Motion to Dismiss — Ludwig v. Massachusetts

Supreme Court, U.

FILED

OCT 20 1975

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Supreme Court of the United States

Ocroser Term, 1975

MICH AE

No. 75-377

RICHARD I. LUDWIG,

APPELLANT,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE,

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

APPELLEE’S MOTION TO DISMISS

Francis X. BELLorti

Attorney General

Joun J. Inwin, Jr.

Assistant Attorney General

Chief, Criminal Division

Terence M. Troyer

Assistant Attorney General

Chief, Criminal Appellate Section

Joun P. Consett

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

ee

Blanchard Press, Inc., Boston, Mass. — Law Printers

in the

Supreme Court of the United States

Octoser Term, 1975

No. 75-377

RICHARD I. LUDWIG,

APPELLANT,

v.

COMMONWEALTH OF MASSACHUSETTS,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

APPELLEE’S MOTION TO DISMISS

Appellee, pursuant to Rule 16(1)(b) of the Rules of

this Court moves to dismiss the appeal for want of a sub-

stantial federal question.

Opinion Below

The opinion of the Supreme Judicial Court of Massa-

chusetts is reported in 1975 Massachusetts Advance Sheets

1994 and at 330 N.E. 2d 467.

2

Jurisdiction

The appellant invoked the jurisdiction of this Court pur-

suant to 28 U.S.C. § 1257(2).

Statement of the Case

The appellant, Richard I. Ludwig, was charged in the

District Court, District of Northern Norfolk, with viola-

tion of G.L. e. 90, § 24(2)(a) (driving to endanger). He

moved the District Court for a speedy jury trial, which

motion was denied, a defendant not being entitled to a

trial by jury in the first instance under the Massachusetts

two tiered system of criminal trials. Upon conviction, ap-

pellant prosecuted an appeal, which is available as of right,

to a six man jury. G.L. c. 278, § 18; G.L. ¢, 218, § 27A.

At the de novo proceedings, appellant moved to dismiss

the complaint alleging that he was denied a jury trial in

the first instance. The motion was denied and upon con-

viction appellant was fined twenty dollars. He then pro-

secuted exeeptions to the Supreme Judicial Court of Massa-

chusetts. The exceptions were overruled.

Questions Presented

Whether the denial of a trial by jury in the first instance

when a de novo proceeding before a jury is available at

the defendant’s opinion presents a substantial federal

question.

Argument

1. In Duncan v. Louisiana, 391 U.S. 145 (1968) this

Court held that the due process clause of the Fourteenth

Amendment made applicable to the states the jury trial

provision of the Sixth Amendment. The holding in that

3

case was based upon the conclusion that, ‘‘trial by jury in

criminal cases is fundamental to the American scheme of

justice ....’’ Ibid at 149.

The two tiered system of criminal trials in Massachu-

setts does not interfere in any appreciable way with the

criminal defendant’s right to a jury trial. A defendant

has an absolute right ultimately to be tried by a jury of

his peers. It is submitted that appellant’s contention that

Duncan v. Louisiana, supra, in conjunction with Baldwin

v. New York, 399 U.S. 66 (1970), requires trial by jury in

the first instance, is not substantial.

While the right to trial by jury has been held to be

fundamental within the meaning of the concept of due

process, the application of general principles of the Sixth

Amendment do not, and should not, necessitate a holding

that specific applications of the concept in the federal sys-

tem are binding upon the states. See Johnson v. Louisiana,

406 U.S. 356 (1972). (Powell, J. concurring). Cf. Apodaca

v. Oregon, 406 U.S. 404 (1972).

Since, under the Massachusetts system, a criminal de-

fendant cannot be ultimately adjudicated guilty of an

offense without first having an opportunity to present the

question to a jury, it cannot be said that Massachusetts is

in violation of the mandate of Duncan v. Louisiana, supra.

2. The system of de novo review utilized by the

Commonwealth of Massachusetts does not place an un-

constitutional burden upon a defendant’s Sixth Amend-

ment right to a speedy trial.

In Barker v. Wingo, 407 U.S. 514 (1972) this Court

outlined, standards which courts should employ when con-

sidering a claim of denial of a speedy trial. They include,

‘‘Length of delay, the reason for delay, the defendant’s

assertion of his right, and prejudice to the defendant.’’

Ibid at 530.

4

Language in Colten v. Kentucky, 407 U.S. 104, 118, 119

(1972) indicated that a speedy trial argument based on

the standards announced in Barker does not present, in

the circumstances of this case, a question of substantial

merit. The court stated:

‘*Proceedings in the inferior courts are simple and

speedy, and... . the penalty is not characteristically

severe. Such proceedings offer a defendant the op-

portunity to learn about the prosecutions case and,

if he chooses, he need not reveal his own. He may also

plead guilty without a trial and promptly secure a

de novo trial in a court of general criminal jurisdic-

tion.”’

The above language is applicable to the Massachusetts

system as well. There is no unwarranted delay caused by

the two tiered system and the opportunities for discovery

and rapid disposition of proceedings in the lower court

does not occasion prejudice to the defendant.

3. Colten v. Kentucky, supra at 119-20 also indicates

that a double jeopardy attack on the two tiered system of

criminal justice in Massachusetts is without merit. There

an argument based on double jeopardy implications of the

possibility of enhanced punishment upon de novo trial

was summarily rejected.

The Massachusetts system does not allow the Common-

wealth to ‘‘make repeated attempts to convict an individual

for an alleged offense ... .’’ United States v. Green, 355

U.S. 184, 187-88 (1957). Acquittal in the District Court is

conclusive. It is only when a judgment of guilt is returned,

and then only at the option of the defendant, that a re-trial

is possible.

5

Conclusion

For the reasons stated, it is respectfully suggested that

the appeal be dismissed for failure to present a substantial

federal question.

Respectfully submitted,

Francis X. BELLOTTI

Attorney General

Joun J. Inwiy, JR.

Assistant Attorney General

Chief, Criminal Division

Terence M. Troyer

Assistant Attorney General

Chief, Criminal Appellate Section

Joun P. Consett

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108