Commonwealth v. Viust (Lawyers Weekly No. 11-120-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑344 Appeals Court COMMONWEALTH vs. JOHN A. VIUST, JR. No. 12‑P‑344. Barnstable. November 7, 2012. ‑ September 30, 2013. Present: Trainor, Agnes, & Sullivan, JJ. Contempt. Practice, Criminal, Contempt. Constitutional Law, Self‑incrimination. Witness, Self‑incrimination. Due Process of Law. Adjudication of contempt in the Superior Court Department by Robert C. Rufo, J. Robert Herrick for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. AGNES, J. During the murder trial of Robert B. Vacher, John A. Viust, Jr., was called by the Commonwealth as a witness. Viust had the assistance of counsel. After hearing from Viust’s counsel, the judge explained the law to Viust, and warned him that he would be found in contempt if he did not testify. Viust refused to testify. The judge found him in summary contempt under Mass.R.Crim.P. 43, 378 Mass. 919 (1979) (rule 43). For the reasons that follow, we affirm the summary criminal contempt finding. Background. Vacher’s trial began on November 7, 2011. On November 17, 2011, the Commonwealth called Viust as a witness. Viust had concerns whether his testimony would incriminate him, and the judge appointed counsel for him. Outside the presence of the jury, the judge conducted an in camera hearing in accordance with Commonwealth v. Martin, 423 Mass. 496, 504-505 (1996), and found that Viust had a valid basis for an assertion of the Fifth Amendment to the United States Constitution privilege. At the Commonwealth’s request, the judge granted Viust “immunity from criminal prosecution.“ The judge thoroughly explained the scope of Viust’s immunity, and told Viust he would be ordered to testify. The judge carefully explained that if Viust refused to testify, he would be violating a direct order of the court, and he could suffer further incarceration above and beyond the sentence he was currently serving. The judge formally instructed Viust as follows: “I’m now ordering you to testify in the matter of Commonwealth versus Robert Vacher.” Viust confirmed that he understood this, but stated his intention to violate a direct order of the court and not testify. The judge repeated that he would hold Viust in contempt if he refused to testify. When Viust persisted in his position, the judge found him in summary contempt under rule 43. On December 1, 2011, the judge held a […]