State v. Vickers

• Decision Date: 11 September 1973
• Citation: 309 A.2d 324
• Parties: STATE of Maine v. Kevin H. VICKERS.
• Court: Maine Supreme Court

Page 324

309 A.2d 324

STATE of Maine v. Kevin H. VICKERS.

Supreme Judicial Court of Maine.

Sept. 11, 1973.

David M. Cox, County Atty., Bangor, for plaintiff.

Thompson, Willard, Smith & McNaboe, by U. Charles Remmel, II, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On August 2, 1971 Kevin H. Vickers had given the police and the prosecuting attorney for the County of Penobscot a statement, which was taken down stenographically by an official court reporter, in which he related his participation, and the involvement of Alton Phinney and Rodney Warren, in an alleged conspiracy to commit a criminal offense under the laws of the State of Maine. At the first trial of Phinney and Warren in October, 1971 Vickers was granted immunity pursuant to 15 M.R.S.A. § 1314-A, ¹ all the statutory requirements applicable thereto being satisfied. When called to testify in the course of that trial, Vickers refused on the ground that his testimony might incriminate him. Although advised of the grant of immunity, the extent thereof and the consequences to which refusal to answer would subject him, Vickers elected to stand by his initial decision not to testify. He was cited for, and found guilty of, contempt, and on October 15, 1971, the then presiding Justice sentenced him to pay a fine of five hundred ($500.00) dollars which he did. This first trial of Phinney and Warren aborted in a mistrial.

In January, 1972 the conspiracy charge against Phinney and Warren was retried before another jury with another Superior Court Justice presiding. Vickers was called to testify and again he refused on the ground that his answers might incriminate him. Vickers was represented by counsel. After explaining to the appellant that he had been granted immunity as to 'any and all matters or possible crimes or offenses which he could have possibly committed, irrespective of whether it involves Mr. Phinney or Mr. Warren or anyone else,' the Court then warned Vickers that if he refused to testify, he subjected himself to a citation for contempt and possible imprisonment as a result thereof. Vickers disregarded the Court's order to answer the questions and, nothwithstanding his asserted understanding of the grant of immunity and the scope thereof, he persisted in his refusal on the ground that it might incriminate him. Cited for contempt and found guilty, Vickers was sentenced to serve five (5) months in the county jail. He appeals. We deny the appeal.

1. Constitutional privilege against self-incrimination-immunity

At the initial stage, of this appeal, the appellant questioned the procedure whereby the Court below granted immunity. It was said that the stenographic record of Vickers' potential testimony, which originally had been attached to the motion requesting the grant of immunity and incorporated therein by reference, had become detached from, and was not a part of, the process at the time of the hearing and decision on the motion. On remand for supplemental hearing, pending appeal, to determine the facts, it was found, and the appellant does not further dispute it, that Vickers' statement, originally a part and parcel of the motion for the grant of immunity, was still annexed thereto at the time of the hearing and decision on the motion. The Court expressly found that it became detached later by clerical error in the Clerk's office. At oral argument, counsel for the appellant indicated that he was not pressing his original point to the effect that, because of the absence from the motion of Vickers' expected testimony, the immunity statute, as applied to him, was unconstitutional, since, without the allegedly missing insertions, he was not advised respecting the nature and scope of the area within which the immunity would operate, and thus would have the right to assert his constitutional privilege against self-incrimination for want of the necessary intelligence of the subject matter of the inquiry.

The appellant further conceded, at oral argument and in his brief, that the recent decision of the Supreme Court of the United States (Kastigar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212) was dispositive of his claim that the Maine immunity statute (15 M.R.S.A § 1314-A) is unconstitutional under the constitutions of the State of Maine and of the United States in that the scope of immunity granted under it is so limited as to violate the right against self-incrimination provided by those constitutions. Nothwithstanding this concession, we have considered the appellant's original contention and find it without merit.

In Gendron v. Burnham, 1951, 146 Me. 387, 82 A.2d 773, 38 A.L.R.2d 210, our Court indicated that the two constitutional provisions (Article I, Section 6, Maine Constitution; Amendment V. Constitution of the United States) ² were so similar in nature and identical in purpose that precedent with respect to the construction of the one may well serve as precedent for the construction of the other. For our purposes, the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment. State v. Castonguay, 1968, Me., 240 A.2d 747.

The Fifth Amendment privilege against self-incrimination was made fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 1964, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. It secures against state invasion the right of a person to remain silent unless he chooses to speak in the unfettered operation of his own will and it protects the individual against the imposition of penalties for such silence. The same standards must be used to assess the justification of an accused's silence in his exercise of the constitutional privilege against self-incrimination, whether the problem arises in a state or federal proceeding. Malloy v. Hogan, supra.

The Constitutional Rule was extended to state witnesses apprehensive of criminal prosecution under the federal law. In Murphy v. Waterfront Commission of New York Harbor, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, the United States Supreme Court held-

'the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.'

In short, the constitutional privilege, said the Murphy Court protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.

In Brunswick Construction Co., Inc. v. Leonard, 1954, 149 Me. 426, 103 A.2d 115, this Court said:

'. . ., construing both the Fifth Amendment to the Constitution of the United States and our own constitution, it is apparent that the privilege against self-incrimination not only applies to a case where a witness is directly charged with a crime but to a case where he may be asked to disclose the circumstances of an offense, the sources from which, or the means by which evidence of its commission or of his connection with it may be obtained "without using his answers as direct admissions against him."'

We recognize the interrelation between the privilege against self-incrimination and immunity statutes. Our society, organized, as it is, under dual Governments of State and Nation and subject to the mandates of State and Federal Constitutions, in order to be an orderly society under effective control, must rely upon a broad and an essential governmental power to compel residents to testify in court or before grand juries or other agencies. See Blair v. United States, 1919, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. This power of government to compel persons to give testimonial evidence is firmly established in Anglo-American jurisprudence. Kastigar v. United States, supra. But it is not absolute and the most important exception is the exemption provided by the constitutional privilege against self-incrimination. The duty of the individual to testify concerning facts within his knowledge is always measured by his constitutional right to assert his privilege against self-incrimination. Gendron v. Burnham, supra.

Assertable in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, the constitutional privilege against self-incrimination protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. United States, supra. See, Huot v. Gendron, 1971, Me., 284 A.2d 899.

The danger of criminal prosecution, however, must be real and based on reasonable cause. We said in Collett v. Bither, 1970, Me., 262 A.2d 353:

'And, in determining whether a real apprehension of danger exists, the judge before whom the problem is raised must give the benefit of any reasonable doubt to the person claiming the privilege. It is essential, however, to proper judicial administration that the exercise of the privilege not depend upon a purely arbitrary or capricious claim of apprehension of incriminating danger made by the person refusing to answer, and it is for the court to decide whether the fear of self-crimination entertained by the witness or party is real or imaginary, substantial in character or so improbable or unrealistic that no reasonable person would suffer it to influence his conduct.'

The need for testimonial evidence in protecting society itself, especially in settings where the privilege against compulsory self-incrimination would...