Jurisdictional Statement — Costarelli v. Massachusetts

acai f “Supreme Court. U.S.

FILED

MAY 20 1974

M CHAEL ROUDAK, JR. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

no. 7 3- F739

STEVEN COSTARELLI, Appellant

VS.

COMMONWEALTH OF MASSACHUSETTS, Appellee

ON APPEAL FROM THE MUNICIPAL COURT OF

THE CITY OF BOSTON

JURISDICTIONAL STATEMENT

Robert W. Hagopian, Esq. :

Wrentham, Mass. 02093 i

Counsel for Appellant

Tel. (617) 384-3333

INDEX

Opinion Below . . . « « © «© «© ee «

Juriediction . «sees ee ese

Questions Presented . . 2. 2. 2 e+ «© ee we ee

Statutes Involved a a oa oo on a oe ae on ee ae 3 :

Statememt Gf the Gese@ 2.1 « cts escevans &

:

The Questions are Substantial ....... 4 q

GComclusieo®. wn acest se ane we sees ecnanese F

Appendix

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A we Bietebes Tewerwwees 1 sc ce ee anes C8

B -- Record of Municipal Court of

Boston. > to ee. OSS. 6 2-2 6 2 OS 12

GC =< Betice of Appesl «1. cc tee snnes UF

ge cee, (HS rte eat rear nan Wsre ng. a me tap pe

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Berrien ss: RIEL OE POR RE Miser

TABLE OF CASES

Barker v. Wingo, 33 LEd 2nd 101

Benton v. Maryland, 89 S.Ct. 2056

Callan v. Wilson, 127 U.S. 540

Cohens v. Virginia, 6 Wheat 264

Colten v. Kentucky, 326 LEd 2d 584

Duncan v. Louisiana, 391 U.S. 145

Holliday v. State, 109 R.I. 93

Jones v. Robbins, 8 Gray 329

Kentucky v. Powers, 201 U.S. 1

Klopfer v. North Carolina, 386 U.S. 213

Largent v. Texas, 318 U.S. 418

Lemieux v. Robbins, 414 F2d 355

Mann v. Commonwealth, 271 NE 2d 331

Manns v. Commonwealth, 213 VA 322

Powell v. Texas, 392 U.S. 516

Thompson v. City of Louisville,

362 U.S. 199

United States v. Green, 355 U.S. 184

United States v. Jorn, 400 li S. 470

ii

Page

3, 4, 6

oS

TABLE OF CASES }

P

Page }

United States v. Marion, 404 U.S. 307 7 ;

-

4

Ward v. Village of Monroeville, j

34 LEd 2nd 269 ~ :

N

: p

Williams v. Florida, 399 U.S. 78

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

STEVEN COSTARELLI, Appellant

vs.

COMMONWEALTH OF MASSACHUSETTS, Appellee

ON APPEAL FROM THE MUNICIPAL COURT OF

THE CITY OF BOSTON

JURISDICTIONAL STATEMENT

Appellant appeals from his conviction from

the Municipal Court of the City of Boston, Massa-

chusetts, entered on February 27, 1974 on a

charge of unauthorized use of a motor vehicle,

and submits this statement to show that the Su-

preme Court of the United States has jurisdiction

of the appeal and that a substantial question is

presented,

TK PRE 4

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OPINION BELOW

No opinion, findings of fact, or conclusions

of law were reported by the Municipal Court of

the City of Boston.

JURISDICTION

Appellant was convicted on February 27, 1974

in the Municipal Court of Boston and notice of

appeal was filed in that court on May 16, 1974.

The jurisdiction of the Supreme Court to review

this decision by direct appeal is conferred by

28 U.6.C. Sec. 1257(2).

Appellant submits that. the Municipal Court of

tne City of Boston is a “highest court" of Massa-

chusetts within the meaning of the words in Sec.

1257. From a conviction in a criminal proceed-

ing in a district court of Massachusetts, there

is no direct appellate review, but only a trial

de novo, or collateral relief, e.g. habeas

corpus. Chief Justice Tauro recently summarized

this principle in Mann v. Commonwealth, 271 NE

26 331 (3971) at p. 333:

"In Massachusetts, the legislation

permits a de novo Superior Court

trial for the defendant in all

aspects of the case but it does —

not provide a method of reviewing

error of _law committed in the

trict Courts. See G.L. C.250 Sec.

9. It is reasonable to conclude

that the Legislature intended

that, upon appeal, the question

of guilt, the sentencing power and

all related matters ic transferred

to the Superior Court for deter-

2

mination completely divorced from the

record of the prior trial.3 3. See

Duncan v. Louisiana, 391 U.S. 145, ...

We need not speculate whether convic-

tions in the District Court resulted from

error."

LITRES aE LORE ls phen t te R

oy, the

SEF E ren Ons

The following decisions sustain the jurisdiction

of the Supreme Court to review the judgment on

direct appeal in this case: Cohens v. Virginia,

6 Wheat. 264, 375-6; Kentucky v. Powers, 301 U.S. :

1, 37-39; Largent v. Texas, 318 U.S. 418, 422; f

Thompson v. City of Louisville, 362 U.S. 199, 202; ¢

Powell v. Texas, 392 U.S. 516, 517.

QUESTIONS PRESENTED

1. Are the States bound by the federal rule

of Callan v, Wilson, 127 U.S. 540 guaranteeing

defendants a trial by jury in the first instance

when charged with an offense carrying a possible

jail sentence in excess of six months?

2. Do state two-tier trial de novo procedures

which deny a defendant a trial by jury in the y

first instance for a crime carrying a possible

prison term in excess of six months impose an

unconstitutional burden on the right to a speedy

trial and violate the double jeopardy provisions

of the Fifth Amendment? ena

—- —

STATUTES INVOLVED

Article XII of the Declaration of Rights of

the Massachusetts Constitution, Massachusetts

General Laws Ch. 263 Sec. 4, Ch. 218 Sec. 26,

Ch. 278 Sec. 2, 18, and 24, comprise the frame-

work of Massachusetts' two-tier trial de novo

criminal procedure and are set forth in the Ap-

pendix.

3

a ad ld Nal

RE EN OE Ore ce LIOR Se Re

STATEMENT OF THE CASE

A complaint was issued against appellant for

the unauthorized use of an automobile, a crimin-

al offense under M.G.L. Ch. 90 Sec. 24(2) (a)

carrying a possible two year jail sentence.! On

February 27, 1974, appellant was tried on this

charge in the Municipal Court of Boston. Appel-—

lant duly moved the trial court in writing for a

trial by jury in the first instance, asserting

that this right was guaranteed by the Sixth

Amendment pursuant to Callan v. Wilson, 127 U.S.

540 and Duncar v. Louisiana, 381 U.S. 145. The

trial court denied this motion. The government

placed its case in evidence and rested. The

appellant did not testify or present any wit-

nesses or introduce any evidence, At the con-

clusion, the trial judge found appellant guilty.

Appellant brings this appeal to vacate the con-

viction of the Municipal Court of Boston,

The federal questions underlying this appeal

were raised by appellant at his trial in the

Municipal Court of the City of Boston by his

motion for a trial by jury. In this motion, he

expressly claimed his right to a speedy trial

by jury under the Sixth Amendment citing Callan

v. Wilson, supra, Duncan v. Louisiana, supra,

Klopfer v. North Carolina, 386 U.S. 213, and

Holliday v. State, 280 A. 2d 333, and his rights

under the double jeopardy clause of the Fifth

Amendment citing Benton v. Maryland, 89 S. Ct.

2056, and United States v. Jorn, 400 U.S. 470.

The entire record of the "non-record" Munic-

ipal Court of Boston comprises the complaint

setting out the charge; appellant's written mo-

Ithe relevant part of M.G.L. Ch. 90 Sec. 24(2)

(a) is set out in the Appendix, p. ll.

4

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for a speedy jury trial in which he specifi-

cally claimed his constitutional rights; the

trial judge's written denial on the motion;

and his written guilty finding noted on the

complaint. A copy of the entire record is set

forth in Appendix pp. 11-15.

THE QUESTIONS ARE SUBSTANTIAL

1. Massachusetts criminal procedure comprises

a two-tier trial de novo system. Defendants, for

the most part,2 are charged initially upon a

complaint in the non-record district court

where they cannot obtain a trial by jury. Upon

a conviction in the district court, a defendant

cannot obtain any direct appellate review, 3 but

has an automatic right to "appeal" his convic-

tion for a trial de novo in the Superior Court

where he may obtain a trial by tury.4 If the

defendant fails to prosecute his "appeal", the

superior court may default him and impose sen-

tence for the crime he was convicted of in the

district court by a magistrate.

*whe district courts in Massachusetts have juris-

diction over all crimes having an authorized

punishment up to five year imprisonment. See

M.G.L. Ch. 218 Sec. 26 set out in the Appendix

p. 10.

SExtraordinary writs and collateral relief invok-

ing the Supreme Judicial Court's supervisory

powers are available.

4

See M.G.L. Ch. 278 Secs. 2 and 18 set out in

the Appendix p. 10.

>See M.G.L. Ch. 278 Sec. 24 set out in the Ap-

pendix p. 10.

OTITIS BaP TaN a ar ny Be eR

- PAP Wh eed

UNV AL Aya

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“ Tres Pree) eK IEE EE

The Supreme Judicial Court of Massachusetts

held in Jones v. Robbins, 8 Gray 329, 341 that

Massachusetts' two-tier trial de novo system

does not violate Article XII of the Declaration

of Rights of the Massachusetts Constitution®

guaranteeing that no law "shall subject any

person to ... infamous punishment ...without

trial by jury" which words Chief Justice Shaw

stated were "equivalent" to the clause — "in

all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by

an impartial jury'' — in the Sixth Amendment.

In Callan v. Wilson, 127 U.S. 540, Justice

Harlan took note of Jones v. Robbins at page

553-4 and rejected its reasoning at page 556-7

by holding that the Sixth Amendment guarantee to

a trial by jury meant trial by jury in the first

instance: "Except in that class or grade of of-

ffenses called petty offenses, ...the guarantee

of an impartial jury to the accused in a crimin-

al prosecution, conducted eithe: in the name, or

by or under the authority of, the United States,

secures to him the right to enjoy that mode of

trial from the first moment, and in whatever

court he is put ontrial for the offense charged."

Duncan v. Louisiana, 391 U.S. 145, 149 bound

the states to the Sixth Amendment and by dicta,

the rule of Callan v. Wilson, supra. See Duncan

at page 148 ftn, 30, 181, 182 ftn, 21, 213. The

Rhode Island Supreme Court in Holliday v. State,

109 R.I. 93 (1971) has held unanimously that

Duncan has bound the states to the rule of Cal-

lan v. Wilson. The Supreme Court of Virginia

has held the contrary in Manns v. Commonwealth,

213 Va. 322, The issue is undecided among the

two-tier trial de novo systems of other states.

Carticle XII of the Declaration of Rights of the

Massachusetts Constitution is set out inthe Ap-

pendix p. 9.

6

ee

See ftn. 9 and 10 in Colten v. Kentucky, 32 LEd.

zd 584, 592 (1972) citing Massachusetts, Norta

Carolina, Pennsylvania. Cf. Lemieux v. Robbins,

414 F2d 353, 355 ftn. 3 (1969) noting the two-

tier procedure in Maine. See also: 5. Non-Jury

Trial for Misdemeanors Subject to De Novo Review,

Appendix to opinion of Justice Harlan, Williams

v. Florida, 399 U.S. 78, 141.

2. The companion issue presented by this ap-

peal is whether the imposition of atrial without

jury is an unconstitutional burden on the defendant's

right to a speedy trial by jury which he was un-

questionably entitled to under the Sixth Amend-

ment, The two-tier trial de novo procedure is

totally counter-productive to minimizing the

“anxiety and concern of the accused", Barker v.

Wingo, 33 LEd 2nd 101, one of the main purposes

of the speedy trial guarantee. For the defendant

who chooses not to disclose his defense, a trial

in the district court is a meaningless proceedinp,

A conviction and "appeal" from a district court

trial generates a "cloud of anxiety, suspicion

and often hostility", Barker v. Wingo, supra,

and United States v. Marion, 404 U.S. 307, 321,

and shifts the burden on the defendant to prose-

cute his “appeal'' to prove his innocence, M.G.L.

Ch. 278 Sec. 24, See Holliday v. State, supra,

alternatively holding that two-tier trial de novo

procedures violate the speedy trial provisions

of the Sixth Amendment,

Similarly, the two-tier trial de novo system

inherently violates the underpinnings of the dou-

ble jeopardy provisions of the Fifth Amendment -

"/T/he State with all its resources and power

should not be allowed to make repeated attempts

to convict an individual for an alledged offense,

thereby subjecting him to emba.rassment, expense,

and ordeal and compelling him to live in a con-

tinuing state of anxiety and insecurity, as weli

as enhancing the possibility that even though

7

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peer _

innocent he may be found guilty", United States

v. Green, 355 U.S. 184, 187-198.

Implicit in limiting "the Government to a

single criminal proceeding to vindicate its very

vital interest in enforcement of criminal laws",

United States v. Jorn, 400 U.S. 470, is limiting

it to a single proceeding which comports with con-

stitutional standards, and it is no answer on the

part of States to eventually offer the defendant

a constitutionai de novo adjudication, Ward v.

Village of Monroeville, 34 LEd 2nd 269, 272

(1972).

Since the above issues effect the administra-

tion of criminal justice in at least ten states,

and since there is a conflict between the de-

cisions of the highest court of at least two of

these states, it is submitted that the questions

presented by this appeal are substantial and of

public importance,

CONCLUSION

Appellant maintains that the Municipal Court

of the City of Boston erred in denying him a

trial by jury. Hebelieves that such a denial

violated his Sixth Amendment right to a trial

by jury and to a speedy trial, It is submitted

that the questions presented by this appeal

are so substantial to require plenary consider-

ation for their resolution,

Respectfully submitted,

_

Vert W. Hagopian, Lj

Counsel fer Appellant

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APPENDIX

Article XII of the Massachusetts Declaration of

Rights:

No subject shall be held to answer for

any crimes or offense, until the same is

fully and plainly, substantially and form-

ally, described to him; or be compelled to

accuse, or furnish evidence against him-

self. And every subject shall have a right

to produce all proofs, that may be favor-

able to him; to meet the witnesses against

him face to face, and to be fully heard in

his defense by himself, or his counsel, at

his election, And no subject shall be ar-

rested, imprisoned, despoiled, or deprived

of his property, immunities, or privileges,

put out of the protection of the law, ex-

iled, or deprived of his life, liberty, or

estate, but by the judgement of his peers,

or the law of tne land.

And the legislature shall not make any

law, that shall subject any person to a

capital or infamous punishment excepting for

the government of the army and navy, without

trial by jury.

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CMR

7 EMBO OLN TPO AET YT ee De

fhe relevant porcion of M,G.L. Ch. 218 Sec. 26

reads:

District courts shall have original ju-

risdiction, concurrent with the superior

court, of the following offenses committed

within their respective districts or other-

wise made punishable therein; all violations

of by-laws, orders, ordinances, rules and

regulations, made by cities, towns and pub-

lic officers, all misdemeanors, except li-

bels, all felonies punishable by imprison-

ment in the state prison for not more than

five years, the crimes mentioned in... .

The relevant portion of M.G.L. Ch. 278 Sec. 18

reads:

Whoever is convicted of a crime before a

district court may appeal to the superior

court, and at the time of conviction shall

be notified of his right to take such appeal.

M.G.L. Ch. 278 Sec. 2 reads:

Issues of fact joined upon an indictment

or complaint shall, in the superior court

be tried by a jury drawn and returned in the

trial of issues of fact in civil causes, un-

less the person indicted or complained

against elects tobe tried by the court as

provided by law.

M.G.L. Ch 278 Sec. 24 reads:

If the appellant fails to enter and prose-

cute his appeal he shall be defaulted on his

recognizance and the superior court may im-

pose. sentence upon him for the crime of which

he was convicted, as if he had been convicted

in said court, and if he is not them in custo-

10

my

4,

dy, may issue process to tring himinto court

to receive sentence,

The relevant portion of M.G.L. Ch. 90 Sec. 24(2)

(a) reads:

Whoever ..... and whomever uses a motor vehi-

cle without authority knowing that such use is

unauthorized shall, for the first offense be

punished by a fine of not less than fifty dollars

nor more than five hundred dollars or by imprison-

ment for not less than thirty days nor more than

two years, wee. «

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10 THe Justices o¥ THE Municipay Court or rue City or Bostos, holden at said City of

Boston for the transaction of criminal business, within the Couuty of Suffolk,

Richard Tracy

of the City of Boston, in the County of Susfolk, in behalf ef the CommMonweaLrH OF

MASSACHUSETTS, on oath complains that

Steven Costarelli

of said City of Boston, on the trenty seventh day of lovember

in the year of our Lord one thousand nine hundred and seventy chr

at the City of Boston aforesaid, and within the judicial district of said Court,

mercency Par'cing Lot, of + Bos n

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did thYn ait! there use a Certain rildtorsvehicle, oY eeatta al tomobile the property of

Leroy Taylor

, the said Costarelli then and there well knowing

Costarelli

such use of said automobile by him said to be unauthorized

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v. Jorn, 400 U.S. 470.

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COMMONWEALTH OF MASSACHUSETTS Use Cy. FOAved 3-4

> VS. 7 i--{ bd 4 0X,

STEPHEN COSTENE P a f (6,007 y

Costapel} c (ly

MOTION FOR JURY TRIAL

Now comes the defendant and moves this court for a trial by jury in the

first instance, a right guaranteed by the Sixth Amendment to the Constitru-

-

tion, Callan v. Wilson, 117 U.S. 540, Duncan v, Louisiana, 391 U.S. 145,

ftn, 30; and a right guaranteed by the speedy trial provision of the

Sixth Amendment, Klopfer v. North Carolina, U.S. » Holliday v.

State, 280 A.2d 333; and a right guaranteed under the double jeopardy

provisions of the Fifth Amendment, Benton v. Maryland, 89S, Ct. 2056, U.S:

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Gen. Laws Chap. 90 See. 24

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FOLK, ss MUNICIPAL COURT OF

THE CITY OF BOSTON

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CRIMINAL 7 S_

COMMONWEALTH OF MASSACHUSETTS

vs.

STEVEN COSTARELLI

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

Notice is hereby given that Steven Costarelli, the

eliant above named hereby appeals to the Supreme

rt of the United States from the conviction of the

icipal Court of the City of Boston on February 27,

4. ‘This appeal is taken pursuant to 28 U.S.C. Sec.

‘7 (2) «

By his attorney,

feito. |

Robert W. Hagopian, Esc. if

Wrentham, Mass. 02093 L

CERTIFICATE OF SERVICE

Now comes Robert W. Hagopian, Esq., and certifies

t he has served a copy of the above Notice of Appeai

Arthur Murphy, Boston Police Prosecutor, by mailing a

y of same first class, postage prepaid, Boston Police