People Ex Rel. Losavio v. J. L.

580 P.2d 23, 195 Colo. 494, 1978 Colo. LEXIS 665

• Court: Supreme Court of Colorado
• Decided: June 5, 1978
• Docket: 27933, 27892
• Status: Published

Opinions

MR. JUSTICE ERICKSON

delivered the opinion of the Court.

This appeal was taken pursuant to the provisions of section 16-12-102, C.R.S. 1973. The district court, in construing section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.), found that portion of the statute unconstitutional which provides that “an attorney present in the grand jury room shall take an oath of secrecy.” We reverse the trial court.

The issues in this case involve the constitutionality of section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.):

“(d) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.”

A close reading of section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.), reveals that the General Assembly intended to expand the protections afforded witnesses before grand juries, and, at the same time, to insure the continued secrecy of the grand jury process. The statute grants grand jury witnesses the right to have counsel present in the grand jury room during questioning and extends that right to all grand jury witnesses, including those financially unable to retain private counsel. However, in provisions designed to preserve the secrecy of the grand jury, attorneys present in the grand jury room are required to take the traditional oath of secrecy and are prohibited from providing counsel to more than one witness in a single criminal investigation, except with the permission of the grand jury.

The trial court held that the attorney’s oath requirement contained in section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.), was constitutionally infirm on three grounds. First, the oath requirement was held to be violative of the equal protection clause of the Fourteenth Amendment. Secondly, the provision was held to violate a grand jury witness’ right to the effective representation of counsel of his own choice. And finally, the oath requirement was declared to be overbroad in violation of due process guarantees.

Before addressing the trial court’s conclusion, we are confronted with a threshold question concerning the possible existence and extent of a grand jury witness’ right to counsel prior to the enactment of section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.). This inquiry is crucial to a proper determination of this case, in light of the fact that the trial court implicitly assumed that the prior practice of permitting grand jury witnesses to absent themselves during questioning to consult with counsel outside the confínes of the grand jury room remains available.

Under well-established principles of constitutional law, grand jury witnesses cannot insist upon the presence of counsel in the grand jury room. United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); People v. Downer, 192 Colo. 264, 557 P.2d 835 (1976). In United States v. Mandujano, supra, the plurality pointed out that:

“Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play. . . .”

The established practice of permitting access to counsel also lacks a constitutional foundation. In United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972), the court rejected an indigent witness’ contention that he was entitled to appointed counsel outside the grand jury room:

“We deal first with the claim to right of counsel. First, it is clear there is no right to counsel for witnesses appearing before a grand jury. In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376, 380 (1957). Daniels concedes as much, but argues that when an indigent witness is advised that he may have an attorney present, he must also be advised that if he is unable to provide his own counsel, one will be appointed for him free of cost. There is simply no such requirement. The need to advise a defendant of his right to appointed counsel arises only at certain critical stages of criminal proceedings. Daniels was not under indictment when he appeared; he was only a witness. Merely because a grand jury or other administrative body has chosen to permit a witness to retain his own counsel is not controlling.” (Footnote omitted.)

Several courts, however, have recognized the accepted practice of permitting grand jury witnesses access to counsel outside the grand jury room and have incorrectly referred to such an opportunity as a “right.”¹ E.g., United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S.Ct. 1476, 22 L.Ed.2d 764 (1969); United States v. De-Sapio, 299 F.Supp. 436 (S.D.N.Y. 1969).

The inescapable conclusion required by the established case law is that courts have chosen to afford grand jury witnesses the opportunity to consult with an attorney outside the grand jury room concerning his privilege against self-incrimination. See Silbert, Defense Counsel in the Grand Jury — The Answer to the White Collar Criminal’s Prayers, 15 Am.Crim.L.Rev. 293 (1978). The established practice reflects a reasonable and workable accommodation of the traditional role of the grand jury and the interest of a witness to obtain protection against compulsory self-incrimination in the absence of a legislative enactment.

Close scrutiny of the various provisions of section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.), reveals that the legislature intended to abolish the established practice and substitute a system which expands the protections afforded grand jury witnesses while insuring continued efficacy of the grand jury process. The Colorado statute requires that attorneys take an oath of secrecy and prohibits such attorneys from representing more than one witness in a single criminal investigation without grand jury permission. Nothing is more obvious than that the purposes to be served by the statute could be routinely evaded if attorneys were permitted to choose to remain outside the grand jury room and avoid the statute’s various provisions relating to witness’ counsel. We conclude, therefore, that the legislative enactment of comprehensive provisions concerning the right of counsel to appear in the grand jury room negates the assumption that the prior practice continues to exist as an alternative. No longer is a witness permitted to leave the grand jury room to consult counsel after the grand jury asks a potentially incriminating question. The statutory procedure is intended to not only protect the rights of the witnesses that appear before the grand jury, but is also directed at conservation of the time of the grand jury. By affording every witness the right to counsel in the grand jury proceeding, the General Assembly has provided a means for protecting the constitutional rights of every witness, while avoiding the delay occasioned by the witness leaving the grand jury room to consult with counsel.

I.

Equal Protection

The trial court’s conclusion that the oath requirement violated rights to equal protection under the Fourteenth Amendment to the United States Constitution was grounded in the incorrect assumption that counsel could refuse to take the oath and provide counsel outside the confines of the grand jury room. Based upon that assumption, the trial court found that counsel physically present inside the grand jury room were impermissibly treated differently than attorneys who provided counsel outside the grand jury room. Absent a rational basis for the classification, the court concluded that equal protection guarantees were violated.

The fallacy of the court’s analysis rests upon its assumption that the prior practice continues as an alternative to the legislative scheme. It does not. Consequently, the statute does not create a classification subject to challenge under the equal protection clause.

II.

Choice of Counsel

The trial court did not expressly hold that the prohibition against multiple representation contained in section 16-5-204(4)(d), C.R.S. 1973 (1977 Supp.), was unconstitutional. It did, nonetheless, endorse the argument that the oath requirement precluded an attorney from representing more than one witness before a particular grand jury investigation and, therefore, infringed upon the witness’ right to counsel of his own choice. We disagree.

It is well-established that a defendant’s choice of retained counsel should not be unnecessarily obstructed. United States v. Seale, 461 F.2d 345 (7th Cir. 1972); United States v. Sheiner, 410 F.2d 337 (2d Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969). The right to counsel guaranteed by the Sixth Amendment, however, does not include an absolute right to counsel from a particular lawyer. United States v. Poulack, 556 F.2d 83 (1st Cir. 1977), cert denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); United States v. Robinson, 553 F.2d 429 (5th Cir. 1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 761 (1978); United States v. Bernstein, 533 F.2d 775 (2d Cir. 1976), cert. denied, 429 U.S. 998,_S.Ct._,_L.Ed.2d _, (1978); Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). The court in Carey v. Rundle, supra, set forth the relevant consideration:

“Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice. . . .”

The danger inherent in multiple representation of grand jury witnesses directly implicates society’s interest in grand jury secrecy and effectiveness. As a practical matter, attorneys will rarely be able to totally eliminate what has been discovered in a prior grand jury appearance when offering counsel to a subsequent witness. Successive representation of various witnesses in a single criminal investigation will inevitably result in the accumulation of knowledge which is helpful to the witness who is called to testify last. No grand jury witness, however, is entitled to be furnished with information to assist him in the evasion of issues or the concealment of facts.

The Pennsylvania Supreme Court recognized the potential impairment of grand jury secrecy which is involved in multiple representation in Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), affirmed on reargument, Pa., 352 A.2d 11 (1975), appeal dismissed and cert. denied, 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 94 (1976):

“It is also manifest in the order of the supervising judge that no two of the subpoenaed witnesses who are parties to this petition may be represented by the same counsel. This portion of the order is essential to secure the secrecy of the grand jury proceeding. We do not mean to imply that multiple representation will never be tolerated at the grand jury level. Here, however, where each witness was a potential defendant, and the Court received information that the testimony of each officer might be expected to incriminate one or more of the other witnesses, and where the extent of the possible multiple cross-involvement in criminal activity is known to the Court but hidden from the individual witnesses by the requirements of secrecy, it is inappropriate for the supervising judge to permit multiple representation.”

Recent court decisions which have upheld the disqualification of an attorney who has sought to represent more than one witness in a single grand jury investigation have been based upon a balancing of the interests of the witness in representation before the grand jury and society’s interest in effective grand jury investigations. In re Investigation Before the February, 1977, Lynchburg Grand Jury, 563 F.2d 652 (4th Cir. 1977); In re Gopman, 531 F.2d 262 (5th Cir. 1976); Pirillo v. Takiff, supra; see Note, Supervising Multiple Representation of Grand Jury Witnesses, 57 B.U.L.Rev. 544 (1977). The court, in In re Investigation Before the February, 1977, Lynchburg Grand Jury, supra, determined that the balance may favor the denial of multiple representation in a particular case:

“On the whole case, we think there is a conflict of two principles. The first one is the entitlement of the witnesses to representation by an attorney in grand jury proceedings whether as a matter of federal procedural law or constitutional right. The second is the right of the grand jury to pursue its investigation functions, which includes the right of the public to every man’s testimony. And not to be forgotten is the right of the courts to control their own officers, the attorneys. ‘When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent.’ Mandujano, 425 U.S. at p. 590, 96 S.Ct. at p. 1783. (Mr. Justice Brennan concurring and quoting from United States v. Burr, 25 Fed.Cas. pp. 38, 39, No. 14692 (e) (C.C.Va. 1807)). We think when a conflict of interest appears from the record, as it does here, which may affect the grand jury’s investigative function and may deprive the public of the testimony of a witness, that the district court, in its discretion, may take appropriate action to remove the conflict, which is all the district judge did in this case. And we think this may be done although it may deprive a witness of a particular lawyer. It does not deprive him of the right to be represented at all, and so both principles are preserved as well as may be.”

Our General Assembly, confronted with the potential detrimental impact of multiple representation upon grand jury secrecy and efficacy, effected a reasonable accommodation of the various interests. All witnesses before a grand jury are now statutorily entitled to counsel, although not necessarily the advice of a particular attorney. No attorney who provides counsel in the grand jury room, however, may represent more than one witness in a single investigation without grand jury permission. The prohibition against multiple representation was intended to preserve the secrecy and effectiveness of the grand jury process and was a constitutionally permissible limitation of the right to counsel.

III.

Due Process

The third ground for the trial court’s decision was that the oath requirement violated due process protections. We have previously held that a statute which bears no rational relationship to the legislative end sought to be achieved violates due process and is unconstitutional. People v. Taylor, 189 Colo. 202, 540 P.2d 320 (1975). Moreover, a statute must be narrowly drawn to effect the legislative purpose and must not be overbroad. See People v. Von Tersch, 180 Colo. 295, 505 P.2d 5 (1973).

In United States v. Amazon Industrial Chemical Corp., 55 F.2d 254 (D.Md. 1931), the court articulated the following reasons for grand jury secrecy:

“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.”

See also Pittsburg Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); In re Biaggi, 478 F.2d 489 (2d Cir. 1973).

We find that the statutory oath requirement is rationally related to further the legitimate interest in grand jury secrecy. All attorneys must take the oath prior to being allowed to provide counsel to a witness. The statute simply extends the general rule that all persons associated with the grand jury process be sworn to secrecy. See Crim. P. 6.2, 6.3.

Similarly, the oath requirement does not proscribe constitutionally protected rights. We have not been cited any case which holds that the interest in grand jury secrecy is superceded by free speech considerations. Consequently, we find the trial court’s conclusion without merit.

Accordingly, the ruling is reversed.

MR. CHIEF JUSTICE PRINGLE concurring in part and dissenting in part.

MR. JUSTICE GROVES and MR. JUSTICE CARRIGAN dissenting.

1 The argument has been advanced that Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), provide a legal and conceptual basis to support a constitutional right to counsel in the grand jury context. See Hixson, Bringing Down The Curtain on the Absurd Drama of Entrances and Exits — Witness Representation in the Grand Jury Room, 15 Am.Crim.L.Rev. 307 (1978); Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 189 (1967). See generally, National Lawyers Guild, Representation of Witnesses Before Federal Grand Jury §7.5 (rev. 2d ed. J. Reif 1977).