State v. Ott

• Court: Arizona Court of Appeals
• Writing for the Court: McGREGOR; FIDEL, P.J., and LANKFORD
• Citation: State v. Ott, 167 Ariz. 420, 808 P.2d 305 (Ariz. App. 1990)
• Decision Date: 18 October 1990
• Docket Number: No. 1,CA-CV,1
• Parties: STATE of Arizona, Plaintiff-Appellee, v. Calvin Duane OTT, Defendant-Appellant. 89-250.

Page 305

808 P.2d 305

167 Ariz. 420

STATE of Arizona, Plaintiff-Appellee, v. Calvin Duane OTT, Defendant-Appellant.

No. 1 CA-CV 89-250.

Court of Appeals of Arizona Division 1, Department E.

Oct. 18, 1990.

Review Denied April 23, 1991.

[167 Ariz. 423] John Verkamp, Coconino County Atty. by Richard S. Vihel, Deputy County Atty., Flagstaff, and Robert K. Corbin, Atty. Gen. by Cameron H. Holmes, Asst. Chief Counsel, and Daniel J. Kiley, Asst. Atty. Gen., and Pamela G. Wiens, Phoenix, for plaintiff-appellee.

Budoff & Ross, P.C. by Marc Budoff, and Michael V. Black and Tracey Westerhausen, Phoenix, for defendant-appellant.

OPINION

McGREGOR, Judge.

Defendant/appellant Calvin Duane Ott (Ott) appeals from summary judgment in favor of the state in a civil racketeering action. The issues on appeal are whether the trial court erred in ordering Ott to respond to requests for admission, over Ott's assertion of his privilege against self-incrimination under the fifth amendment of the United States Constitution; whether the court abused its discretion in denying Ott's application for a stay pending the outcome of the criminal proceedings against him; whether the court erred in granting summary judgment in favor of the state; and whether the court erred in awarding the state interest on the judgment.

I.

Ott was indicted on two criminal counts involving the alleged sale and distribution of cocaine. While the criminal case was pending, the Coconino County Attorney filed a civil racketeering action against Ott. The civil action, based on the same conduct that was the subject of the criminal indictment, sought forfeiture to the state of property allegedly worth more than $1.8 million. See A.R.S. §§ 13-2314.D.6 and -4301. With the complaint, the state served nonuniform interrogatories and requests for admission. See Rules 33 and 36, Arizona Rules of Civil Procedure.

Parroting the language of the criminal indictment, the requests for admission required Ott to admit or deny facts central to his alleged criminal activities. ¹ Ott initially refused to respond to the requests for admission on the ground that answering them would require him to incriminate himself in violation of the fifth amendment of the United States Constitution. U.S. Const. amend. V. The state, seeking to compel a response, argued that the fifth amendment privilege applies only to criminal actions and specifically does not apply to requests for admission. The trial court ordered that it would deem admitted any discovery not fully and completely answered within 30 days.

Ott responded to the requests for admission by stating:

The Defendant denies each of the Plaintiff's twenty-one Requests for Admission and such denial should not be deemed as a waiver of his Fifth Amendment privilege in this proceeding or any other.

Alleging that Ott's response was insufficient, the state requested the court to deem admitted the matters contained in the requests for admission. Relying upon the requests for admission and upon affidavits of persons claiming to have personal knowledge of Ott's alleged criminal activities, the state also moved for summary judgment. Ott opposed the motion for summary judgment and sought a stay of the civil action pending resolution of the criminal proceedings.

The trial court denied Ott's motion for stay, determined that Ott's responses to the requests for admission were inadequate, and deemed the requests admitted. After concluding that no material issues of fact remained, the court granted the state's motion for summary judgment against Ott in the amount of $1,871,100.00. The court also awarded the state interest from the date of judgment.

Ott filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1 and -2101.B.

II.

Our initial inquiry is whether Ott was entitled to invoke his privilege against self-incrimination when faced with requests for admission in this civil proceeding. The fifth amendment of the United States Constitution, which provides that no person "shall be compelled in any criminal case to be a witness against himself," ² prohibits the state from compelling a person, when acting as a witness in any investigation, to give testimony that shows or might tend to show that the person committed a crime. E.g., Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973). The claimant may invoke the privilege against self-incrimination if he apprehends a real and appreciable risk of prosecution. Flagler v. Derickson, 134 Ariz. 229, 231, 655 P.2d 349, 351 (1982). The requests for admission served upon Ott expressly seek admission of criminal activities and therefore would seem to fall within the protection afforded by the fifth amendment. The state, however, advances several arguments to support its position that the privilege does not apply.

The state first argues that the privilege against self-incrimination applies only to criminal cases. We categorically reject that argument. Although the language of the fifth amendment refers only to criminal cases, the privilege against self-incrimination unequivocally applies to civil proceedings as well:

The [Fifth] Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceedings, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.

Lefkowitz, 414 U.S. at 77, 94 S.Ct. at 322, 38 L.Ed.2d at 281. See also State v. Carvajal, 147 Ariz. 307, 311, 709 P.2d 1366, 1370 (App.1985).

When discovery requests made in a civil proceeding may tend to incriminate the party on whom the requests are served, the party may legitimately invoke the privilege against self-incrimination. Thus, the claimant may assert his fifth amendment privilege in civil discovery proceedings to justify his refusal to respond to interrogatories, answer deposition questions, or produce documents. Phelps Dodge Corp. v. Superior Court, 7 Ariz.App. 277, 438 P.2d 424 (1968); First Federal Savings & Loan Ass'n v. Schamanek, 684 P.2d 1257 (Utah 1984). Authority is split, however, on the issue of whether the privilege applies to requests for admission propounded pursuant to Rule 36, Arizona Rules of Civil Procedure. Compare, e.g., Schamanek, 684 P.2d 1257 (the privilege applies to rule 36 requests for admission) with Phelps Dodge, 7 Ariz.App. 277, 438 P.2d 424 (the privilege does not apply to rule 36 requests for admission).

The justification advanced in Phelps Dodge for concluding that the privilege does not apply to requests for admission was that, unlike the other rules of discovery, rule 36 involves "no real danger of criminal penalty...." That is so, the court reasoned, because "[a]ny admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding." Phelps Dodge, 7 Ariz.App. at 285, 438 P.2d at 432 (quoting Rule 36(b), Arizona Rules of Civil Procedure). The court concluded that deemed admissions therefore are not testimony that could implicate the defendant in criminal activity.

Other jurisdictions disagree with the reasoning of Phelps Dodge, however, and hold that the fifth amendment privilege applies to rule 36 requests for admission. See, e.g., Schamanek, 684 P.2d 1257; Gordon v. FDIC, 427 F.2d 578 (D.C.Cir.1970); LeBlanc v. Spector, 378 F.Supp. 310 (D.Conn.1974); FDIC v. Logsdon, 18 F.R.D. 57 (W.D.Ky.1955). In Schamanek, the Utah Supreme Court stated In our view, the interests that the privilege against self-incrimination were designed to safeguard cannot be adequately protected by compelling a person to trade that right for the attenuated protection of Rule 36(b). Full and complete protection of that right can be afforded only if a party may decline to answer by interposing an objection to requests for admissions.

Schamanek, 684 P.2d at 1262. The immunity inherent in the restricted use of admissions to the pending action, the court reasoned, is insufficient and does not fully protect the claimant against future criminal charges. Id.; see generally Finman, The Requests for Admissions in Federal Civil Procedure, 71 Yale L.J. 371, 384-85 (1962).

When we are convinced that a decision of Division Two relies upon clearly erroneous principles, the decision is not binding on this court. See Scappaticci v. Southwest Savings & Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983). In our judgment, the approach taken in Phelps Dodge reflects too narrow a view as to the scope of the privilege granted by the fifth amendment and too broad a view as to the scope of immunity provided by rule 36. We conclude that the better rule is that a civil litigant may invoke the privilege against self-incrimination to justify his refusal to respond to requests for admission.

The broad scope of the privilege can no longer be questioned. In determining whether the privilege can be invoked, "a court should construe the scope of the privilege liberally and not in a hostile or niggardly spirit." Schamanek, 684 P.2d at 1263. This constitutionally-guaranteed privilege "extends beyond obvious admissions of guilt to encompass statements which may only tend to incriminate by furnishing one link in the chain of evidence required to convict." Flagler, 134 Ariz. at 231, 655 P.2d at 351 (emphasis in original). The claim of privilege thus protects a party when that person's "answer might furnish one tiny link in the chain of evidence tending to establish [criminal liability]." Id. at 232, 655 P.2d at 352.

The privilege against self-incrimination does not, however, absolutely bar the state from obtaining incriminatory testimony. The Constitution permits the state to compel testimony if a grant of immunity ensures that neither the compelled testimony nor...