State v. Carroll

• Decision Date: 21 November 1973
• Docket Number: No. 42707,42707
• Citation: 515 P.2d 1299,83 Wn.2d 109
• Parties: STATE of Washington, Petitioner, v. Charles O. CARROLL et al., Respondents.
• Court: Washington Supreme Court

Page 109

83 Wn.2d 109

515 P.2d 1299

STATE of Washington, Petitioner, v. Charles O. CARROLL et al., Respondents.

No. 42707.

Supreme Court of Washington, En Banc.

Nov. 21, 1973.

Christopher T. Bayley, Pros. Atty., Norman K. Maleng, Seattle, for petitioner.

Carroll, Rindal & Kennedy, Joel A. C. Rindal, Rutherford, Kargianis & Austin, James S. Munn, Malcolm L. Edwards, Culp, Dwyer, Guterson & Grader, Murray B. Guterson, Walthew, Warner, Keefe, Arron, Costello & Thompson, Thomas P. Keefe, Clinton, Anderson, Fleck & Glein, James A. Andersen, Kempton, Savage & Gossard, Anthony Savage, Jr., Carney, Stephenson, Siqueland, Badley & Smith, Basil L. Badley, Seattle, for respondents.

HAMILTON, Associate Justice.

In 1971, a grand jury was convened in King County for the purpose of investigating possible bribery and corruption among police and public officials. As a result of such investigations, several indictments issued. The six defendants-respondents ¹ in the instant matter were subpoenaed to attend upon and did testify under oath before the grand jury. Each was advised, before testifying, of: (a) the purpose of the investigation, (b) their right to counsel, and (c) their right to remain silent.

Respondents were subsequently indicted. Each was charged with offenses in the nature of or offending against the laws relating to bribery or corruption. All joined in a motion to dismiss the indictments upon the basis that, pursuant to RCW 9.18.080 and RCW 10.52.090, they were respectively afforded statutory immunity from prosecution as a result of their appearance and testimony before the grand jury concerning the offenses charged. The trial court granted the motions and dismissed the indictments. The state sought review by this court.

Following a consideration of the briefs and oral arguments of counsel for the state and the respondents, this court issued an order affirming the trial court's order of dismissal. We now set forth the rationale for the order of affirmance.

The contentions of the respective parties propound three principal questions: (1) Do RCW 9.18.080 and RCW 10.52.090, the immunity statutes here involved, apply to respondents' testimony before a grand jury? (2) Must an individual testifying pursuant to such statutes first claim his privilege against self-incrimination, guaranteed by the fifth amendment to the United States Constitution, as a condition precedent to receiving the statutory immunity? (3) Do RCW 10.27.120 and RCW 10.27.130, the provisions of the 1971 Criminal Investigatory Act relating to self-incrimination in grand jury proceedings, repeal RCW 9.18.080 and RCW 10.52.090?

We answer the first question in the affirmative and the second and third questions in the negative.

We start from the premise that the privilege against self-incrimination afforded by the fifth amendment to the United States Constitution is applicable to state proceedings. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). And, that the adequacy of a state grant of immunity from prosecution must be tested against the requirements of the Fifth Amendment, which mandate that the grant of immunity be coextensive with the scope of the privilege against self-incrimination. Counselman v. Hitchcock 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

As noted in Kastigar, statutes which in certain instances provide immunity to a witness in exchange for the privilege against self-incrimination have authentic, historic, and logical roots in Anglo-American law, to the extent that they have "become part of our constitutional fabric." The court further points out that not only are there a number of federal immunity statutes extant, but also one or more such statutes are on the books of every state in the Union. 406 U.S. at 445--447, 92 S.Ct. at 1658.

Generally speaking, two forms of statutory grants of immunity have been upheld as constitutionally sufficient in scope to square with the scope of the Fifth Amendment privilege against self-incrimination. These forms have been characterized as furnishing 'transactional immunity,' I.e., immunity from criminal prosecution for any transaction, matter or thing about which a witness is compelled to testify, and 'use and derivative use immunity,' I.e., immunity from the use of the compelled testimony or any evidence derived therefrom in a subsequent criminal prosecution of the witness. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008 (1956); Kastigar v. United States, Supra.

RCW 9.18.080 and RCW 10.52.090, with which we are here concerned, were enacted as a part of this state's 1909 Criminal Code, Laws of 1909, ch. 249, §§ 78 and 39. They provide, respectively:

Every person offending against any of the provisions of law relating to bribery or corruption shall be a competent witness against another so offending and shall not be excused from giving testimony tending to criminate himself.

RCW 9.18.080.

In every case where it is provided in this act that a witness shall not be excused from giving testimony tending to criminate himself, no person shall be excused from testifying or producing any papers or documents on the ground that his testimony may tend to criminate or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to a penalty or forfeiture For or on account of any action, matter or thing concerning which he shall so testify, except for perjury or offering false evidence committed in such testimony.

(Italics ours.) RCW 10.52.090.

It is apparent from the language of RCW 9.18.080 and RCW 10.52.090 that, when applicable, the legislative intent was to withdraw the privilege against self-incrimination in criminal proceedings revolving about laws relating to bribery and corruption and to substitute in lieu of that privilege full 'transactional immunity' as distinguished from 'use and derivative use immunity.' The scope of the immunity thus afforded is broad and well within the requirements of the Fifth Amendment. Kastigar v. United States, Supra.

The state, however, argues that RCW 9.18.080 and RCW 10.52.090, do not apply to grand jury investigations. This they contend is so because: (a) the Criminal Investigatory Act of 1971, codified as RCW 10.27, is a special and separate statutory scheme relating to grand jury proceedings and is independent of the Criminal Code of 1909; and, (b) RCW 10.27.120 and RCW 10.27.130 ² restore to the witnesses contemplated under RCW 9.18.080 and RCW 10.52.090 their privilege against self-incrimination. From these premises the state then asserts that the respondents in failing to claim their Fifth Amendment privilege ³ before the grand jury voluntarily waived that privilege and thereby lost any immunity that might otherwise have been accorded them.

We cannot agree with the state's contentions. Grand juries, as investigatory and accusatory bodies, are of early origin in the common law of England and of this country. 38 Am.Jur.2d Grand Jury §§ 1 and 2 (1968); 38 C.J.S. Grand Juries § 1 (1943). They have been deemed to be and looked upon as a constituent part of the court calling them into session, and as performing an important function in the administration of the criminal law. Hitzelberger v. State, 173 Md. 435, 196 A. 288 (1938); State ex rel. Adami v. Lewis and Clark County, 124 Mont. 282, 220 P.2d 1052 (1950); State v. Haines, 18 N.J. 550, 115 A.2d 24 (1955); People v. Polk, 21 Ill.2d 594, 174 N.E.2d 393 (1961). Indeed, RCW 10.27.020(6) defines a grand jury as a part of the impaneling court, and specifies the function of a grand jury to be to hear, examine, and investigate evidence concerning criminal activity and corruption and to take action upon such evidence. And, RCW 10.27.100 requires an impaneled grand jury to inquire into all indictable offenses within its jurisdiction as are brought to its attention. A grand jury thus becomes an integral part in the criminal process, and the proceedings before it may fairly be characterized as 'criminal proceedings,' inhering in which rest Fifth Amendment privileges as well as prevailing immunity provisions.

To carry out its inquisitorial and accusatorial functions, as imposed upon it by the common law and the statutes, a grand jury must of necessity look to and rely upon the laws relating to crime as such have been enacted by the legislature. In so doing, it cannot close its eyes to portions of the criminal laws relevant to the subject matter of its investigations, and proceed as though such relevant laws did not exist.

The legislature in enacting the Criminal Investigatory Act of 1971 specifically repealed some 30 statutes. It did not repeal RCW 9.18.080 or RCW 10.52.090. RCW 10.27.120 and RCW 10.27.130 provide a procedure whereby, under ordinary circumstances, transactional immunity may be afforded a witness entitled to claim the Fifth Amendment privilege against self-incrimination. The two sections, as well as the Criminal Investigatory Act as a whole, do not purport to repeal, modify or operate in conflict with RCW 9.18.080 or RCW 10.52.090. The two statutory schemes can readily stand together and function in harmony with one another. Repeals by implication are not favored and will not be found to exist where earlier and later statutes may logically stand side by side and be held valid. State ex rel. Washington Mut. Sav. Bank v. Bellingham, 8 Wash.2d 233, 111 P.2d 781 (1941); Copeland Lumber Co. v. Wilkins, 75 Wash.2d 940, 454 P.2d 821 (1969).

We hold, therefore, that RCW 9.18.080 and RCW 10.20.090 applied to respondents and their testimony before the grand jury.

The state, however, further argues that respondents are not entitled to the immunity afforded by RCW 9.18.080 and RCW 10.52.090 ...