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ANTHONY CRUZ v. SUPERIOR COURT,

JUDICIAL DISTRICT OF DANBURY

(AC 37816)

DiPentima, C. J., and Mullins and Norcott, Js.

Argued December 7, 2015—officially released March 1, 2016

(Appeal from Superior Court, judicial district of

Danbury, Pavia, J.)

Jennifer B. Smith, with whom, on the brief, was

Walter C. Bansley IV, 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.
Opinion

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 selfincrimination 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 errorfrom 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

conductis 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 selfincrimination 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. 444–45.

‘‘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. 453. In Kastigar, the United

States Supreme Courtrejected 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

orindirectly derived from such testimony or otherinformation) is consonant with Fifth Amendment standards.

We hold that such immunity from use and derivative

use is coextensive with the scope ofthe 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, 453.

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, supra, 406 U.S. 453, therefore controls:

‘‘[I]mmunity 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 FifthAmendment privilege.’’ Id. Because the plaintiff received transactional

immunity, which is even broader than use immunity,

he no longer had a privilege not to testify against himself. His refusal to do so was therefore ‘‘legally susceptible of constituting a contempt . . . .’’ (Internal

quotation marks omitted.) Martin v. Flanagan, supra,

259 Conn. 494.

The plaintiff nonetheless argues that transactional

immunity was not coextensive with his privilege against

compulsory self-incrimination because transactional

immunity did not protect him from the risk that his

testimony at the trial might be used to impeach him in

his subsequent trial on his petition for a writ of habeas

corpus. We disagree for the following reasons. First, as

we stated previously in this opinion, to overcome the

privilege requires only that use immunity be granted.

Kastigar v. United States, supra, 406 U.S. 453. The

plaintiff here received transactional immunity, which is

even broader than use immunity. Second, the privilege

against compulsory self-incrimination does not protect

against the noncriminal consequences of incriminating

testimony: ‘‘This Court has never held . . . that the

Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony. Such a requirement would be inconsistent with the principle that the

privilege does not extend to consequences of a noncriminal nature, such as threats of liability in civil suits,

disgrace in the community, or the loss of employment.’’

United States v. Apfelbaum, 445 U.S. 115, 125, 100 S.

Ct. 948, 63 L. Ed. 2d 250 (1980). Impeachment as a

witness in a civil proceeding, such as a trial on a petition
for a writ of habeas corpus, is a noncriminal consequence, to which the protections of the privilege against

compulsory self-incrimination axiomatically does not

apply.

The plaintiff also claims that the trial court erred by

finding him in 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. The plaintiff attempts to distinguish his own

case from two cases in which the plaintiffs had outbursts or otherwise interrupted the proceedings

through boisterous conduct. See Hardy v. Superior

Court, supra, 305 Conn. 824; Brown v. Regan, 84 Conn.

App. 100, 851 A.2d 1249, cert. denied, 271 Conn. 926,

859 A.2d 577 (2004). The plaintiff’s argument fails

because his attempt to distinguish these cases from his

own shows only that there are multiple means to commit the offense of criminal contempt. The cases cited

by the plaintiff illustrate one such means. The plaintiff’s

own case illustrates another. ‘‘[General Statutes] § 51-33

and its predecessors merely codify the court’s inherent

common law power to punish all contempts committed

in its presence, including a refusal to testify.’’ (Emphasis added.) Ullmann v. State, 230 Conn. 698, 705, 647

A.2d 324 (1994). A witness’ unjustified refusal to testify

‘‘affront[s] the dignity and authority of the court.’’ Id.,

707. Accordingly, as is the case with a profane outburst,

a refusal to testify may be punished as criminal

contempt.

Because the plaintiff received an adequate grant of

immunity, the court properly found him in contempt

because the grant of immunity removed his fifth amendment privilege against compulsory self-incrimination

and thereby rendered his refusal to testify legally susceptible of constituting contempt.

The writ of error is dismissed.

In this opinion the other judges concurred.

1 General Statutes § 54-47a provides in relevant part: ‘‘(a) Whenever in

the judgment of . . . a state’s attorney . . . the testimony of any witness

or the production of books, papers or other evidence of any witness (1) in

any criminal proceeding involving . . . any . . . class A, B or C felony or

unclassified felony punishable by a term of imprisonment in excess of five

years for which the . . . state’s attorney demonstrates that he has no other

means of obtaining sufficient information as to whether a crime has been

committed or the identity of the person or persons who may have committed

a crime, before a court . . . of this state . . . is necessary to the public

interest . . . the state’s attorney . . . may, with notice to the witness, after

the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce

evidence subject to the provisions of this section.

‘‘(b) Upon the issuance of the order such witness shall not be excused

from testifying or from producing books, papers or other evidence in such

case or proceeding on the ground that the testimony or evidence required

of him may tend to incriminate him or subject him to a penalty or forfeiture.

No such witness may be prosecuted or subjected to any penalty or forfeiture

for or on account of any transaction, matter or thing concerning which he

is compelled to testify or produce evidence, and no testimony or evidence

so compelled, and no evidence discovered as a result of or otherwise derived

from testimony or evidence so compelled, may be used as evidence against
him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or

producing such evidence. . . .’’

2 The plaintiff also claimed in his brief that statutory transactional immunity was insufficient to protect his privilege against self-incrimination

because it would not protect him from a subsequent prosecution for perjury

in connection with his trial testimony, but at oral argument before this court,

the plaintiff conceded that this argument is precluded by precedent. See

United States v. Apfelbaum, 445 U.S. 115, 117, 100 S. Ct. 948, 63 L. Ed. 2d

250 (1980).

3 The record provided does not make clear whether the plaintiff agreed

to testify against his codefendant as part of a plea bargain, and if so, whether

the substance of the plaintiff’s testimony would have affected him in any

way. The plaintiff’s attorney did, however, refer to the fact that the plaintiff

‘‘bargained for’’ his sentence and that ‘‘that bargain [was] completely gone’’

when the plaintiff refused to testify. The prosecutor similarly remarked

upon the plaintiff’s plea agreement.

4 Our Supreme Court has ‘‘disavow[ed] the obscure and seemingly anachronistic proposition that . . . [i]n a review of summary criminal contempt,

[our] inquiry is limited to a determination of the jurisdiction of the court

below,’’ purportedly embracing only these three questions. Hardy v. Superior Court, supra, 305 Conn. 833. The Supreme Court did not specifically

define the new scope of review on writs of error brought from judgments

of criminal contempt, but the court made clear that such review extends

at least to ‘‘procedural error . . . .’’ Id. Because the parties agree, however,

that the inquiry in this case reaches only the question of whether the plaintiff’s conduct was legally susceptible of constituting a contempt, we need

not examine the new scope of review.

5 Transactional immunity, which affords ‘‘full immunity from prosecution

for the offense to which the compelled testimony relates,’’ logically encompasses use and derivative use immunity. Kastigar v. United States, supra,

406 U.S. 453.

6 The plaintiff refers, in passing, to article first, §§ 8 and 9, of the Connecticut constitution, but because he does not provide any separate analysis of

the state constitutional issues, we do not address them here. See State v.

Peeler, 271 Conn. 338, 432 n.79, 857 A.2d 808 (2004), cert. denied, 546 U.S.

845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).