Stoddard, In re

• Decision Date: 20 December 1983
• Docket Number: No. 83-317,83-317
• Citation: 470 A.2d 1185,144 Vt. 6
• Court: Vermont Supreme Court
• Parties: In re Sallyann STODDARD.

Page 1185

470 A.2d 1185

144 Vt. 6

In re Sallyann STODDARD.

No. 83-317.

Supreme Court of Vermont.

Dec. 20, 1983.

John J. Easton, Jr., Atty. Gen., Robert W. Gagnon, Asst. Atty. Gen., and Ken Denti, law clerk, on brief, Montpelier, for plaintiff-appellee.

Cheney & Brock, Montpelier, and Gensburg & Axelrod, St. Johnsbury, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

This is an appeal from a summons issued by the Caledonia District Court, Unit No. 4, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, 13 V.S.A. §§ 6641-6649 (hereinafter cited as Uniform Act to Secure Witnesses). In April, 1983, a superior court judge in New Jersey issued a certificate pursuant to Title 2A N.J.S.A. § 81-20, ^* stating that appellant, Sallyann Stoddard, a Vermont resident, was a material witness in a grand jury criminal investigation in New Jersey. Pursuant to a stipulated agreement between Stoddard and the Caledonia County State's Attorney, acting on behalf of Vermont and New Jersey, Stoddard agreed to submit to a deposition in Vermont in lieu of her appearance in New Jersey. During the deposition, Stoddard, claiming her Fifth Amendment privilege against self-incrimination, refused to answer certain questions relating to the activities of Richard Williams, the subject of the New Jersey investigation and the father of Stoddard's two children. As a result of the assertion of her Fifth Amendment privilege, New Jersey refused to accept her deposition in lieu of a grand jury appearance. A hearing was then held in the Caledonia District Court pursuant to 13 V.S.A. § 6643 of the Uniform Act to Secure Witnesses, and a summons was issued directing Stoddard to attend and testify before the New Jersey grand jury. This Court granted Stoddard's motion for a stay of the summons pending a review on the merits. 464 A.2d 757.

The threshold issue on appeal, an issue of first impression in Vermont, is whether the summons issued pursuant to the Uniform Act to Secure Witnesses is a final judgment and therefore appealable to this Court. V.R.A.P. 4; State v. Blondin, 128 Vt. 613, 615, 270 A.2d 165, 166 (1970); Beam v. Fish, 105 Vt. 96, 97-98, 163 A. 591, 591-92 (1933).

Although there is very little authority directly on point, we hold that the summons is a final judgment and that this Court does have jurisdiction to hear Stoddard's appeal. New Jersey v. Geoghegan, 76 A.D.2d 894, 429 N.Y.S.2d 37 (1980). The summons directs Stoddard to leave her home and travel to another state in order to appear as a witness before a grand jury engaged in the investigation of a 1981 New Jersey criminal homicide. This is a drastic procedure, State v. Emrick, 129 Vt. 475, 476, 479, 282 A.2d 821, 824 (1971), for "it represents an incursion upon the liberty of a prospective witness, who [is] accused of no crime or wrongdoing...." People v. McCartney, 38 N.Y.2d 618, 622, 345 N.E.2d 326, 329, 381 N.Y.S.2d 855, 857 (1976). The right of the New Jersey grand jury to hear the testimony of an out-of-state witness must be balanced against the right of the witness whose presence is compelled. Id. If we were to hold that there is no right of review, see, e.g., Armes v. State, 573 S.W.2d 7 (Tex.Cr.App.1978), we would, in effect, be precluding Stoddard from any right of review at all. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). This would clearly be contrary to Stoddard's guaranteed right to a remedy at law. Vt. Const. Ch. I, Art. 4. If an indictment is handed down by the New Jersey grand jury, and a criminal action is begun, Stoddard, who would not be a party in that action, would have no right to appeal the merits of the Caledonia District Court summons on the basis of any judgment which might be rendered in the New Jersey action. Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996 (10th Cir.1965). A few courts have held that the only appellate avenue open to a witness in Stoddard's position is to disobey the summons and risk being found in contempt of court. See, e.g., United States v. Lavender, 583 F.2d 630, 632 (2d Cir.1978) (party must either comply or resist and argue the validity of the order in a contempt hearing). However, we believe this too would be unavailing because "a contempt proceeding based on the violation of a court order does not open to reconsideration the legal or actual basis of the order so as to result in a retrial of the original controversy." Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 164, 225 A.2d 60, 63 (1966). Therefore, the summons ordering Stoddard to New Jersey pursuant to the Uniform Act to Secure Witnesses is a final order from which she has a right to an appeal.

We next address Stoddard's claim that the trial court failed to make independent findings of fact as required by the Uniform Act to Secure Witnesses. 13 V.S.A. § 6642 requires a district court judge to hold a hearing upon presentation of a certificate issued by a judge of the requesting state. At this hearing, the judge must determine (1) that the witness is material; (2) that the witness' out-of-state presence is necessary; and (3) that the witness' attendance...