Taylor v. Com.

Decision Date05 December 1975
Citation338 N.E.2d 823,369 Mass. 183
PartiesRoderick TAYLOR v. COMMONWEALTH (and a companion case). 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wade M. Welch, Asst. Atty. Gen., for the Commonwealth.

Geraldine S. Hines, Roxbury, for Roderick Taylor.

Max D. Stern, Boston, for Henry Funches.


REARDON, Justice.

These are two petitions for writs of error brought by juveniles held in contempt by the Municipal Court of the Dorchester District for refusal to answer questions in juvenile proceedings against a third party. After hearing, a judge of the Superior Court granted both petitions. The cases are here on the Commonwealth's substitute outline bills of exceptions and designations, and the outline bills of exceptions and designations of the petitioners.

On October 4, 1973, a sixty-five year old man, Ludivico Louis Barba, was stabbed to death. Considerable public attention was focused on the murder. According to contemporary news accounts, the victim was attacked by a group of up to fifty black teenagers while he was fishing off Columbia Point in Dorchester in an area immediately behind a shopping center known as the Bayside Mall. Both petitioners are black, were at that time sixteen years of age, and resided at the Columbia Point housing project.

On the evening of October 4, 1973, the petitioner Roderick Taylor was requested by investigating police officers to go to station 11 in Dorchester for purposes of interrogation concerning the crime. He appeared there voluntarily, accompanied by his father who remained with him throughout the period of questioning save for several minutes when he departed the room for a drink of water. After being given the Miranda warnings Taylor agreed to answer questions and placed himself and the petitioner Henry Funches, among others, in close proximity to the location and time of the crime. He also stated that earlier in the day he had attended a meeting of black youths at which there was discussion about '(f)ighting white people,' and that later that day this group had picked up 'sticks and stuff and went over to the beach' in order '(t)o fight . . . (w)hite boys.' 2

On October 5, 1973, a juvenile complaint was issued against one Hakim Williams charging him as delinquent by reason of murder, and the petitioners were called as witnesses by the Commonwealth in the resulting proceedings.

Taylor was first called to testify in the juvenile session of the Municipal Court of the Dorchester District on November 21, 1973. He appeared there voluntarily, not having been formally summoned, and unaccompanied by counsel or parents. On being sworn, Taylor was interrogated by the prosecutor who was soon seeking to elicit his observations of the victim Barba at a time and place in close proximity to the time and place of the crime. Taylor admitted having been at the beach with a group of black youths and having seen a white man in his sixties there, and he identified three members of the group. When the assistant district attorney inquired concerning his observations of the victim Barba, Taylor said he would refuse to answer the questions, and after a series of unresponsive answers from him it was moved by the Commonwealth that he be held in contempt. The judge then asked Taylor if he understood what was going on, to which he replied, 'No.' Thereupon the judge stated that he was going to be recognized as a material witness and he could 'step down now and confer with counsel who has been appointed by the Court in the matter of contempt.'

Taylor again appeared as a witness on December 11, 1973, subject at this time to subpoena and with counsel. Prior to any interrogation, Taylor's counsel advised the court that his client would decline to answer questions relating to the incident of October 4, 1973, 'on the grounds that any answers might tend to incriminate him.' Taylor thereafter refused to answer questions dealing with his activities and observations with respect to the afternoon of October 4, 1973. His testimony was then suspended and the detective who had questioned him on the evening of October 4, 1973, took the stand to relate the conversation he had had with Taylor at that time. Taylor was recalled as a witness and, on refusing to answer the question, 'Where did you go when you left your apartment?', was held in contempt.

The petitioner Funches's first appearance as a witness was on December 11, 1973, pursuant to a subpoena. He was accompanied by counsel. Following a few introductory questions which were answered, the prosecutor inquired further of Funches. Among the questions asked of him was, 'Directing your attention to October 4, 1973, did you stay in your apartment all day?' To this and other questions concerning his movements on the morning of October 4, 1973, Funches, on advice of counsel, declined to answer on the ground that such answers might tend to incriminate him. The ruling of the judge was that the answers to the questions could not possibly incriminate him, and when Funches persisted in his refusal to answer he was held in contempt.

Complaints were issued against both Taylor and Funches. They were both adjudged delinquent by reason of their refusal to answer and were then sentenced to sixty days with the Youth Service Board. In the Superior Court the two cases were heard together, the claims of privilege were sustained as to both petitioners, and the adjudications were set aside on that ground.

The right of a witness not to incriminate himself is secured by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Since the decision of the United States Supreme Court in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), which held that the Fourteenth Amendment guarantees to a witness testifying in a State court the protection of the Fifth Amendment, we have applied Federal standards in determining whether a claim of privilege is justified. Murphy v. Commonwealth, 354 Mass. 81, 235 N.E.2d 552 (1968). Commonwealth v. Baker, 348 Mass. 60, 201 N.E.2d 829 (1964). Cf. Gambale v. Commonwealth, 355 Mass. 394, 245 N.E.2d 246, cert. denied, 396 U.S. 881, 90 S.Ct. 158, 24 L.Ed.2d 140 (1969). Under those standards a judgment of contempt against a witness for refusing to answer a question on Fifth Amendment grounds must be reversed unless it is "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency' to incriminate.' Malloy v. Hogan, supra 378 U.S. at 11--12, 84 S.Ct. at 1496. The privilege thus afforded extends not only to 'answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . ..' Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

In this case Taylor had already told the police on October 4 of his meeting with a group of black, youths on the day of the murder, of the talk of fighting whites, that the group had armed themselves with various implements and had proceeded in the direction of the beach, and that he was on the scene when the attack took place. The foregoing statements by Taylor do not make it possible to conclude that it was 'perfectly clear' that the witness was incorrect in invoking the protection of the privilege. Furthermore, there were reportedly two additional violent attacks by two groups of young blacks in the Columbia Point area that day. 3 Taylor could well have concluded that testimony on his movements on October 4 would implicate him in these other crimes. Such a fear could not be considered fanciful.

In the case of Funches, Taylor's statement to the police had placed Funches near the place at the time of the murder. Funches lived at Columbia Point, a few minutes walk from the scene of the attack on Barba. Upon consideration of all the circumstances we agree with the Superior Court judge that it was not 'perfectly clear' that answers to questions put to Funches concerning his movements on October 4, 1973, would not result in disclosure of information having a tendency to incriminate him.

The Commonwealth naturally is anxious to have the testimony of both of these witnesses but they are not required to assist the Commonwealth in building its case at the expense of incriminating themselves. This is not a case where recalcitrant witnesses have been granted immunity and then continued to refuse to testify. See Matter of DeSaulnier (No. 2), 360 Mass. 761, 276 N.E.2d 278 (1971). The Commonwealth has the burden of presenting a record on which it can be determined that there is no real possibility that the witness's answer will lead to disclosure injurious to him. Murphy v. Commonwealth, 354 Mass. 81, 84, 235 N.E.2d 552 (1968). That burden has not been met as to either of the petitioners.

The foregoing disposes of the case against Funches. The Commonwealth argues however that as to Taylor, even if he ordinarily would have been privileged not to answer the question, 'Where did you go when you left your apartment?', that privilege was waived by his November 21, 1973, testimony. On that occasion he was sworn and testified that on the afternoon of the crime he went down to the beach with a group of black youths and saw one white male, in his sixties, at that location. It is claimed that by giving this incriminatory testimony, placing himself at the scene of the crime, taylor waived the right to claim the privilege not to answer questions about his movements during the morning of that day. The principle is basically that '(d)isclosure of a fact waives the privilege as to details.' Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951).

It has long been the law in Massachusetts...

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