COMMONWEALTH vs. JASON J. LECLAIR & another [Note 1]

DUFFLY, J. A nonimmunized witness in a criminal trial repeatedly refused to answer questions posed by defense counsel 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

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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 that had taken place in his friend Mark Sheehan's apartment at approximately 10 A.M. that morning. [Note 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 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, [Note 4] the judge ruled that the invocation of the privilege was not valid because Sheehan

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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 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 immunizing Sheehan. [Note 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

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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. 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." [Note 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 a mistaken claim of the Fifth

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Amendment privilege, [Note 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 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

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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, 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 and of itself, preclude prosecution for possession of a controlled

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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. 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. [Note 8] See Commonwealth v. Martin, supra at 503 n.3 ("The prosecutor's denial of an intent to

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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, 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); [Note 9] Commonwealth v. Koonce, 418 Mass. 367, 378 (1994). 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. Clem-

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ente, 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). [Note 10]

Judgment of contempt vacated.