# Jurisdictional Statement — Costarelli v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1975 - **Citation:** 421 U.S. 193 ## Text 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 } 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 ye 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 REM TAREE 2 ties a eo Le t“~ iii 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 i ee ee 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 COS TLE EIEIO Sererenennygirs- Se | Rha a dial is oo eS 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 —_— ar we “ 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 ae ln] 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 See 4 we SERRE be ARTS, BE ee GRY iit eal 6 get SER FACET RAE ORT ERE > IT yee? ES ess Shes a een eee i See i eee — meme 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. | Sue ae el. | 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. « 11 IS die 5 toa as i LA RT PIT ey er Aen NA Se EAR ee a eee POG til seen és ‘ ‘ . “0 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 a Alb 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 A in NS a _ v. Jorn, 400 U.S. 470. Mas. ka do IRR Di VUrLrUuULhy veo DPVOLVUAN MUNLULrPAL UUURL CRIMINAL 7 : + ‘ G4 oman Pt? ed 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: ¥ t A i A ‘ ‘ ‘ i ‘ : é ' rn N * : i ‘ i te { i } ’ ‘ ' . , t y : i ‘ ' ie . 4 } i i ’ : t s i ; ’ i ‘ ‘ i i , ‘ ‘ ‘ . ‘ { 1 t ar et ON —— POOR COPY pera) var] vib Papi: e his QMAD DEFES TLOTTS ee GEE FES“ | EF WLTI ESN | She ied -= ‘ net AL ) SANAS NA, | ag7 | \ EP 'e ‘ Al “op NY COMMONWEALTH 2h 4}, mon \) ‘ ; s Pica } t MM ON COMPLAINT OF ek RQ Richard Tracy MASA ) o i 474 .) VS. ROA: Ste: en Costareili ° .S : ASE A ound | UNAUTHORIZED USE OF ah 7 4 | AUTOMOBILE > . Gen. Laws Chap. 90 See. 24 30 days ; $50-$500 or 2-Months-2 years or both ' JAN 23 1974 MLAS FLD, ri” hy OLIT “i, 7 | feo = Ae et adn Pe oa VAUD 3 72 ae a a a 2 Pann 4- D8. a ey “1 f ae ; > an ee es - = 7 “4 aLe Ai Le ons 2 | 100 SZe ry . ' Haw pe ah A gd att By Maric ue i re WER Bey IRs Wee Cy ise fy 1 | my PUA LEED, toy TEST gti | pas Poel bd 4. wore i“, © An TES SH ‘ He ee me q ‘ Lesbo Eh § aly ed pe oN 7 AY of ie hits ‘To a i ee ee LP al og: / FEB 21 i874 -BUED > jp 4) a P MCUs OF CO; ECTION ~ ~ ~ Sur, 62, Cpeig | ete ag Leck3, % [re fat” “SIDAX on Qn res be lve NE en BeBe oi a a PAGE CUT OFF ‘ny A FOLK, ss MUNICIPAL COURT OF THE CITY OF BOSTON , , fe: 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1629%3A02. Public record. Not legal advice.