Summary
In State v. Milam, 210 Miss. 13, 48 So.2d 594 (1950) there was the problem as to whether testimony of two defendants before the grand jury was given under such circumstances as to render it involuntary and therefore unusable as the basis of a criminal prosecution.
Summary of this case from Moore v. StateOpinion
No. 37595.
November 13, 1950.
1. Constitutional law — protection against compulsory self-incrimination — waiver.
The protection of important constitutional privileges such as that against compulsory self-incrimination must encompass the subtle as well as the apparent; and as it is a privilege which a person must claim or he waives it, the responsibility of the courts is to examine carefully the merits of every claim of this privilege.
2. Constitutional law — self-incrimination — testimony must be voluntarily and willingly given.
The constitutional privilege against self-incriminating evidence is intended for the protection of the witness and it is essential that the testimony shall be voluntarily and willingly given; and when a waiver has been executed by the witness the determinative factor is not whether the waiver has been free and voluntary but rather whether the testimony of the witness was of that nature.
3. Constitutional law — immunity against self-incrimination — waiver — entire situation realistically examined.
A waiver of the privilege of a witness against self-incrimination is valid only when liberty of choice has been fully accorded him and on this question the entire situation must be examined realistically to determine whether it was such as likely to exert some pressure on him.
4. Constitutional law — self-incrimination — constitutional privilege against applies to proceeding before grand jury.
The constitutional privilege against self-incrimination applies to proceedings before a grand jury or a coroner's jury as well as to those before a court.
5. Constitutional law — self-incrimination — waiver — freedom from pressure — case in point.
Defendants whose store was burglarized apprehended, without official authority, two suspects, one of whom claimed that he was assaulted by the defendants, but escaped, and the other was taken to sheriff where the detained suspect made some sort of confession and principally on the basis of the confession the defendants appeared before the grand jury seeking an indictment for the burglary when they were informed by the district attorney in the presence of the grand jurors that they could not be heard unless they signed a waiver of the privilege of immunity against self-incrimination which they thereupon signed and were then heard on their version of the affair including the events subsequent to the burglary. The defendants were indicted for the assault and battery, and on their motion to quash the indictment on the ground that it was based on their testimony before the grand jury, the trial judge held that their waiver of immunity was not free and voluntary because in the stated situation they were confronted with the likelihood that unless they signed the waiver the grand jury would infer guilt on their part: Held, that the action of the trial judge was correct.
Headnotes as approved by Ethridge, C.
On Suggestion of Error. Jan. 15, 1951 (49 So.2d 806)6. Criminal procedure — quashed indictment — new indictment.
The judgment of the trial court which merely quashed the indictment on the ground that the accused had involuntarily testified before the grand jury did not operate to acquit and discharge the accused nor render them immune from another indictment by some other grand jury before whom the accused did not appear as witnesses; and the affirmance of that judgment gave it no further or other effect.
Headnote as approved by McGehee, C.J.
APPEAL from the circuit court of Quitman County; E.H. GREEN, Judge.
T.N. Gore, Special Counsel for appellant.
The trial court seems to have had the impression that because of the fact that the Milams testified as witnesses before the grand jury under a subpoena, they were immune to prosecution under any indictment that might be returned by the grand jury. The mere fact that a witness testifies before a grand jury does not give him immunity from prosecution.
The general rule by the great weight of authority of all the courts is stated in Ex parte Montgomery, Supreme Court of Alabama, 12 So.2d 314, as follows: "There is no general immunity from prosecution for an offense to which a witness has testified before the grand jury although such testimony cannot be required under compulsion except with respect to a matter to which the witness is immune from prosecution".
Further a Vermont case reported in L.R.A. (N.S.) 1144, in case note it is stated "it is well settled that evidence which a person has voluntarily given as a witness in any case, proceeding or investigation may be used in any subsequent prosecution or proceeding against him". The above cited Vermont case and the notes referred to contain a very interesting statement of the law applicable to this case.
I also refer the Court to the reported case of State v. Lloyd, Ann. Cas. 1914 C 415, and particularly the note on page 418 of this work.
I also cite 27 A.L.R., Siklek v. Commonwealth of Virginia, the reported case commencing on page 135; and particularly the note appearing at page 147 of this volume. "By the weight of authority the testimony of the defendant before the grand jury does not invalidate his indictment, although he has been charged with the crime which is being investigated, if he testifies after being informed as to his privilege against self-incrimination". Am. Crim. Rep. 102, 12 So. 922. From State v. Donaldson, 45 La. Ann. 744, 12 So. 922, I quote, "it is not sufficient ground to quash an indictment that the indicted persons appeared before the grand jury, and were interrogated as witnesses — they having been at the time incarcerated in the jail under capiases from the recorders court; the proof discloses that at the time each was examined he was informed that he had the right to decline to make answer to such questions as might tend to incriminate himself, or render him liable to a criminal prosecution".
I desire to quote also from State v. Lloyd, Ann. Cas. 1914 C 415, as follows: "Where the accused moves the court to quash the indictment against him because based on incriminating testimony extorted from him, and on facts discovered only through the incriminating testimony, he has the burden of proving the facts, and he, if guilty, may be convicted on his own admission, voluntarily made, or on other evidence, the discovery of which is not due to self-incrimination, the indictment will not be quashed, as the rights of the accused can be protected by rulings on the evidence during the trial."
The motion to quash the indictment in this case does not state that these defendants were indicted on any information given by them, nor does it state that duress or compulsion or pressure of any nature was used on them to induce them or compel them to make any of them to the grand jury that would tend to incriminate them. Their testimony taken on a hearing of the motion shows that whatever they did or said in grand jury room was freely and voluntarily said and done by them. In fact they were anxious to testify and persistently annoyed the district attorney and the county attorney for three days, insisting on being permitted to testify before the grand jury. George H. Ethridge, Assistant Attorney General, for appellant.
There is some force in the trial judge's statement as to the influence on the minds of the appellees to the effect that if they failed to sign the waiver after it had been signed by Tiner and Chism that they would be considered by the grand jury, by reason of such refusal to have been guilty; or it would have been to their prejudice not to sign so that the whole matter could be inquired into; that the defendants thought that it was imperative that they testify and rebut the testimony that would be given by their adversaries; that the refusal to sign the waiver by the grand jury would be construed by the grand jurors as a confession of guilt and would have an adverse effect on their case.
The State appealed from the decision of the trial judge sustaining a motion to quash and there is some doubt in my mind as to whether the appeal would lie from the decision of the trial judge under the statute granting appeals to the State and municipalities in certain cases, as it seems to be a decision on a question of fact more than a question of law. Nevertheless, I submit the matter for the Court's consideration in deference to the district attorney's desire to have the question decided, and if the Court here should think proper to remand the case for trial on the indictment. See Sec. 1153 Code 1942.
If the matter is not limited by Sec. 1153 and if the question is to be considered apart from said statute, it seems to me that the decision of the trial judge is against the weight of the evidence and should be reversed.
J.J. Breland and John W. Whitten, Jr., and Denton Gore, for appellees.
The trial judge found that the waiver had been divested of its voluntary status so that the testimony subsequently given by the Milams, incriminating themselves, amounted to testimony under compulsion.
In the light of this finding of the trial judge it is perhaps presumptuous for us to point out to this Court the law with reference to the constitutional guaranty against self-incrimination and the legal requisites of a waiver of this guaranty; nevertheless, we believe it proper to cite to the Court a few authorities on this subject. Historically, we call the attention of the Court to a paragraph from an opinion in the case of Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819, p. 821, as follows: "The maxim Nemo tenetur seipsum accusare had it origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which had long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is also painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American, jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment."
It has been said that the constitutional guaranty against self-incrimination is based upon two grounds, one of policy and one of humanity: "Of policy because it would force a witness under a strong temptation to commit perjury, and of humanity because it would be to extort a confession by duress, every species and description of which the law abhors." Brown v. Walker, supra.
As an indication of the manner in which the courts have interpreted and applied these constitutional provisions, we cite the annotation in 27 A.L.R. 139 at 149.
This citation refers to many cases on this subject, including those which have been cited to the Court in the brief of the Special Prosecutor.
We quote also 38 C.J.S. 1059, as follows: "Constitutional and statutory provisions decreeing that no person in a criminal case shall be compelled to be a witness against himself are very generally held applicable to witnesses summoned before a grand jury."
We take the position, of course, that the question of whether the so called waiver executed by the Milams was, or was not, free and voluntary, has already been finally decided in favor of the Milams by the trial judge, and that the State can not appeal from this decision because it is a decision upon a question of fact; nevertheless, we wish to point out the general rule as to waivers in cases of this sort. The requisites of such a waiver are stated in 58 Am. Jur. 82. See also the case of Wood v. U.S., 128 F.2d 265, 141 A.L.R. 1318, at page 1333.
And, for a statement which bears close kinship to the case at bar, see Powell v. Commonwealth of Virginia, 189 S.E. 433, 110 A.L.R. 90, at p. 95, as follows: "Whenever the accused, because of some incident in the trial and through no fault of his, is forced to testify for fear that adverse inferences might be drawn from his failure, then he has not volunteered as a witness and has not waived his rights. Such waiver only follows where liberty of choice has been fully accorded. Miller v. Commonwealth, 153 Va. 890, 149 S.E. 459, 68 A.L.R. 1102; Price v. Commonwealth, 77 Va. 393."
In this connection see the United States Supreme Court case of Brown v. Walker, supra, wherein it is said "The legal protection of the witness against prosecution for crime disclosed by him is, in law equivalent to his legal innocence of the crime disclosed. . . ." In that same case we find this further statement: "Many links frequently compose the chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. The fact of itself might be unavailing; but all other facts without it might be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compelled to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. . . ."
In conclusion we cite for the attention of the Court an observation by Mr. Justice Bradley in the case of Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, as follows: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed . . ."
The problem here is to determine whether testimony before a grand jury by appellees, H.E. Milam and S.L. Milam, was given under such circumstances as to render it involuntary and therefore unusable as the basis of a criminal prosecution.
In September, 1948, H.E. and S.L. Milam operated a store in Crowder, Quitman County, Mississippi, which was burglarized. They suspected that Chism and Tiner had committed the crime and proceeded individually to try to arrest them on the highway. Chism escaped but Tiner was "arrested" by them and taken to the sheriff. Tiner was there questioned and made some sort of alleged confession to the sheriff, which does not fully appear in the record. Chism asserted that the Milams had committed an assault and battery upon him, and Tiner charged the Milams with kidnapping. The Milams in turn charged Chism and Tiner with burglary. Each side was making charges against the other and urging the district attorney to permit them to submit their charges to the grand jury at the approaching term of circuit court.
Chism and Tiner employed an attorney who advised the district attorney that his clients wanted to go before the grand jury, tell everything they knew about these matters, including the alleged burglary, and make complaints against the two Milams. The district attorney advised the lawyer for Chism and Tiner that they could not make any statements that might incriminate them without signing a waiver of immunity from prosecution for any charges which might grow out of their testimony, and that he wanted to prepare the waiver. This was done and it was executed by Chism and Tiner before the court convened.
Before and after the grand jury convened, the Milams also had discussed these matters with the district attorney and advised him that they wanted to appear before the grand jury and tell all that they knew about all of these matters. Hence the charge of burglary against Chism and Tiner was docketed for the grand jury to consider. The Milams were subpoenaed to appear before it. When this body assembled, the district attorney advised its members that he was going to call in the Milams and not to ask them any questions until he explained to the Milams certain things. The Milams came in the grand jury room in the presence of the grand jury, the county attorney, and the district attorney. They sat down and the district attorney showed them the written waiver which had been signed by Chism and Tiner several days earlier. He explained that these latter parties were going to tell all they knew of these matters, and that the Milams had a privilege not to testify if they did not want to. He explained that unless they signed the waiver they could not testify about anything except the burglary. There is some dispute in the record about this, but for the purposes of this opinion we will assume that they were advised that they could testify about the burglary without signing a waiver. However, it was in fact almost impossible for the appellees to separate their testimony about the burglary from that about the assault and battery and kidnapping. Apparently the only evidence of the burglary was the alleged confession, which was claimed to have been obtained from Tiner as a result of the alleged assault and battery.
The Milams then stated that they wanted to tell all they knew about all of these matters, and in the presence of the grand jury they then signed the same waiver which Chism and Tiner had executed at an earlier date. At that time they had not retained an attorney to represent them.
They then proceeded to narrate separately their versions of these various events. Subsequently the Milams were indicted for assault and battery on Chism. They moved to quash this indictment on the ground that it was based upon their testimony before the grand jury and that such facts so acquired could not be the subject of the charges, because they had a constitutional immunity against self-incrimination, under Section 26 of the Mississippi Constitution. Section 26 provides that in all criminal prosecutions the accused "shall not be compelled to give evidence against himself. . . ." The trial judge sustained a motion to quash the indictment on the ground that the calling of these defendants before the grand jury and informing them that their adversaries had signed a waiver and would testify divested the waiver of its voluntary status. He held that the defendants deemed that it was imperative that they testify before the grand jury under these circumstances and refute the testimony that would be given by their adversaries, and that the Milams thought that their refusal to sign the waiver in the presence of the grand jury would be construed by the grand jurors as a confession of guilt and would have an adverse effect on their case. From this action, the State appealed, under the authority of Mississippi Code of 1942, Section 1153.
We believe that there was ample evidence in the record and in the entire context of the situation to sustain the finding of the trial judge that the execution of the waiver and the testimony of the defendants were involuntarily given within the terms of their constitutionally protected rights. The State's attorneys acted manifestly in a spirit of fairness toward the appellees and advised them orally of their rights before they signed the waiver and testified. However, the entire situation itself must have exerted a strong pressure on appellees to do this. The grand jury room, and its inquisitorial functions are things of considerable mystery and power to the average citizen. These men had been subpoenaed. They had no attorney, and they had not heard anything about the need to execute a waiver of immunity before they testified. Apparently the first they heard about it was when they came into the presence of the grand jury. It was trying to get the facts. If appellees refused to testify and relied on their privilege, they must have thought that the grand jury would infer guilt on their part. They further stated that they had no understanding of what the waiver of immunity meant. Under such psychological pressure of events they signed the waiver and testified as to all charges.
The trial judge who heard the testimony and observed the witnesses was justified in finding as he did that such circumstances deprived the testimony of appellees of its voluntary status. Certainly we cannot say that he was manifestly wrong. (Hn 1) The protection of important constitutional privileges such as that against compulsory self-incrimination must encompass the subtle as well as the apparent. It is the responsibility of the courts to examine carefully the merits of every claim of this privilege. It is a privilege which a person must claim or he waives it. Steele v. State, 1899, 76 Miss. 387, 393, 24 So. 910; Church v. State, 179 Miss. 440, 176 So. 162; Brown v. State, 1914, 108 Miss. 46, 66 So. 288; Spight v. State, 1919, 120 Miss. 752, 83 So. 84. Yet the "better practice" is for him to be advised of his privilege in such a manner and under such circumstances that he may knowingly and voluntarily omit claiming it. Ivy v. State, 1904, 84 Miss. 264, 36 So. 265; Wigmore's "option of refusal" should be consciously and voluntarily unexercised. 8 Wigmore, Evidence, Section 2268 (3d Ed. 1940). Some courts even go so far as to hold that where a party was subpoenaed before a grand jury and testified voluntarily without claiming the privilege, his testimony is immune from use in a later prosecution, even in the absence of a statute expressly granting such immunity. Doyle v. Wilcockson, 1918, 184 Iowa 757, 169 N.W. 241.
(Hn 2) Such constitutional provisions granting witnesses a privilege from giving self-incriminating evidence are intended for the protection of the witness and have no proper application when the witness is not in danger of actual conviction. There are many statutes providing that such a witness is entitled to the immunity coextensive with that secured to him by the Constitution, and that thereby his testimony may be required. There are several Mississippi statutes granting such immunity where evidence has been given by an accused with reference to certain types of crimes. Mississippi Code 1942, Sections 2527, 2529, 2530, and 2531. However, these statutes are not applicable to the present situation.
The essential thing is that the testimony be voluntarily and willingly given. The turning point here is not whether the waiver but rather the testimony of appellees was of that nature. The two are interrelated, in that they both reflect the coercive effect of the situations at that time, but the motivation of appellees' testimony is the determining factor. If they had executed the waiver out of the presence of the grand jury, and with knowledge of their rights and had then testified, the improper motivation may have been absent.
(Hn 3) The courts have recognized realistically and for a long time this situation-type of pressure on a witness. There apparently have not been any cases involving the particular facts of this case, but analogous to it in this sense is the almost unanimous agreement that in the trial of a criminal case it is improper for the prosecuting attorney or the court in the presence of the jury to call upon the defendant or his counsel to produce a document as being in his possession. See note, 110 A.L.R. 101 (1937). In Powell v. Commonwealth of Virginia, 1937, 167 Va. 558, 189 S.E. 433, 436, this occurred, for example, and the Court held that "Whenever the accused . . . is forced to testify for fear that adverse inferences might be drawn from his failure, then he has not volunteered as a witness and has not waived his rights. Such waiver only follows where liberty of choice has been fully accorded".
The same type of protection should be applicable to testimony in grand jury proceedings. Wigmore says that "the protection . . . extends to all manner of proceedings in which testimony is to be taken . . . it therefore applies to . . . investigations by a grand jury. . . ." 8 Wigmore, Evidence, pages 325-326, footnote 12. Although a statute granted immunity in Fine v. State, 1929, 112 Tex.Crim. R., 18 S.W.2d 156, the factual situation otherwise was similar to the present one. It is well settled in Mississippi and elsewhere that (Hn 4) the constitutional privilege against self-incrimination applies to proceedings before a grand jury, or a coroner's jury, as well as to those before a court. 5 Mississippi Digest, Criminal Law, 42; Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.
(Hn 5) For the above reasons the action of the trial judge in sustaining the motion to quash the indictment is hereby affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is affirmed.
Kyle, J., took no part in the consideration and decision of this case.
ON SUGGESTION OF ERROR.
In the suggestion of error filed by the district attorney there is much concern therein expressed that our decision heretofore rendered in this cause has "given freedom from prosecution to the perpetrators of a serious crime". The appeal was from a judgment of the trial court which quashed the indictment against the appellees on the ground that they had testified before the grand jury under such circumstances as to render their action in so doing not altogether voluntary. (Hn 6) The judgment of the trial court merely quashed the indictment and granted the State an appeal; it did not acquit and discharge the defendants. We affirmed that judgment, thereby holding that the appellees were immune from prosecution under the indictment returned by the grand jury before whom they testified, and we did not hold that they would be immune from prosecution under an indictment by some other grand jury before whom they may not appear as witnesses to testify.
Section 1153, Code of 1942, provides that: "The state . . . may prosecute an appeal from a . . . judgment sustaining . . . a motion to quash an indictment, . . .; but such appeal shall not bar or preclude another prosecution of the defendant for the same offense." We held in the former opinion that Sections 2527, 2529, 2530 and 2531, Code of 1942, granting immunity are not applicable to the present situation, and no other statute is called to our attention either by the prosecution or the defense that would grant permanent immunity from prosecution for the offense here charged if and when an indictment is returned on testimony before a grand jury other than that of the accused offenders.
Suggestion of error overruled.