State v. Terrebonne , 256 La. 385 ( 1970 )

SUMMERS, Justice.

Certiorari was granted to review the trial judge’s ruling that the testimony of a witness before the grand jury which indicted defendant was inadmissible at defendant’s trial to prove a prior inconsistent statement of that witness. After due consideration we find the ruling to be correct.

Kirby Terrebonne, Jr., was indicted by the Lafourche Parish Grand Jury on April 10, 1969 for the armed robbery of Ernest Yelverton on February IS, 1969, contrary to Article 64 of the Louisiana Criminal Code. He was arraigned and pleaded not guilty.

During the course of the trial, which followed in February 1970, the State presented its evidence and rested. The following day defense counsel presented the testimony of one witness in its entirety and then called Linda Bible Wilson. By this witness’ testimony the defense sought to establish an alibi for the accused. When the defense concluded its direct examination, the witness Linda Bible Wilson was tendered for cross-examination by the State.

While the witness was under cross-examination, the State moved that the jury be retired in order that it might present a request to the Court out of the jury’s presence. The jury was retired, and the State requested permission to use the witness’ testimony before the grand jury to show that she had given testimony under oath which was inconsistent with her testimony at the trial. It was the State’s position that the grand jury testimony would lead to the impeachment of the witness. Defense counsel objected that the proceedings of the grand jury were secret, and the objection was sustained. A bill of exceptions reserved by the State to this ruling was later perfected and formed the basis for the writ under consideration.

Defense counsel’s objection and the trial judge’s ruling were based upon Article 434 of the Code of Criminal Procedure:

Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matter occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the district attorney, or with the court.

Any person who violates the provisions of this article shall be in constructive contempt of court.

As Article 434 sets forth, grand jury proceedings in this State as a general proposition are secret. Specific safeguards to maintain this secrecy are contained in Article 431 of the Code of Criminal Procedure requiring grand jurors to take an oath to

* * * keep secret your own counsel and that of your fellows and of the state, and will not, except when authorized by law, disclose testimony of any witness examined before you, nor disclose anything which any grand juror may have said, or how any grand juror may have voted on any matter before you.

To further assure the secrecy of grand jury proceedings only certain persons specifically authorized by law may be present at its sessions; these are the district attorney and his assistants, the witnesses under examination, an interpreter and the person recording the testimony. La.Code Crim. Proc. art. 433. And a witness who is to testify before the grand jury must be administered an oath “to keep secret, except as authorized by law, matters which he learns at the grand jury meeting.” La. Code Crim.Proc. art. 440. In like manner, interpreters and persons employed to record and transcribe the testimony and proceedings are required to take an oath to “keep secret the grand jury proceedings.” La.Code Crim.Proc. art. 441.

Section 471 of Title 15 of the Revised Statutes denies the competency of grand jurors or the district attorney to testify “as to anything that took place before the grand jury during, its sessions”, but it does permit them to testify “in any prosecution for perjury or false swearing” alleged to have been committed before the grand jury.

In State v. Revere, 232 La. 184, 94 So.2d 25 (1957), in a thorough discussion of the historical background and the general concept underlying the creation and function of the grand jury, Chief Justice Fournet said:

Not only has the grand jury been, traditionally, an inquisitorial body charged with determining whether probable grounds for suspicion of a crime exists, but, from its very beginning, its sessions have been surrounded by a cloak of seclusion and secrecy that has been jealously guarded and preserved during the intervening centuries as the only means of insuring that it be permitted the freedom of action necessary for a vigorous and effective discharge of its duties. The reasons underlying this necessity for secrecy are manyfold. Among them are: (1) It promotes freedom in the disclosure of crime; (2) prevents coercion of grand jurors through outside influence and intimidation and thus permits a freedom of deliberation and opinion otherwise impossible; (3) protects the safety and freedom of witnesses and permits the greatest possible latitude in their voluntary testimony; (4) prevents perjury by all persons appearing before the grand jury; (5) prevents the subornation of perjury by withholding facts that, if known, the accused or his confederates might attempt to disprove by false evidence and testimony; (6) avoids the danger of the accused escaping and eluding arrest before the indictment can be returned; and (7) keeps the good names of the persons considered, but not indicted, from being besmirched. Thus it may be seen that the secrecy that has from time immemorial surrounded the grand jury sessions is not only for the protection of the jurors and the witnesses, but for the state, the accused, and, as has been said, for society as a whole. 232 La. at 194, 94 So.2d at 29.

Again this Court, more recently, in State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), in considering the secrecy of a witness’ testimony before the grand jury, said:

Defense counsel, while cross-examining the State’s principal witness, Frank Wilson, asked: “Did you tell the Grand Jury the same thing you’re telling this Court here today ?”

Testimony of witnesses before a grand jury is secret. La.Code Crim.Proc. art. 434. And witnesses who appear before the grand jury are required to take an oath to keep secret, except as authorized by law, matters which they learn at the grand jury meeting. La.Code Crim. Proc. art. 440. These requirements of secrecy are imposed so that those whose indictment may be contemplated will not flee, or importune the grand jury; to assure freedom in the jury’s deliberations; to deter subornation of perjury or tampering with grand jury witnesses who may testify at the trial; to encourage the free disclosure of information relative to crimes and to protect the innocent accused from disclosure of the fact that he has been under investigation. See Comment, La.Code Crim.Proc. art. 433.

To permit a review of the evidence considered by the grand jury would destroy the veil of secrecy with which the law surrounds both the proceedings and the testimony presented to the grand jury. See Comment La.Code Crim.Proc. art. 442. Having failed to establish that the question was proper under one of the exceptions to the rule of secrecy authorized by law, defendants have no right to demand disclosure of grand jury testimony. La.Code Crim.Proc. arts. 434, 440. The trial judge properly sustained the State’s objection to this question. 253 La. at 1025, 221 So.2d at 496.

The Hudson Case is ample authority to support the trial judge’s ruling. We shall, nevertheless, advert again to Article 434 of the Code of Criminal Procedure in support of the conclusion reached in this decision. It will be seen by reference to that article that there is a broad, but emphatic, requirement that “all matters” occurring before the grand jury be kept secret. The article then proceeds to provide for two general exceptions to the rule of secrecy.

The first exception, which does not concern this case, permits revelation, after indictment, to specified properly interested persons, of testimony concerning statutory irregularities in grand jury proceedings.

Under Article 124 of the Criminal Code inconsistent statements made before the grand jury and at the subsequent trial of the case constitute perjury. See Comments (d), La.Code Crim.Proc. art. 434. The second exception, in conformity with the rule of Section 471 of Title 15 of the Revised Statutes, permits disclosure of grand jury testimony to show perjury.

Thus the language of Article 434 which is pertinent to the issue before us is: “Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury.” Taken in the context of the statutes and jurisprudence to which we have alluded, we conclude that this language means that the witness’ testimony before the grand jury may be used when that witness is being prosecuted for the crime of perjury. Such a prosecution is, plainly, a separate and distinct proceeding subsequent to the trial of the case in which the witness made the contradictory statement and committed the perjury. The words “to show that a witness committed perjury” contemplate that the evidence of the inconsistent statements will be used in a prosecution after a proper charge for the specific crime. It does not mean that the district attorney may use the record of the proceeding before the grand jury to impeach a witness at the trial. To further support this view, Section 471 of Title 15 of the Revised Statutes permits grand jurors and the district attorney to testify concerning grand jury proceedings only “in any prosecution for perjury or false swearing.”

To permit a violation of grand jury secrecy for the purposes advanced here would run counter to the strongest policy consideration supporting grand jury secrecy: “to encourage the free disclosure of information relative to crime.” And it will not do to argue, as the State does, that the obligation of secrecy is no longer of importance when the indictment has been found, the indicted accused is in custody and the grand jury is finally discharged.

For the law’s concern is with the grand jury as a permanent institution and the policy considerations mentioned are to be served on a long term basis, not simply during the life of each grand jury. Thus we cannot understand how secrecy can promote the policy “to encourage the free disclosure of information relative to crime” if, upon discharge of the jury, the obligation of secrecy no longer obtains. Such a system would, in the eyes of any astute observer, render the preferred protection of secrecy a sham, and the temporary character of the veil of secrecy would, instead, do everything to discourage the free disclosure of information relative to crime at all subsequent grand jury sessions.

The view we have adopted does nothing to encourage witnesses to perjure themselves either in the grand jury session or at the subsequent trial as the argument suggests. To the contrary, false swearing remains punishable as perjury, and the record of the grand jury testimony, under the exception announced in Article 434, may be produced on the witness’ trial for perjury, not otherwise. Any extension of the exceptions to secrecy announced in Article 434 would, in our opinion, immeasurably weaken the effectiveness of the grand jury as an inquisitorial body; for it was never intended that witnesses who honestly err in their testimony before the grand jury, and who later discover the error and correct it in their testimony at the trial, should have their testimony impeached.

As this Court declared in State v. Revere, the secrecy of the grand jury must serve to protect the jurors, the witnesses, the State, the accused and society as a whole. It is inevitable that in fulfilling this role the requirements of secrecy must come in conflict with one or more of the many demands of the law. In the face of these conflicts, the tradition of the law requires that secrecy must prevail, unless it be dispensed with by a clear and specific legislative mandate.

There is no legislation requiring that grand jury secrecy be dispensed with and that testimony before that body be revealed to satisfy the requirements of Section 493 of Title 15 of the Revised Statutes dealing with impeaching the credibility of witnesses. Until the Legislature directs otherwise, we shall uphold the secrecy of the grand jury.

The State relies to a great extent upon State v. Johnson, 220 La. 170, 56 So.2d 143 (1950), to support its position. The opinion in the Johnson Case made no mention of the statutory requirement in effect at the time that “The sessions of the grand jury shall be secret * * *” La.R.S. 15:215(1951). Moreover, the Johnson Case was impliedly overruled by the decision in State v. Revere, 232 La. 184, 94 So.2d 25 (1957), when that decision declared most emphatically that the secrecy of the grand jury could not be invaded in any manner unless specifically authorized by statute. The author of the Johnson opinion, who dissented in the Revere decision, recognized the Revere Case to be “in discord with previous holdings of this Court”, obviously referring to the Johnson Case which is neither mentioned in the majority decision nor in the dissent. We think, too, that Article 434 of the Code of Civil Procedure, effective January 1, 1967, further overruled the Johnson Case when it provided only two exceptions to the rule of secrecy, failing to recognize the right to impeach a witness with grand jury testimony as one of those exceptions.

It is of assistance to note that the redactors of the Code of Criminal Procedure recognized the broader scope of the secrecy obligation under the new Code:

(b) The obligation of secrecy applies to the grand jury and “all other persons present at a grand jury meeting.” This includes the district attorney and his assistants, the stenographer or other person who records the proceedings, any interpreter, and witnesses who appear before the grand jury. The 1928 Code provisions were clear in imposing secrecy upon grand jurors, stenographers, and interpreters (Arts. 204 and 215), but there was no direct statutory imposition of secrecy upon witnesses who appeared before the grand jury. The court, however, construed the oath required of witnesses (former Art. 212), which says nothing of secrecy, and the general mandate of secrecy in former Art. 215, to require secrecy of a witness. State v. Revere, 232 La. 184, 94 So.2d 25 (1957).

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(c) The obligation of secrecy is extended (by Article 434 of the new Code) beyond the source provisions of the 1928 Code, to include all persons having confidential access to information concerning grand jury proceedings, * * * La.Code Crim.Proc. art. 434, Comment (b) and (c).

The ruling of the trial court is affirmed.