State v. Falcone
| Decision Date | 03 March 1972 |
| Docket Number | No. 42277,42277 |
| Citation | 195 N.W.2d 572,292 Minn. 365 |
| Parties | STATE of Minnesota, Respondent, v. Henry S. FALCONE, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Minn.St. c. 628, governing our statutory scheme providing for secrecy of grand jury proceedings, is not violated by admission at trial of testimony of a member of the county attorney's staff concerning inculpatory admissions made by defendant in his appearance before the grand jury where defendant, prior to such appearance, has voluntarily waived his constitutional right to immunity against self-incrimination with knowledge that not only may his testimony be used to indict him but that it may also be admitted at his trial brought pursuant to such indictment.
Affirmed.
C. Paul Jones, Public Defender, Reese C. Johnson, Sp. Asst. Public Defender, Doris O. Huspeni, Minneapolis, for appellant.
Warren R. Spannaus, Atty. Gen., St. Paul, Keith Brownell, County Atty., Curtis H. Foster, Asst. County Atty., Duluth, for respondent.
Heard before KNUTSON, C.J., and OTIS, ROGOSHESKE, and PETERSON, JJ.
The defendant, having executed a written waiver of immunity from self-incrimination, testified before a grand jury which subsequently indicted him on several charges, including one count for theft of $150 in violation of Minn.St. 609.52, subd 2(3). 1 Defendant was acquitted on all counts except the count for theft of $150, on which he was found guilty.
At defendant's trial, the assistant county attorney, who had been present during defendant's appearances before the grand jury, was permitted to testify as to defendant's inculpatory admissions before the grand jury. The jury's verdict of guilt is substantially supported by this unrefuted testimony, and defendant in this appeal asks us to grant a new trial upon the ground that the testimony should have been excluded because its admission violated our statutory scheme of secrecy governing grand jury proceedings. We disagree and affirm.
Defendant was superintendent of the water department of the city of Chisholm during 1967 and 1968. In 1968, a grand jury was formed to interview several witnesses concerning the conduct of officials of the city of Chisholm, and the defendant was summoned to appear. Before testifying, defendant executed a written waiver of his Fifth Amendment right to immunity against self-incrimination, after which he made three separate appearances before the grand jury in November and December 1968. The grand jury later issued its indictments against defendant.
The state informed defendant's counsel that it would introduce testimony of the assistant county attorney as to defendant's inculpatory admissions before the grand jury. At a pretrial Rasmussen hearing and again at trial, objection was made to the admission of this evidence on the ground that its admission would violate the letter and spirit of Minn.St. c. 628, which protects the secrecy of the grand jury proceedings. These objections were overruled, and the assistant county attorney testified at trial that defendant, at his third appearance before the grand jury, admitted having altered work records of the Chisholm Water Department to show an employee on vacation when in fact the employee was working on the private cabin of another city official; that defendant admitted knowing that the employee was not performing any services for the water department and that the employee was wrongly compensated from public funds for his work on the cabin; and that defendant also admitted having given false testimony concerning this matter during his two previous appearances before the grand jury. Defendant did not testify at trial, nor were any members of the grand jury called to refute the testimony of the assistant county attorney despite the court's offer to defense counsel to permit interrogation of grand jurors as to their recollection of defendant's testimony.
The crucial issue raised is whether our statutory veil of secrecy governing grand jury proceedings is violated if a member of the county attorney's staff is permitted to testify at trial as to admissions made by the potential defendant before the grand jury after he has voluntarily executed a written waiver of his right to immunity against self-incrimination. Where the waiver is voluntarily and knowingly made and there is no hint of impropriety in obtaining it, we hold that the court does not err in admitting the testimony.
It is generally acknowledged that the grand jury has its origin in the English common law. It was introduced into England by the Normans and in its primitive form was merely a body of neighbors who were summoned, given an oath, and requested to render a true answer to a question propounded by the authorities. During the reign of Henry II (1154--1189), it became an arm of the Crown and began to evolve as a prosecutory agency charged with the duty of ferreting out persons suspected of committing certain offenses. By the 1350's, the jury was prohibited from sitting as both the indicting jury and the trial jury. In 1368, a distinct body called 'le graunde inquest' emerged, which was an accusatory body empowered to lodge criminal charges with or without the aid of a private accuser. This body adopted the procedure of hearing testimony in private, which proved to be a significant safeguard against the ever-present abuses by the Crown. It was this common-law tradition of secrecy, initially stemming from a need to protect the grand jurors and private citizens from oppression of the state, which was the underpinning of our grand jury procedure as it evolved early in American jurisprudence. 2
The fear of state coercion has lessened since these earlier times, but the overriding concern for the protection of jurors to promote their investigatory function lingers. 3 Today, grand jury secrecy is arguably justified on the grounds that the jury's deliberations should not be restricted by the apprehension that persons subject to indictment, or their cohorts, may be given the opportunity to importune the jurors; that witnesses who have information are thereby encouraged to give testimony free of tampering; that an innocent suspect who is exonerated is afforded protection against disclosure of the fact that he has been groundlessly accused or under investigation; and that prosecution authorities are protected against the risk that a person indicted might flee the jurisdiction before his apprehension. 4
While the secrecy of the grand jury proceedings remains zealously protected by statute in our state, 5 the statutory scheme, virtually unchanged since its inception in 1851, is not manifestly at variance with the enumerated reasons for secrecy. The clear emphasis of the statute is that the secrecy veil is particularly intended to protect the jurors from disclosure of statements made by any member during the scope of their investigation or during their deliberations. 6
Although there are currently many proposals to liberalize the outmoded concept of secrecy of grand jury proceedings, particularly in permitting the defense counsel to discover grand jury minutes and documents to prepare for trial, 8 our decision here is not controlled by those proposals but rather by the historic posture of grand jury secrecy, which never contemplated affording protection to an indicted defendant. 9 Therefore, as most jurisdictions have ruled when faced with the issue presented, the prosecuting attorney may testify at trial as to defendant's admissions before the grand jury where defendant is found to have waived his right against self-incrimination prior to testifying. 10 And several jurisdictions, in the face of statutory language similar to ours and restricting the use of a grand juror's testimony to impeachment or to situations where perjury is at issue, have allowed a grand juror to testify as to what the defendant admitted on the ground that furtherance of justice and protection of the public transcends grand jury secrecy at the trial stage of a criminal proceeding. 11
By this decision we do not mean to encourage prosecution of a criminal offense which is substantially dependent upon testimony of the prosecutor to obtain a conviction. 12 Prosecutors enjoy the special privilege of having access to the grand jury and giving it assistance, short of joining in its deliberations. In prosecutions based on grand jury indictments, the prosecutor is necessarily a most important source of aid and guidance to the grand jury, and he exercises tremendous influence over the handling and direction of its entire investigatory process. 13 Approaching but unlike this case, the prosecutor's sacrosanct duty as an investigatory aid and legal advisor to the grand jury is tainted and our statutory scheme is violated when he uses a mechanical tape recorder to record a part of its proceeding. State v. Mastrian, 285 Minn. 51, 171 N.W.2d 695 (1969), certiorari denied, 397 U.S. 1049, 90 S.Ct. 1381, 25 L.Ed.2d 662 (1970). Under such circumstances, knowledge by grand jurors and witnesses that the proceedings are being recorded on tape could very well, despite our express statutory requirements of secrecy as revealed by the judge of the district court in his instructions to the grand jury, inhibit the jurors' questioning of witnesses; create fear of the possibility that the identify of innocent parties under investigation may be disclosed to the public; or provide an indicted defendant with an early opportunity (by employing corrupt tactics) to discover and tamper with witnesses appearing before the grand jury.
Recently the prosecutor's function before the grand jury has been under scrutiny, particularly in those instances where the witness from whom testimony is sought is a potential defendant. In such instances, due regard for the privilege against self-incrimination and the right to counsel compel the prosecutor to advise the witness, before seeing his...
To continue reading
Request your trial
-
State v. Murphy
...state constitutional privilege against compelled self-incrimination is absolute when claimed, but may be waived. See State v. Falcone, 292 Minn. 365, 195 N.W.2d 572 (1972); State v. Iosue, 220 Minn. 283, 19 N.W.2d 735 (1945). This privilege may be waived orally, in writing, or by conduct. S......
-
In re Contempt of Ecklund
...privilege. Rogers v. United States, 340 U.S. 367, 372-73, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951); see also State v. Falcone, 292 Minn. 365, 371, 195 N.W.2d 572, 578 (1972). The district court's conclusion that appellant waived her Fifth Amendment privilege, however, is contrary to prevailin......
-
State v. Inthavong
...grand jury may at all reasonable times ask the advice of the court, or of the county attorney * * * "). See also State v. Falcone, 292 Minn. 365, 372, 195 N.W.2d 572, 577 (1972). ...
-
State v. Berry
...1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The law on privilege against self-incrimination was restated in State v. Falcone, 292 Minn. 365, 371, note 10, 195 N.W.2d 572, 576 (1972), when this court '* * * A defendant who is called as a witness before the grand jury and whose testimony sustain......