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SJC-11469

            COMMONWEALTH   vs.   JASON J. LECLAIR & another.1



          Hampshire.       March 6, 2014. - October 10, 2014.

Present:    Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, &
                              Lenk, JJ.2


Contempt. Practice, Criminal, Contempt. Constitutional Law,
     Self-incrimination. Witness, Self-incrimination.



     Complaint received and sworn to in the Northampton Division of
the District Court Department on May 2, 2012.

     An adjudication of contempt was made by W. Michael Goggins, J.

     The Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.


     Paul R. Rudof, Committee for Public Counsel Services (Dana
Goldblatt with him) for the intervener.
     Cynthia M. Von Flatern, Assistant District Attorney, for the
Commonwealth.
     Michael C. Walsh & Stephanie K. Fattman, pro se, amici curiae,
submitted a brief.


     DUFFLY, J.    A nonimmunized witness in a criminal trial

     1
         Mark Sheehan, intervener.
     2
      Chief Justice Ireland participated in the deliberation on this
case prior to his retirement.
                                                                    2


repeatedly refused to answer questions posed by the prosecutor

concerning his use of illegal drugs on the ground of the privilege

against self-incrimination.   The prosecutor represented to the

witness and the trial judge that the Commonwealth had no intention

of pursuing such a prosecution, but when the witness, advised by his

attorney, refused to answer, the judge directed the witness to do so.

When the witness continued to refuse, the judge found the witness in

summary criminal contempt and imposed a sentence of ninety days'

incarceration, which he stayed pending resolution of the witness's

interlocutory appeal.

     In considering the witness's appeal, we are confronted with the

question whether the judgment of contempt should not have entered

because, regardless of the Commonwealth's intention, the compelled

admission was a violation of the witness's privilege against

self-incrimination under the Fifth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of Rights.

We conclude that, in these circumstances, the witness validly invoked

his privilege against self-incrimination, that his compelled

responses to such questioning did not constitute a waiver of the

privilege, and that the judgment of summary contempt should not have

entered.

     Background and prior proceedings.   On May 2, 2012, the defendant

was arraigned on a charge of assault and battery, G. L. c. 265, § 13A,

as a result of an incident between the defendant and his girl friend
                                                                     3


that had taken place in his friend Mark Sheehan's apartment at

approximately 10 A.M. that morning.3

     On August 1, 2012, the day that trial was scheduled to begin,

the Commonwealth indicated its intent to call Sheehan as a witness,

and the trial judge appointed counsel to represent Sheehan with

respect to a potential assertion of a Fifth Amendment privilege

against self-incrimination.   Sheehan's counsel reported that Sheehan

did indeed have a Fifth Amendment privilege not to testify, because,

based on his answers to questions expected to be posed to him, the

testimony could expose him to criminal charges of possession of a

controlled substance and conspiracy to violate the drug laws.

Counsel stated that Sheehan intended to assert that privilege.

Following a brief in camera hearing,4 the judge ruled that the

invocation of the privilege was not valid because Sheehan had not shown

that he faced a real risk that his answers to questions would "tend

to indicate involvement in illegal activity, as opposed to a mere

     3
       Mark Sheehan telephoned police after he had been awakened by
the defendant yelling, "Call the police; call the police," amid a
confrontation between the defendant and his girl friend.
     4
       When the judge initially asked counsel to describe the
substance of Sheehan's claim in open court, counsel requested an in
camera hearing because she had informed her client that his statements
to her would remain confidential; the judge declined to conduct the
hearing in camera. Upon further questioning, counsel then informed
the judge, without detail, that Sheehan's statements would involve
an admission to illegal drug use, which could be used to impeach him.
After counsel explained the criminal charges she believed might be
implicated, the judge conducted a brief in camera hearing concerning
the substance of Sheehan's potential testimony, as presented by his
counsel.
                                                                    4


imaginary, remote, or speculative possibility of prosecution."     See

Commonwealth v. Martin, 423 Mass. 496, 502 (1996).

     The jury-waived trial commenced, and the Commonwealth called

Sheehan as its first witness.   On direct examination, the prosecutor

did not pose any questions on Sheehan's use of illegal drugs during

the evening prior to the incident.    On cross-examination, defense

counsel first asked Sheehan about his use of alcohol that evening,

and then inquired as to Sheehan's use of illegal drugs.   In response,

Sheehan invoked his privilege against self-incrimination.     When the

judge nonetheless instructed him to respond to defense counsel's

questions concerning whether he had used illegal drugs on the night

in question, and what type of drugs, Sheehan replied that he had used

cocaine.   When defense counsel asked Sheehan how much cocaine he had

used, Sheehan's counsel objected, and the objection was overruled.

On his counsel's advice, Sheehan thereafter continued to invoke his

privilege and declined to respond to counsel's questions on the amount

of cocaine Sheehan had used, or to any further questions on drug use.

     The judge admonished Sheehan that his refusal could result in

immediate criminal sanctions.    After a brief recess, the judge

explained that refusal to answer questions based on a mistaken

assertion of Fifth Amendment privilege would be summarily punished

as criminal contempt.   He then inquired into the possibility of
                                                                     5


immunizing Sheehan.5    After another brief recess during which the

prosecutor consulted with his office, the prosecutor reported that

no formal offer of immunity could be made.      The prosecutor stated

also, however, "I don't think that it's something we have an interest

in pursuing at this time."    He then proffered a written statement in

which he represented that should Sheehan testify "to the use of

controlled substances under [G. L. c. 94C] on that occasion the

Commonwealth has no present, nor future interest in the prosecution

of . . . Sheehan for such activity," and that Sheehan's "testimony

alone that he consumed a controlled substance on that occasion is not

enough to bring a formal prosecution against . . . Sheehan for that

activity."

     Sheehan's counsel informed the judge that she had advised her

client of his privilege not to testify in response to questions

regarding illicit drug use, and that her client would continue to

invoke that privilege; counsel sought a stay of any criminal sanction,

and stated that if it were determined on appeal that Sheehan had no

valid Fifth Amendment privilege, he would testify immediately and

purge the contempt.    The judge once again warned that Sheehan risked,

on a finding of criminal contempt, an immediate sanction of

incarceration, and inquired whether that changed counsel's position.


     5
       Later in the proceedings, the judge informed the parties that,
upon further inquiry, it appeared that immunity was not available in
the District Court. The judge was correct. See G. L. c. 233, § 20E;
Commonwealth v. Russ R., 433 Mass. 515, 520-522 (2001).
                                                                     6


Sheehan's counsel informed the court that her client was "asserting

his Fifth Amendment right not to testify, understanding that . . .

he may be jailed for doing so."   At that point, the judge told Sheehan

directly that his continued refusal to answer the question regarding

drug use was "impermissible, and that contempt sanctions may be

imposed, and that that may include criminal sanctions, and that that

may include a penalty of up to [three] months incarceration, or [a]

$500 fine."6   See Mass. R. Crim. P. 43, 378 Mass. 919 (1979).

     The first question posed by defense counsel on resuming his

cross-examination was whether on the morning of May 2 Sheehan had been

using cocaine, to which Sheehan responded by invoking his privilege

under the Fifth Amendment.    The judge thereupon found Sheehan in

summary criminal contempt for failure to answer questions based on




     6
       Counsel for Sheehan again objected, stating that she understood
the matter to be in the nature of civil, not criminal, contempt,
because the witness intended to purge himself of contempt upon a
determination by an appellate court that his invocation was not valid.
The judge disagreed, noting that the failure could be considered
criminal contempt where the witness refused in the middle of trial
to answer a question as to which the court had ruled he had no valid
privilege and had ordered the witness to testify. When the judge
repeated his warning to the witness that continued refusal could
result in a finding of criminal contempt "that would expose [the
witness] to incarceration, beginning forthwith, of up to [ninety] days
in a [h]ouse of [c]orrection or a $500 fine," the witness stated:
"Your Honor, what I don't understand is, as a[n] American, why I cannot
exercise a constitutional right." Responding to further statements
made by the judge, the witness indicated that he respected that there
was a dispute regarding the question and understood the sanctions he
faced, whereupon cross-examination resumed.
                                                                     7


a mistaken claim of the Fifth Amendment privilege,7 ordered that he

be incarcerated for ninety days, and stayed the sentence pending the

resolution of the interlocutory appeal.     The criminal trial itself

was also stayed during the pendency of the appeal.    Sheehan's motion

for reconsideration was denied.    Sheehan was allowed to intervene in

the criminal proceeding, and he appealed the judgment of contempt to

the Appeals Court.    We transferred the case to this court on our own

motion.

     Discussion.     "The right of a witness not to incriminate himself

     7
       On a form captioned "Criminal Contempt, Summary Judgment," the
judge checked off the following as the bases for the summary action:
"The conduct occurred during court proceedings and in the judge's
sight or hearing"; "Contemnor had been warned"; "Punishment does not
exceed three months['] imprisonment or $500 fine"; and "Immediate
adjudication of contempt was necessary to prevent disorder or
disruption in courtroom." In the block requesting a description of
the conduct, the judge wrote:

           "Mr. Sheehan is a Comm. witness in an A&B prosecution.
     Counsel was apptd to represent him in connection w/ a possible
     5th Amendment privilege. His atty stated at side bar and later
     in camera that the privilege was his potential prosecution for
     possession of cocaine and/or conspiracy to violate drug laws.
     Reason she claimed was that [the witness] would testify that he
     had been using cocaine at the time of the alleged A&B. Court
     ruled that was insufficient basis and the invocation of the
     privilege was denied. Ordered to testify by the court, he
     refused three times and was found in contempt."

     In a footnote, the judge added:

          "Mr. Sheehan was friends w/ def. and was a reluctant
     witness. Ct. was concerned his claim of drug use was a
     fabrication for trial and lacked credibility and was being used
     as a vehicle to facilitate a path to acquittal for his friend,
     the [defendant], so that the evidence of drug use was so
     imaginary, remote or speculative that it should not serve as the
     basis for invocation of 5th Amendment privilege."
                                                                    8


is secured by both the Fifth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of Rights."

Taylor v. Commonwealth, 369 Mass. 183, 187 (1975).     Although "art.

12 of the Massachusetts Declaration of Rights provides broader

protection from self-incrimination than does the Fifth Amendment to

the United States Constitution," Pixley v. Commonwealth, 453 Mass.

827, 832 n.6 (2009), citing Commonwealth v. Mavredakis, 430 Mass. 848,

858–859 (2000), "[s]ince the decision of the United States Supreme

Court in Malloy v. Hogan, 378 U.S. 1 (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."

Taylor v. Commonwealth, supra, citing Murphy v. Commonwealth, 354

Mass. 81 (1968).

     "The proscription of the Fifth Amendment that '[n]o person . . .

shall be compelled in any criminal case to be a witness against

himself' may be invoked whenever a witness reasonably believes that

the testimony could be used in a criminal prosecution or could lead

to other evidence that might be so used."    Pixley v. Commonwealth,

supra at 832, citing Kastigar v. United States, 406 U.S. 441, 444–

445 (1972).   See Commonwealth v. Funches, 379 Mass. 283, 289 (1979).

Because the privilege against self-incrimination is "a fundamental

principle of our system of justice," it "is to be construed liberally

in favor of the claimant."   Commonwealth v. Borans, 388 Mass. 453,
                                                                     9


455 (1983).   Accordingly, "a refusal to testify on Fifth Amendment

grounds must be upheld 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."    Id. at 456, quoting Hoffman v. United

States, 341 U.S. 479, 488 (1951).

     Here, there was a more than adequate basis from which to determine

that the anticipated testimony would have been an admission of

violations of the drug laws that would tend to incriminate Sheehan,

that the testimony could lead to other evidence that might have been

used in a criminal prosecution, and therefore that invocation of the

privilege not to testify was justified.   The incriminatory potential

of the testimony was apparent from the nature of the specific questions

intended to be propounded, concerning Sheehan's drug use and his

ability to perceive and remember the incident; from this it was evident

that there was a "real risk that his answers to questions [would] tend

to indicate his involvement in illegal activity."     Commonwealth v.

Martin, 423 Mass. 496, 502 (1979).   See Murphy v. Commonwealth, supra

at 84, quoting Hoffman v. United States, supra at 486-487 (to sustain

privilege "it need only be evident from the implications of the

question, in the setting in which it was asked, that a responsive

answer to the question or an explanation of why it cannot be answered

might be dangerous because injurious disclosure could result").

     That the substance was not available to be tested would not, in
                                                                    10


and of itself, preclude prosecution for possession of a controlled

substance approximately three months prior to the admission, see

Commonwealth v. Dawson, 399 Mass. 465, 467 (1987) ("Proof that a

substance is a particular drug need not be made by chemical analysis

and may be made by circumstantial evidence"), and, in any event, such

testing would not be required in a prosecution for conspiracy to

violate the drug laws.    See Commonwealth v. Funches, 379 Mass. 283,

288 n.5 (1979) ("Answering the questions concerning a conversation

about drugs could lead to prosecution for conspiracy to violate the

drug laws, G. L. c. 94C, § 40, or for the substantive offense, G. L.

c. 94C, §§ 34-35").

     Moreover, assuming, as the Commonwealth argues, that the

confession to possession or use of an illicit substance is not alone

sufficient to support a conviction, we nonetheless apply broad and

"highly protective" standards to determine whether a claim of

privilege is justified.    Commonwealth v. Martin, supra at 502.   Any

admission by Sheehan to drug use on the night in question might have

been used in questioning others concerning Sheehan's drug use on that

night, or to provide leads for a subsequent criminal investigation.

"The privilege 'not only extends 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 the

claimant.'"   Commonwealth v. Borans, supra at 456, quoting Hoffman

v. United States, supra at 486.    See, e.g., National Fed'n of Fed.
                                                                    11


Employees v. Greenberg, 983 F.2d 286, 292 (D.C. Cir. 1993) ("Admitting

the use of illegal drugs, at least use so recent that the statute[]

of limitations [has] not run, would doubtless be incriminating");

Commonwealth v. Koehler, 614 Pa. 159, 213 (2012) (concluding trial

judge correctly informed witness she had Fifth Amendment privilege

not to answer questions regarding her drug use at time of incident

about which she was testifying).    Whether, as the judge believed,

Sheehan may have had an additional motive not to testify was irrelevant

where the circumstances otherwise support the determination that his

responses would tend to incriminate him.

     Nor was Sheehan's invocation rendered invalid because of the

prosecutor's assertion that the Commonwealth did not intend to

prosecute him on the basis of his testimony regarding the use of

illicit drugs on the night in question.8   See Commonwealth v. Martin,

supra at 503 n.3 ("The prosecutor’s denial of an intent to prosecute

a witness is not sufficient to defeat an assertion of the privilege");

Commonwealth v. Borans, supra at 459, and cases cited.     We have not

embraced a rule that "would require the trial court, in each case,


     8
       Even had the District Court judge had the authority to issue
an immunity order, see note 5, supra, art. 12 of the Massachusetts
Declaration of Rights requires that an immunized witness be granted
transactional immunity, which protects a witness from being
prosecuted not only by an individual assistant district attorney or
by a district attorney's office, but also by any State prosecutorial
authority. See Vaccari, petitioner, 460 Mass. 756, 759-761 & n.5
(2011). An assertion by an assistant district attorney for a single
county could not suffice to meet this requirement.
                                                                     12


to assess the practical possibility that prosecution would result from

incriminatory answers."    United States v. Miranti, 253 F.2d 135, 139

(2d Cir. 1958).   In any event, "[t]his is not a case where recalcitrant

witnesses have been granted immunity and then continued to refuse to

testify."   Taylor v. Commonwealth, supra at 188-189.

     We also reject the Commonwealth's argument, advanced for the

first time on appeal, that Sheehan waived his privilege when he

answered two questions posed by defense counsel on cross-examination.

Sheehan's answers were given in response to the judge's instruction

that he was required to answer, and came after Sheehan had invoked

his privilege prior to trial, and repeatedly during trial, immediately

before the judge instructed him that he must respond.       See

Commonwealth v. Borans, supra at 458-459.      In these circumstances,

Sheehan's testimony "was not so freely and voluntarily given as to

effect a waiver of his privilege on later questioning."       Taylor v.

Commonwealth, supra at 193.   See Commonwealth v. King, 436 Mass. 252,

259 (2002);9 Commonwealth v. Koonce, 418 Mass. 367, 378 (1994).


     9
      In Commonwealth v. King, 436 Mass. 252, 259 (2002), we described
the doctrine of waiver by prior testimony as follows:

     "[T]he doctrine of waiver by prior testimony . . . is based on
     two pragmatic ramifications of the witness's prior voluntary,
     but potentially incriminating, testimony. One is that 'when a
     witness has freely testified as to incriminating facts,
     continued testimony as to details would no longer tend to
     incriminate.' [Taylor v. Commonwealth, 369 Mass. 183, 190
     (1975)]. The second rationale given in support of the doctrine
     of waiver by testimony is that 'allowing the testimony to remain
     in a witness-selected posture would result in serious, unjust
                                                                     13


Sheehan's testimony "could hardly be considered voluntary; he had

sought to claim his privilege against self-incrimination and [the

trial] judge had ruled that he had no such privilege."     Commonwealth

v. Clemente, 452 Mass. 295, 318 n.33 (2008), cert. denied, 555 U.S.

1181 (2009) (witness did not waive privilege by testifying before

grand jury where judge ruled he had no such privilege).10

                               Judgment of contempt vacated.




     distortion; and the witness, having      chosen to answer when he
     could have remained silent, "cannot      be allowed to state such
     facts only as he pleases to state, and   to withhold other facts."'
     Id., quoting Commonwealth v. Price,      10 Gray 472, 476 (1858)."
     10
       Because of our decision that the judgment of contempt should
not have entered, we need not reach the intervener's argument that
civil, rather than criminal, contempt would have been applicable in
these circumstances. We emphasize, however, that "we give wide
latitude to persons claiming privilege under the Fifth Amendment in
order to give meaning to the privilege." Commonwealth v. Corsetti,
387 Mass. 1, 9 n.11 (1982).
