Butterfield v. State

992 S.W.2d 448, 1999 Tex. Crim. App. LEXIS 36, 1999 WL 228391

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 1999
• Docket: 881-98
• Status: Published

Opinions

OPINION

KEASLER, J.,

delivered the opinion of the Court,

in which McCORMICK, P.J., MANSFIELD, KELLER, PRICE, HOLLAND, and WOMACK, J.J., joined.

Tommy Butterfield’s stepdaughter was sexually assaulted, and Butterfield was a suspect. The State sought temporary custody of the child but she was missing. At a healing held to find the child, Butterfield was asked about her whereabouts. He invoked his Fifth Amendment privilege against self-incrimination, but the judge ordered him to answer the questions. We are asked to decide whether the State may use Butterfield’s statements at that hearing against him in a perjury prosecution. We hold that it may.

I. Factual Background

At the hearing, Butterfield was asked many questions about the location of his wife and her daughter, whether he had heard from them or knew where they were, and whether he had any means of finding them. Initially, he refused to answer all questions, choosing to “exercise [his] Fifth Amendment rights.” Then the court ordered Butterfield to answer the questions, and he agreed to answer some but not all of them. After some discussion among the lawyers and the court, the court ruled that Butterfield had to answer all the questions asked of him, which he then did.

The State subsequently indicted Butter-field for perjury based on the statements he made at that hearing. Butterfield filed a motion to suppress the statements on the grounds that they were obtained in violation of his privilege against self-incrimination. The trial court granted this motion, and the State appealed that decision.¹ The Court of Appeals affirmed, holding that Butterfield’s Fifth Amendment rights had been violated and that his statements could not be used against him in the perjury prosecution.² We granted the State’s petition for discretionary review of that decision.

II. The Governing Law

A. The Privilege

The Fifth Amendment provides that no person shall be compelled in any criminal ease to be a witness against himself.³ The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.⁴ The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself.⁵

B. Immunity

The logical corollary to a person’s Fifth Amendment right not to incriminate himself is the concept of immunity.⁶ Since the privilege against self-incrimination ceases only when liability to punishment no longer exists,⁷ without the grant of immunity, the person cannot be compelled to testify.⁸ Once a person has been granted immunity for his testimony, however, he does not have a valid basis for refusing to testify.⁹ If he nevertheless refuses to testify after having been granted immunity, he can be punished with contempt.¹⁰ Thus, immunity statutes seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.¹¹

C. Perjury

The one nearly universal exception to the scope of the immunity granted is that a witness who perjures himself while testifying under compulsion is not immune from a prosecution for perjury.¹² That the Fifth Amendment provides no protection for the commission of perjury “has frequently been cited without any elaboration as to its underlying rationale.”¹³ Requiring the testimony to be truthful does not in any way render the grant of immunity conditional, because the “law requires the answers of the witness under oath to be truthful.”¹⁴ Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings.¹⁵ Neither the text nor the spirit of the Fifth Amendment confers a privilege to lie.¹⁶

III. Analysis

A. Fifth Amendment

In this case, the trial court ordered Butterfield to answer questions, despite Butterfield’s assertion of his Fifth Amendment privilege. Neither the trial court nor the State’s attorney offered Butterfield immunity for his testimony. The State does not contest the validity of Butterfield’s assertion of the Fifth Amendment. We assume that Butterfield’s assertion was valid, since he faced liability for tampering with a government witness by secluding his wife and step-daughter.

The trial court erred in compelling Butterfield to answer the questions without granting him immunity. The grant of the immunity is the only way to compel testimony after a valid invocation of the Fifth Amendment. Therefore, the trial court violated Butterfield’s Fifth Amendment rights.

Indeed, the State concedes this much. That is, the issue the State presents which we granted for review is whether, when a witness is compelled to testify “in violation of the Fifth Amendment,” the witness’ testimony may be used against him in a perjury prosecution.

B. Use of the statements in a subsequent prosecution

The Court of Appeals similarly concluded that Butterfield’s Fifth Amendment right against self-incrimination had been violated. However, the Court then concluded that “our inquiry ends there.” We disagree. On the contrary, our inquiry has only just begun. The question remains: despite that constitutional violation, can Butterfield’s statements nevertheless be used against him in a perjury prosecution?

The Supreme Court has often approved the use of compelled testimony in later perjury prosecutions. But in each case the Court held that no Fifth Amendment violation had occurred.¹⁷ The Supreme Court has not decided whether the State can use testimony obtained in violation of the Fifth Amendment in a perjury prosecution.

We addressed a similar issue in an isolated case nearly 100 years ago. In Twiggs v. State, 75 S.W. 531 (1903), the defendant was convicted of perjury based on statements he made before the grand jury. Because he had not been informed that he was a suspect at the time of his testimony, we held that his statements before the grand jury were involuntary and could not be used against him. We re-, versed the perjury conviction. Our holding was based upon the statutory requirement that a suspect in custody be warned that his testimony could be used against him.¹⁸ But the Supreme Court reached the opposite conclusion more recently in Wong. There, the Court held that the defendant’s false testimony before the grand jury could be admitted in her perjury prosecution, despite the fact that she was unwarned of her Fifth Amendment privilege.¹⁹ The Supreme Court reasoned that, regardless of the lack of a warning, “the Fifth Amendment does not condone perjury.”²⁰ Therefore, Tvñggs has essentially been overruled by the Supreme Court.

The Supreme Court has clearly stated that the Fifth Amendment provides no protection for the commission of perjury ²¹ and confers no privilege to lie.²² The reason is that perjured testimony is an affront to the basic concepts of justice.²³ Although the Court found no Fifth Amendment violation in those cases, we believe the rationale is sound and applies equally when a Fifth Amendment violation occurs. To hold otherwise would grant an individual unbridled discretion to lie in a court of law, with no repercussions. That cannot be the purpose or intent of the Fifth Amendment.

Butterfield argues that this holding subjects him- to the “cruel trilemma” of self-accusation, perjury or contempt.²⁴ However, the Supreme Court has recently recognized that this trilemma “is wholly of the guilty suspect’s own making.”²⁵ Even the honest and contrite guilty person will not regard the third prong of the trilemma, the blatant he, as an available option.²⁶ On the contrary, Butterfield had two other reasonable options. First, he could have told the truth at the hearing, then moved to suppress his statements in any later prosecution on the grounds that they were obtained in violation of the Constitution. Second, Butterfield could have remained silent and, if the trial court held him in contempt, sought habeas relief from that contempt order.²⁷

The “cruel trilemma” which Butterfield claims he faces is no different today than it was nearly five hundred years ago, when Sir Thomas More was called upon by King Henry VIII to recognize the King as the supreme head of the Church. More, a devout Catholic who believed deeply in the supremacy of the Pope, had three options: he could renounce his own faith and recognize the King; he could tell the truth about his faith and most surely be executed; or he could remain silent. More remained silent, and risked his life by doing so. He was later beheaded for treason.²⁸

More refused to condemn himself by telling the truth, but he also refused to lie. His wife and children begged him to submit to the oath, but he refused on principle. Butterfield, on the other hand, chose to do what More would rather die than do: commit perjury. This, of course, was an option, but not one which the law will condone. The Supreme Court has repeatedly condemned the use of perjury to avoid self-incrimination. Today, we do the same.

IV. Conclusion

We conclude that, despite the violation of Butterfield’s Fifth Amendment rights, his statements can be admitted into evidence at his perjury trial. We reverse the decision of the Court of Appeals and remand this ease to the trial court.

We note that the application of Article 38.23 of the Texas Code of Criminal Procedure is not before us in this case. Although the Court of Appeals mentioned the statute in passing, neither of the parties has briefed, either in this Court or in the Court of Appeals, the applicability of that statute. Thus, we do not decide whether the outcome would be the same under a statutory analysis.

The dissent argues that we have misread the Court of Appeals’ holding. We respectfully disagree. In the “Discussion” portion of the court’s opinion, the court analyzes solely Fifth Amendment law. The court reasons that a Fifth Amendment violation occurred and that the “inquiry ends there.” The court also distinguishes Supreme Court precedent on the Fifth Amendment. Then, in the “Conclusion” portion of the court’s opinion, the court summarizes its analysis by holding that the trial court “could conclude” that the statements were suppressible. After this sentence, almost as an aside, the court states, “See ... Art. 38.23.” The court does not set out or analyze the language of Art. 38.23 or explain its impact on this case. If the Court of Appeals were relying solely on Art. 38.23, we think the court would have made some mention of that statute in the “Discussion” portion of its opinion. We do not believe the Court of Appeals will be “astounded to learn what it has held in this case.”²⁹

JOHNSON, J. delivered a concurring opinion in which PRICE, HOLLAND and WOMACK, J.J. joined. MEYERS, J. delivered a dissenting opinion.

1 . Tex.Crim. Proc.Code Ann. Art. 44.01(a)(5) (Vernon Supp.1999).

2 . State v. Butterfield, No. 03-97-00085-CR, 1998 WL 104717 Tex.App. (Austin March 12, 1998) (not designated for publication).

3 . U.S. Const, amend. V.

4 . Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972).

5 . See In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967).

6 . United States v. Apfelbaum, 445 U.S. 115, 124, 100 S.Ct. 948, 953, 63 L.Ed.2d 250 (1980) (grant of immunity must be coextensive with Fifth Amendment).

7 . Bryan v. State, 837 S.W.2d 637, 643 (Tex.Crim.App.1992).

8 . Ex parte Muncy, 72 Tex.Crim. 541, 163 S.W. 29, 38 (1913).

9 . Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App.1990); see also Ex parte Joseph, 172 Tex.Crim. 355, 356 S.W.2d 789, 791 (App.1962) (once granted immunity, witness could not decline to answer questions propounded to her).

10 . United States v. Mandujano, 425 U.S. 564, 575, 96 S.Ct. 1768, 1776, 48 L.Ed.2d 212 (1976); Ex parte Youngblood, 94 Tex.Crim. 330, 251 S.W. 509, 512 (1923).

11 . Kastigar, 406 U.S. at 445-46, 92 S.Ct. at 1656-57. See also Tex. Pen.Code §§ 43.06, 47.08, 71.04.

12 . 2 Paul H. Robinson, Criminal Law Defenses § 205(a) (1984). See also Tex. Pen.Code §§ 43.06, 47.08, 71.04.

13 . Apfelbaum, 445 U.S. at 127, 100 S.Ct. at 955.

14 . Ferrantello v. State, 158 Tex.Crim. 471, 256 S.W.2d 587, 595 (1952).

15 . Mandujano, 425 U.S. at 576, 96 S.Ct. at 1776.

16 . Brogan v. United States, 522 U.S. 398, -, 118 S.Ct. 805, 810, 139 L.Ed.2d 830 (1998).

17 . Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250; United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977); Mandujano, 425 U.S. 564, 96 S.Ct. 1768; Kastigar, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212; Glickstein v. United States, 222 U.S. 139, 32. S.Ct. 71, 56 L.Ed. 128 (1911).

18 . Twiggs, 75 S.W. at 532.

19 . 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231.

20 . Id. at 178, 97 S.Ct. at 1825.

²¹

22 . Brogan, 522 U.S. at -, 118 S.Ct. at 810.

²³

24 . Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964).

²⁵

26 . Ibid.

27 . See Collins v. Kegans, 802 S.W.2d 702, 705 (Tex.Crim.App.1991) (validity of contempt can be attacked only by way of habeas corpus).

28 . See, e.g., Robert Bolt, A Man for All Seasons (Random House 1962); www.wwlia.org/uk-more.htm.

29 . Ante, 992 S.W.2d at 449 n. 5.