidence. Thus, contrary to respondent's bald conclusion, the fact that the evidence sought may be part of the public record and may be supplied by a simple "yes" or "no" does not obviate relator's protection against being compelled to provide this information by his testimony.

Respondent also argues that relator's mere assertion of "possible fraud", without further explanation, does not provide a rational basis for possible incrimination. Under the present status of the law, we cannot agree.

An examination of a judgment debtor may be initiated on either of two grounds: a showing there is reason to believe the debtor (1) "has property subject to execution" or (2) "has conveyed or attempted to convey his property, with a design to defraud, hinder or delay his creditors". Section 513.385 RSMo 1978. The latter ground, fraudulent conveyance, was a misdemeanor under former § 561.550 RSMo 1969. Thus, when an examination of a judgment debtor was initiated on this ground, the setting was a reasonable showing of fraudulent conveyance and, in this setting, questions put to the debtor about his ownership of property suggested a real hazard of self-incrimination. State ex rel. Strodtman v. Haid, 30 S.W.2d 466, 467 (Mo.1930). Admittedly, in the instant case, respondent did not initiate the examination on the ground of fraudulent conveyance but, instead, initiated it on the ground that relator had property subject to execution. Arguably, there is nothing in this latter setting which suggests that the bank's question about property titled in relator's name subjected relator to a real hazard of incrimination. The record discloses nothing to link relator with any criminal investigation or proceeding. Relator...