Cruz v. Superior Court

163 Conn.App. 483

136 A.3d 272

Anthony CRUZ

v.SUPERIOR COURT, Judicial District of Danbury.

No. 37816.

Appellate Court of Connecticut.

Argued Dec. 7, 2015.

Decided March 1, 2016.

Jennifer B. Smith, with whom, on the brief, was Walter C. Bansley IV, New Haven, for the plaintiff in error.

James A. Killen, senior assistant state's attorney, with whom, on the brief, was Stephen J. Sedensky III, state's attorney, for the defendant in error.

DiPENTIMA, C.J., and MULLINS and NORCOTT, Js.

NORCOTT, J.

The primary issue raised in this writ of error is whether the trial court erred by holding the plaintiff in error (plaintiff) in criminal contempt of court for invoking his fifth amendment privilege against self-incrimination and refusing to testify despite a grant of transactional immunity under General Statutes § 54–47a.¹

The plaintiff was convicted of criminal contempt in violation of General Statutes § 51–33a and sentenced to six months imprisonment, to be served consecutively to a sentence of seven years and five months imprisonment, followed by five years of special parole, that he already was serving after having pleaded guilty to other charges. The plaintiff's principal claim on appeal is that his conviction for criminal contempt violated his fifth amendment privilege against self-incrimination because the transactional immunity granted to him under § 54–47a would not protect him from impeachment through his trial testimony at any subsequent trial on his petition for a writ of habeas corpus.² The plaintiff further claims that the court erred by finding him in criminal contempt because his conduct was not directed against the dignity and authority of the court, and it did not obstruct the orderly administration of justice. We disagree and, accordingly, dismiss the writ of error.

The following facts, either found by the court or undisputed in the record, are relevant to our disposition of the plaintiff's claim. The plaintiff originally was charged along with a codefendant in connection with plans to commit a burglary. The plaintiff subsequently pleaded guilty to those charges and was serving his sentence when called as a witness for the state during the trial of his codefendant.³ The plaintiff informed his attorney at the courthouse that he would not testify. The court ordered the plaintiff to testify following a grant of statutory transactional immunity. After having been canvassed by the court and advised by his attorney of the potential consequences of continuing to refuse to testify, he nevertheless refused to answer all questions asked of him by the state. All of these events occurred in the court's presence, while it was in session. The court found that the plaintiff's behavior “affected the administration of justice with regard to the court proceeding and the trial that [was] at hand....” Accordingly, the court found the plaintiff in criminal contempt of court and sentenced him to six months imprisonment, to be served consecutively to the sentence he was serving for the charges to which he had pleaded guilty. When the court asked the plaintiff's counsel to explain why the plaintiff should not be held in contempt, the plaintiff's counsel argued unsuccessfully that the immunity granted the plaintiff did not protect him adequately from self-incrimination because it exposed him to the risk of impeachment at the pending trial on his habeas corpus petition. The plaintiff brought this writ of error from the court's judgment of criminal contempt.

“Criminal contempt is conduct which is directed against the dignity and authority of the court.... Sanctions [for criminal contempt] are imposed in order to vindicate that authority.... The inherent power of the court to punish as a criminal contempt conduct that constitutes an affront to the court's dignity and authority is expressly recognized in our statutes; see General Statutes § 51–33a (a) ; and in our rules of practice. See Practice Book § 1–14.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Hardy v. Superior Court, 305 Conn. 824, 834–35, 48 A.3d 50 (2012).

Section 51–33a (a) provides that “[a]ny person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.”

The present case involves a review of a summary criminal contempt proceeding that comes before us on a writ of error, which is the sole method of review of such proceedings. See Martin v. Flanagan, 259 Conn. 487, 494, 789 A.2d 979 (2002). “The scope of our review reaches only those matters appearing as of record.”

(Internal quotation marks omitted.) Id. Our review of a judgment of criminal contempt customarily considers “three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt ... (2) whether the punishment imposed was authorized by law ... and (3) whether the judicial authority was qualified to conduct the hearing.”⁴ (Citations omitted; internal quotation marks omitted.) Id.

The parties dispute only whether the first of these three prongs was satisfied in this case. This prong, whether the designated conduct is legally susceptible of constituting a contempt, here, turns solely upon whether the plaintiff had a valid privilege against self-incrimination under the fifth amendment to the federal constitution. See id. (concluding that holding plaintiff in error in contempt improper when he had validly invoked privilege against self-incrimination). This latter inquiry turns upon whether the plaintiff received a legally sufficient guarantee of immunity from prosecution before being compelled to testify. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that granting of use and derivative use immunity is sufficient to compel testimony over claim of privilege).

The fifth amendment to the federal constitution provides, in relevant part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const.amend. V. “The privilege ... protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, supra, 406 U.S. at 444–45, 92 S.Ct. 1653. “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is 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.” Hoffman v. United States, 341 U.S. 479, 486–87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

The privilege against compulsory self-incrimination comprehended by the fifth amendment can be overcome, however, by a grant of immunity coextensive with the scope of the privilege. See Kastigar v. United States, supra, 406 U.S. at 453, 92 S.Ct. 1653. In Kastigar, the United States Supreme Court rejected a challenge to the federal witness immunity statute, 18 U.S.C. § 6002, which provides use and derivative use immunity. Id. The court reasoned: “The statute's explicit proscription of the use in any criminal case of testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to ... criminal acts. Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Id. Transactional immunity is broader than use immunity. United States v. Turkish, 623 F.2d 769, 775 (2d Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981). But Kastigar made clear that only the latter need be granted in order to overcome the privilege against self-incrimination. Kastigar v. United States, supra, at 453, 92 S.Ct. 1653.

Despite the fact that the fifth amendment privilege against self-incrimination can be overcome by use and derivative use immunity, the legislature of this state has chosen to confer upon its courts the power to compel witnesses to testify on the granting of transactional immunity in certain circumstances. See General Statutes § 54–47a. Our Supreme Court has interpreted § 54–47a to require that if a trial court grants an application under the statute, the court must order transactional immunity for the witness. Furs v. Superior Court, 298 Conn. 404, 411, 3 A.3d 912 (2010).

In this case, the court granted the plaintiff transactional immunity, satisfying both § 54–47a and the fifth amendment.⁵ The plaintiff has premised his claim on the fifth amendment alone,⁶ and the rule of Kastigar v. United States, su...