Petition — Mahnke v. Massachusetts

Supreme Court, U. &

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75-1302 bh FILED ¢

js MAR 12.1976

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§ MESRATL RODAK. JR., CLEOK

Ocroser Term, 1975.

GEORGE WAYNE MAHNKE,

PETITIONER,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the

Supreme Judicial Court for the Commonwealth

of Massachusetts.

Geratp ALCH,

One Center Plaza,

Boston, Massachusetts 02108.

(617) 742-5566

ADDISON C. GETCHELL & SON, INC. - THE LAWYERS’ PRINTER - BOSTON

Table cf Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional provisions

Statement of the case

Statement of the facts

Reasons for granting the writ

I. The incriminating statements and actions of

the petitioner made to his kidnappers while

still in their grip were involuntary and their

admission into evidence violated the petition-

er’s rights under the Fourth, Fifth and Four-

teenth Amendments

Il. The incriminating statements and actions

of the petitioner subsequent to 4:15 p.m. on

December 9, 1971, were excludable az ‘ruits

of the poisonous tree’’ and/or under the ‘‘cat

out of the bag’’ doctrine, as the direct pro-

ducts of the earlier coerced statements

III. The statements of the petitioner made to

police officers at the Massachusetts General

Hospital on December 10, 1971, should have

been suppressed for all purposes because

(A) they were involuntary or (B) they were

not embraced by Harris v. New York, having

been elicited as a result of intentional police

misconduct

A. The petitioner’s first contention is that

these statements were made involuntarily

and should have been suppressed for any

purpose whatsoever

non fF WS WY DW bw

25

ii TABLE OF AUTHORITIES CITED

B. The petitioner alternatively submits that

the December 10, 1971 incident is not em-

braced by Harris. Neither the United

States Supreme Court decision nor the de-

cision of the New York Court of Appeals,

People v. Harris, 25 N.Y. 2d 175, 250

N.E. 2d 349 (1969), reflect a detailed fac-

tual account of the Harris case. Such an

account, however, can be found in the initial

appellate decision by the New York Su-

preme Court, 298 N.Y.S. 2d 245, 31 A.D. 2d

828 (App. Div., 2d Dept. 1969)

Conclusion

Table of Authorities Cited.

CasEs.

Ashcraft v. Tennessee, 322 U.S. 143; 64 S. Ct. 921;

88 L. Ed. 1192 (1944)

Beecher v. Alabama, 389 U.S. 35; 88 S. Ct. 189;

19 L. Ed. 2d 35 (1967)

Bram v. United States, 168 U.S. 532; 18 S. Ct. 183;

42 L. Ed. 568 (1897)

Bryant v. North Carolina, 409 U.S. 995; 93 S. Ct.

329; 34 L. Ed. 2d 259 (1972)

Burdeau v. McDowell, 256 U.S. 465; 41 S. Ct. 574;

65 L. Ed. 1048 (1921)

Carter v. Eyman, 281 F. Supp. 776 (D. Ariz. 1968)

Clewis v. Texas, 386 U.S. 707; 87 S. Ct. 1338; 18

L. Ed. 2d 423 (1967)

Commonwealth v. Kleciak, 350 Mass. 679; 216

N.E. 2d 417 (1966)

37

19

22

TABLE OF AUTHORITIES CITED ili

Conimonwealth v. Mahnke, Mass. Adv. Sh. (1975)

2897 2,5

Davis v. North Carolina, 384 U.S. 737; 86 S. Ct.

1761; 16 L. Ed. 2d 895 (1966) 33

Fisher v. Scafati, 439 F. 2d 307 (1st Cir. 1971) 28

Gilpin v. United States, 415 F. 2d 638 (5th Cir.

1969) 21

Gladden v. Holland, 366 F. 2d 580 (9th Cir. 1966) 19,

21, 28

Harney v. United States, 407 F. 2d 586 (5th Cir.

1969) 22

Harris \. New York, 401 U.S. 222; 91 S. Ct. 643;

28 L. Ed. 2d 1 (1971) 3, 8, 30, 34, 35, 36, 38

Harrison v. United States, 392 U.S. 219; 88 S. Ct.

2008; 20 L. Ed. 2d 1047 (1968) 27

Haynes v. Washington, 373 U.S. 503; 83 S. Ct. 1336;

10 L. Ed. 2d 513 (1963) 19, 33, 35

Johnson v. New Jersey, 384 U.S. 719; 86 S. Ct. 1772;

16 L. Ed. 2d 882 (1966) 33

Killough v. United States, 336 F. 2d 929 (D.C. Cir.

1964) 29

Leyra v. Denno, 347 U.S. 556; 74 S. Ct. 716; 98 L. Ed.

948 (1954) 20

Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602;

16 L. Ed. 2d 694 (1966) 19, 32, 33, 34, 35, 36, 37, 38

Nardone v. United States, 308 U.S. 338; 60 S. Ct.

266; 84 L. Ed. 307 (1939) 26

People v. Harris, 298 N.Y.S. 2d 245; 31 A.D. 2d 828

(N.Y. S. Ct. App. Div., 2d Dept. 1969) ; 25 N.Y. 2d;

250 N.E. 2d 349 (1969) 34

iv TABLE OF AUTHORITIES CITED

Procunier v. Atchley, 400 U.S. 446; 91 S. Ct. 485;

27 L. Ed. 2d 524 (1971) 19

Riddell v. Rhay, 404 U.S. 974; 92 S. Ct. 337; 30

L. Ed. 2d 291 (1971) 36

United States v. Bayer, 331 U.S. 532; 67 S. Ct. 1394;

91 L. Ed. 1654 (1947) 21

United States v. Killough, 218 F. Supp. 339 (D. D.C.

1963) 29

United States v. Robinson, 439 F. 2d 553 (D.C. Cir.

1970) (rehearing den. 1971) 20

United States v. Schipani, 289 F. Supp. 43 (E.D.

N.Y. 1968) affd. 414 F. 2d 1262 (2d Cir. 1969) 28

United States ex rel. Hughes v. McMann, 405 F. 2d

773 (2d Cir. 1968) 22

United States ex rel. Townsend v. Twomey, 322

F. Supp. 158 (N.D. Ill. 1971) 28

Wong Sun v. United States, 371 U.S. 471; 83 S. Ct.

407; 9 L. Ed. 2d 441 (1963) 27, 28

CoNSTITUTIONAL PROVISIONS.

United States Constitution

Fourth Amendment 3

Fifth Amendment 3, 3-4, 36

Sixth Amenament 4, 37

Fourteenth Amendment 3, 4, 36

STaTurTeEs.

28 U.S.C. § 1257(3) 2

M.G.L. ¢. 278, § 33E 5, Sn.

Supreme Court of the United States.

Ocroser Term, 1975.

GEORGE WAYNE MAHNKE,

PETITIONER,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for a Writ of Certiorari to the

Supreme Judicial Court for the Commonwealth

of Massachusetts.

To the Honorable, the Chief Justice, and the Associate

Justices of the Supreme Court of the United States:

Petitioner, George Wayne Mahnke, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the Supreme Judicial Court fer the Com-

monwealth of Massachusetts. Said judgment and opin-

ion, dated October 7, 1975, vacated a verdict of murder

in the second degree and the sentence imposed pursuant

thereto by the Superior Court of Suffolk County, and re-

manded said case to said trial court ordering the entry

of a verdict of guilty of manslaughter and directing that

sentence be imposed thereupon. Said sentence, upon re-

mand, was imposed on December 15, 1975.

2

Opinion Below.

The opinion of the Supreme Judicial Court for the

Commonwealth of Massachusetts (Mass. Adv. Sh. (1975)

2897) appears in the appendix hereto. Also included in

the appendix are:

1. The trial court’s finding of fact and rulings of law

on the petitioner’s pre-trial motions to suppress evidence.

2. The order of the Supreme Judicial Court, dated

January 8, 1975, directing the trial judge to make sup-

plementary findings with respect to the voluntariness of

statements made by the petitioner on December 9 and

10, 1971.

3. The supplementary findings of fact promulgated by

the trial court on February 12, 1975.

The inclusion in said appendix of these findings and

rulings are deemed necessary for a complete and com-

prehensive presentation of the issues formulated herein.

Jurisdiction.

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

Questions Presented.

The petitioner was kidnapped on December 8, 1971 at

approximately 7:30 p.m. and was not released until 24

hours subsequent thereto. After ruling that all incrimi-

natory statements made by the petitioner to his kidnappers

from the commencement of his captivity until 4:15 p.m.

on the following day, December 9, 1971, were inadmissi-

ble as the product of coercion, the trial court allowed

3

into evidence incriminating statements and actions of the

petitioner immediately subsequent thereto, but prior to

his release.

I. Whether incriminating statements made by a kid-

napped person to his kidnappers while still in their grip,

ean be constitutionally adjudicated to be acts of free will

in accordance with the provisions of the Fourth, Fifth

and Fourteenth Amendments to the United States Con-

stitution.

Il. Whether the incrimiaating statements and actions

of the petitioner subsequent to 4:15 p.m. on December 9,

1971, were excludable as ‘‘fruits of the poisonous tree’’

and/or under the ‘‘cat out of the bag’’ doctrine, as the

direct product of the earlier coerced statements.

iT. Whether the stare decisis of Harris v. New York,

401 U.S. 222; 91 S. Ct. 643; 28 L. Ed. 2d 1 (1971) applies

to instances of intentional police misconduct.

Constitutional Provisions.

Un:rrep States Constitution,

Fovurtn, Firru, Sixty, anp FourtreeNtH AMENDMENTs.

[4th] The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

[5th] No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

4

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

[6th] In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the crime

shali have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

[14th] Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens .

of the United States; nor shall any State deprive any

person of life, liberty, or pioperty, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Statement of the Case.

On June 27, 1973, in the Superior Court of Suffolk

County, the petitioner was convicted by a jury of murder

in the second degree and sentenced to imprisonment for

and during the term of his natural life. Prior to trial,

an evidentiary hearing was held on the petitioner’s mo-

tions to suppress evidence, resulting in the promulgation

by the trial court of findings of fact and rulings of law,

commencing on page 69 of the Appendix. An appeal was

timely perfected to the Supreme Judicial Court for the

Commonwealth of Massachusetts and was orally argued

before said court on May 7, 1974. On January 8, 1975,

5

an order was promulgated by said court directing the

trial judge to make ‘‘more complete findings’’ with re-

gard to issues characterized in authorities cited as ‘‘break

in the chain of events’’ and ‘‘cat out of the bag.’’ Said

order is reflected in the appendix commencing on page 1.

On February 12, 1975, the trial court did promulgate said

requested supplementary findings of fact which are re-

flected in the appendix, commencing on page 126. On

October 7, 1975, the Supreme Judicial Court for the Com-

monwealth of Massachusetts, in a four to three decision,

rendered its opinion resulting in its remand of the in-

stant matter to the Superior Court directing that the ver-

dict of murder in the second degree and the sentence

imposed thereupon be vacated and that a verdict of guilty

of manslaughter be entered with the petitioner being duly

sentenced pursuant thereto. The majority of that court

determined that there was no constitutional error in the

admission of evidence at trial and predicated its direc-

tive for the entry of a verdict of a lesser degree of guilt

upon its statutory authority of review in capital cases,

as enunciated in M.G.L. ¢. 278, § 33E.'. On December 15,

1975, petitioner was sentenced to a term of incarceration

of not less than ten and not more than fifteen years at

the Massachusetts Correctional Institution at Norfolk,

Massachusetts.

'Said statute provides in relevant part: ‘‘In a capital case

as hereinafter defined the entry in the supreme judicial court

shall transfer to that court the whole case for its consider-

ation of the law and the evidence. Upon such consideration

the court may, if satisfied that the verdict was against the

law or the weight of the evidence ... or for any other reason

that justice may require (a) order a new trial or (b) direct the

entry of a verdict of a lesser degree of guilt, and remand the

case to the superior court for the imposition of sentence.’’ Said

statute designs a ‘‘capital case’’ as one in which the defendant

was tried on an indictment for murder in the first degree and

was convicted of murder either in the first or second degree.

6

Statement of the Facts.

Rhonda Bornstein disappeared on the evening of Sep-

tember 15, 1970 and on December 9, 1971, her body was

discovered buried under an abandoned set of railroad

tracks running parallel to the M.B.T.A. tracks near the

Sears, Roebuck parking lot in the Fenway, near the corner

of Boylston Street, Boston, Massachusetts. Her father,

Manuel Bornstein, had information to the effect that his

daughter had arranged to meet with the petitioner on

the evening of her disappearance and had, accordingly, ab

initio, been convinced that the petitioner was involved in

and/or had caused his daughter’s disappearance. In the

fifteen month period between September 15, 1970 and De-

cember 9, 1971, he enlisted the aid of many individuals

who described themselves as ‘‘concerned persons’’ for

the purpose of assisting him in attempting to locate his

daughter’s whereabouts. During this same period, and

as a direct result of Mr. Bornstein’s suspicions regarding

the petitioner, a consistent activity of harassment was

conducted against said petitioner, including but not lim-

ited to constant surveillance, assaults, attempted inter-

rogation, attempted kidnapping, and ultimately, the effec-

tuation of a kidnapping. These acts of hostility took

place near the petitioner’s home, at his place of business

and at Northeastern University, where the petitioner was a

student. During this same period, the investigation on

behalf of the Boston Police Department was delegated

to Detective Stanley Gawlinski, who first became associ-

ated with the investigation of the case on December 1, 1970

and who continued in active charge of the investigation

of the case and the bringing of the instant indictments

against the petitioner. Detective Gawlinski maintained

consistent communication with Mr. Bornstein relative to

his investigative activities and was aware of the nature

7

of the activities being conducted by Mr. Bornstein and

his group of ‘‘concerned citizens.’’ The ineffectiveness

of the harassment hereinabove generally described, as

well as Mr. Bornstein’s increasing dissatisfaction with

the efforts of Detective Gawlinski (who had ultimately

told Bornstein that without further evidence, such as a

body, he could proceed no further in altering the status

of the case from that of a ‘‘disappearance’’) culminated

in the petitioner’s being kidnapped in the early evening

of December 8, 1971. The abduction was engaged in by

Bornstein and five other individuals, to wit: Gary Fisher,

James Ferreri, Frank Fontacchio, Jay Campbell and Jay

Heard. The petitioner was forcibly taken to a cabin lo-

cated in Worthington, Massachusetts, on December 8,

1971 and was not released until approximately 7:30 p.m.

on December 9, 1971. He was held in the cabin from

10:30 p.m. on December 8, to 4:15 p.m. on December 9,

1971. During this period of time, as the result of in-

tense interrogation predicated upon threats to his safety

and life, the petitioner uttered incriminating statements,

as a result of which he was transported to the Sears,

Roebuck parking lot where the body of Rhonda Bornstein

was discovered. Upon being released on the evening of

December 9, 1971, he was taken by his parents to the

Massachusetts General Hospital and was admitted to and

remained in the emergency ward from 8:05 p.m. until

approximately 1:15 a.m. December 10, 1971. He was

subsequently interrogated by police officers at the hos-

pital commencing at 3:30 a.m. of the same morning and

ending at approximately 7:30 am. During the latter

portion of this hospital interrogation, the petitioner again

uttered incriminating statements.

The trial court suppressed all statements made by the

petitioner from the time of his abduction on December 8,

8

until 4:15 p.m. on December 9, 1971 on the ground of

involuntariness, but ruled admissible all of his immediately

subsequent statements and conduct on that day, leading to

the discovery of the body of Rhonda Bornstein. In so

doing, the court found that all of the petitioner’s conduct

subsequent to 4:15 p.m. was voluntary and not the ‘‘fruits

of the poisonous tree.’’ The petitioner’s hospital state-

ments of December 10, 1971 were suppressed on the ground

that his right to counsel had been intentionally denied by

police interrogators, but were found to have been volun-

tarily made, thereby permitting their use for impeach-

ment purposes under Harris v. New York, 401 U.S. 222,

91 S. Ct. 643; 28 L. Ed. 2d 1 (1971).

Reasons for Granting the Writ.

I. Tue IncrmmiInaTING STATEMENTS AND ACTIONS OF THE

PetitioneR Mape to His KIDNAPPERS WHILE STILL IN

Tuer Grip Were INVOLUNTARY AND THEIR ADMISSION

into EviweNce VIOLATED THE PETITIONER’s RIGHTS UN-

DER THE FovurtTH, FirrH, AND FourTEENTH AMENDMENTS.

The trial court suppressed only that part of petitioner’s

conduct, during the period of his abduction, which oc-

curred prior to 4:15 p.m. on December 9, 1971. In its pre-

trial findings of fact relevant thereto, the trial court found

the following:

1. From September 15, 1970, the date of his daughter’s

disappearance, Mr. Bornstein ‘‘had the volunteered as-

sistance of the ‘concerned group’ and entered upon a

consistent and persistent and harassing course of conduct

towards the [petitioner] . . . up to and including the

events of December 8, 1971... . This evidenced itself

almost immediately by some of the ‘concerned group’

9

forcibly restraining Mahnke at Northeastern University,

where he was a student, in broad daylight and seeking

to isolate him and interrogate him’’ (A. 71).

2. ‘‘There was another occasion when the ‘concerned

group’ or some of them again visited Northeastern Uni-

versity and again attempted to isolate and detain him.

Mahnke was deeply conscious of the fact that he was be-

ing followed by this group, and on this occasion he broke

away and ran to a police patrol cruiser which was in the

neighborhood’’ (A. 71).

3. ‘*At very frequent instances during this fifteen-month

period one or more of the ‘concerned group’ would park

a car in the area of Mahnke’s house and proceed to follow

him. On many of these instances I find that Mahnke

knew he was in fact being followed’’ (A. 71).

4. Ferreri and Fontacchio, on August 17, 1971, visited

the petitioner’s place of employment (Henry F. Bryant

& Son, Inc.) for the purpose of interrogating him. When

the petitioner saw them he ‘‘immediately became fright-

ened and turned and ran and Ferreri and Fontacchio

made an effort to follow him. They were stopped by the

receptionist who indicated that she was going to call the

police, and they thereupon left Bryant’s .. .’’ (A. 72).

5. On December 22, 1970, the petitioner’s then attor-

ney, William Bulger, arranged for the petitioner to be

interviewed, at his office, by Detective Gawlinski. Mr.

Bornstein learned that this interview was to take place

resulting in Campbell and Fontacchio’s conducting a sur-

veillance of attorney Bulger’s office ‘‘for at least the pur-

pose of following him when he (Mahnke) left the office,

and in view of their prior conduct it is a fair inference

that they intended to again try to stop him and question

him’’ (A. 72). Having been advised by attorney Bulger’s

secretary that Mahnke was not present, they left the office

10

and resumed their purpose of surveillance following the

petitioner when he left after the interview but losing

him in existing traffic. Either Campbell or Fontacchio

was equipped, at this time, with a two-way walkie-talkie .

(A. 72).

6. When the abduction at Mt. Ida commenced at ap-

proximately 7:30 p.m. on December 8, 1971, the petitioner

struggled in an effort to escape ‘‘and Ferreri hit him a

vicious and punishing blow in the area of his left eye.

It subsequently became inflamed, swollen, black and blue,

and caused great discomfort. Mahnke’s eyesight is such

that he wears very strong prescription glasses at all times

and has poor vision without glasses. When he was struck,

he fell to the ground and lost his glasses.’’ The peti-

tioner never regained possession of these glasses at any

time prior to at least December 10, 1971 (A. 73).

7. When the petitioner began to scream in order to

attract attention, Mr. Bornstein, who was at the scene,

revved up the engine of Ferreri’s motor vehicle for the

purpose of distracting the attention of a special police

officer whom he knew to be in the vicinity, and was suc-

cessful in so doing. Simultaneously, the petitioner was

grabbed by Fontacchio, ‘‘a big, strong, rough, husky adult’’

and by Ferreri, and forced into Mr. Bornstein’s motor

vehicle driven by Fisher. He was pushed head first into

the automobile continuing to yell and scream all the time.

Once inside the car, Ferrerj had a headlock on the peti-

tioner and tilted his head onto his lap, while Fontacchio

still had him by the left arm. He was placed in such a

position that his head was below the level of the front

seat (A. 74).

8. As Fisher drove away from the Mt. Ida campus

the petitioner wrenched himself loose from the grasp of

11

both Ferreri and Fontacchio and as he attempted to grab

Fisher around the neck from behind, he was quickly and

forcibly subdued (A. 74).

9. During the drive to the cabin, the petitioner re-

mained in virtually the same position in the continued

grasp of both Ferreri and Fontacchio. ‘‘{[T]he combi-

nation of shock, fear, and injury from which Mahnke was

then suffering rendered him in a physical state where

resistance was not possible to him and any attempt at

escape would have been completely fruitless.’’ During

this time, the petitioner was bleeding fairly heavily from

the face (A. 75).

10. At approximately 11:30 p.m. Ferreri and Fontac-

chio left the cabin leaving the petitioner in the custody

of Fisher who had ‘‘obtained a bread knife approximately

twelve inches long which he exhibited to Mahnke and made

sure that Mahnke knew he had it’’ (A. 78).

11. During the period of time in which he was left

alone with Fisher, the petitioner was ‘‘an extremely scared

and terrified young man and didn’t need any threats to

keep him subdued’’ (A. 78).

12. At approximately 6 a.m., December 9, 1971, Fer-

reri and Campbell arrived at the cabin, joining Fisher,

and for the next four hours ‘‘the three of them relent-

lessly interrogated Mahnke concerning his knowledge of

the whereabouts of Rhonda Bornstein’’ (A. 79).

13. This interrogation was ‘‘interspersed with threats

to Mahnke’s life and the language used was extremely

rough. If it was intended to intimidate Mahnke, it had

the desired effect. I find that Mahnke was terrified, scared

to death, uncertain as to whether or not they intended to

kill him, and, coupled with his physical injuries and a

splitting headache, nothing that he said or did could under

any circumstances be considered by anybody to be volun-

tary’’ (A. 79).

12

14. At 10 am. on December 9, 1971, the group at the

cabin was augmented by the arrival of Fontacchio and

Heard. Confronted with these five persons, ‘‘[f]rom ap-

proximately 10 a.m. until 12 noon Mahnke was again

subjected to a harassing, threatening, profane, and in-

sistent interrogation. The threats were threats not only

of physical injury to him but threats to take his life—

‘that. he would never leave there alive.’ During the en-

tire period of time, Mahnke was completely terrified, in

fear, and thoroughly subdued’’ (A. 80).

15. Subsequent to the brief appearance at the cabin

by Chief David Tyler, the petitioner ‘‘was then subjected

to the same type of grilling, threatening, harassing, in-

sistent interrogation that had existed prior thereto until

about 12:30 p.m.’’ (A. 81).

16. Even after the petitioner (allegedly at his own re-

quest) was left alone in the ‘‘detention’’ room with Fer-

reri and Campbell, the petitioner continued, initially, to

refuse to divulge any information about Rhonda Born-

stein (A. 81).

17. In completely excluding any and all statements made

by the petitioner prior to the departure from the cabin

at 4:15 p.m., the trial court found that such statements

‘‘were involuntary and induced by threats, duress, in-

timidation, fear, and at least some violence (the origi-

nal striking of the defendant at Mt. Ida)’’ (A. 83).

18. Most significantly, the petitioner’s captors ‘‘decided

to keep physical control of him until such time as he had

showed them where the body of Rhonda Bornstein was

buried’’ (A. 127). ‘‘[T]he first time he was free to leave

with the acquiescence of the group who had originally

kidnapped him was between 6:30 p.m. and 7 p.m. on

December 9 when Ferreri asked Mahnke how he wanted

to get home just prior to driving him home’’ (A. 94).

15

The trial court further held that ‘‘in view of the in-

tolerable circumstances under which the statements by

Mahnke were made at the cabin in Worthington and the

inherent unreliability of statements coerced by violence

and duress, I suppress the statements there made because

I am unable to rationalize a legal philosophy making them

admissible and not at the same time violating Mahnke’s

constitutional basic rights’’ (A. 110). ‘‘ ‘[I]n light of the

totality of the circumstances, the will of the defendant

had been overborne so that the statement was not his free

and voluntary act’’’ (A. 112).

Despite the unequivocal and commanding language of

the trial court, as hereinabove set forth, the petitioner

submits the following additional evidence, adduced at the

pre-trial hearing, further emphasizing the degree of co-

ercion exercised upon him prior to the time at which the

trial court found a ‘‘change of attitude’’ on the part of

the petitioner:

1. The frame of mind of the five kidnappers was such

that they were going to keep Mahnke in the cabin until

they decided he could leave (Fisher—Tr. 169).?

2. When the petitioner and his abductors first arrived

in the cabin the temperature was below freezing (Fisher—

Tr. 93), and this temperature remained constant until

approximately 11 p.m., December 8, 1971 (Tr. 108).

3. During the interrogation of the petitioner on De-

cember 9, 1971, he was complaining about his face and

eye (Fisher—Tr. 117).

4. During the ride from Mt. Ida to the cabin, blood

was on the petitioner’s face and staining his coat (Fer-

reri— Tr. 288).

5. The purpose of constantly following the petitioner

was to determine a pattern of his movements (Ferreri—

Tr. 348), and also to set up an opportunity to question

2‘*Tr.’’ refers to pages in the original trial transcript.

14

him (Tr. 349). The petitioner was also followed for de-

termining his school and work habits (Ferreri—Tr. 372).

6. At the cabin the petitioner stated that he could not

see without his glasses which he was without (Ferreri—

Tr. 383). At no time did anyone tell the petitioner at

the cabin that he was free to leave or go wherever he

wanted to go (Ferreri—Tr. 391 and 406).

7. During the ride from Mt. Ida to the cabin the pe-

titioner kept saying, ‘‘What did I do? You don’t know

me. I don’t know you.’’ He received no response (Fon-

tacchio—Tr. 700). When the group alighted from the

motor vehicle upon their initial arrival at the cabin, the

petitioner tripped in the snow and said that he couldn’t

see (Fontacchio—Tr. 733).

8. When the petitioner first arrived at the cabin his

eye was ‘‘pretty swollen’’ and there was blood on his face

and nose (Fontacchio—Tr. 742, 745).

9. Fontacchio had volunteered his services to the Born-

steins ‘‘for whatever purpose his services could be used’’

(Tr. 807).

10. Between 6:30 and 7:30 a.m. on December 9, 1971,

the petitioner was ‘‘asleep or unconscious’’ (Campbell—

Tr. 978).

11. Heard had conducted surveillance of the petitioner

at Northeastern University ‘‘many times’’ (Tr. 1071) and

had conducted surveillance of the petitioner’s residence

some two dozen times, some of which instances consti-

tuted full-day surveillances (Tr. 1108).

12. The trial court received testimony from Ralph

Jacobs and Richard Jacobs, brothers, who were co-

employees of the petitioner at Henry F. Bryant & Son,

Inc. on August 17, 1971. This was the occasion upon

which Ferreri and Fontacchio entered said premises for

the purpose of seeing the petitioner. Their testimony is

reflected at Tr. 1283 through 1295, and is similar, if not

15

identical, as to what actually transpired on that date.

According to their testimony, when Ferreri and Fontae-

chio asked to speak with the petitioner, he was summoned

and a scuffle ensued. The petitioner was heard to yell

‘* Joe, Joe,’’ obviously seeking help of another co-employee.

The petitioner thereupon broke away from Ferreri and

Fontacchio and appeared ‘‘with his hair messed and his

glasses cocked.’’ When Joe, the petitioner’s co-employee,

asked Ferreri and Fontacchio to leave, one of them ‘‘ pushed

his coat back and put his hand on his hip where there

was an object.’’ Although concealed, it was a long ob-

ject resembling a stick or a knife. As they were leav-

ing, either Ferreri or Fontacchio said to the petitioner,

‘*George, we know what you did and you are going to

pay for it—we will get you.’’ It is significant to note

that in its reference to this incident, the trial court made

no finding whatsoever of a threat, a scuffle and a long

concealed object strapped to the hip of one of the in-

truders.

13. There was an abortive attempt to kidnap petitioner

in November of 1970 at Northeastern University by Mr.

Bornstein and two others (Bornstein—Tr. 1876).

14. For a period of months, groups acting on behalf

of Mr. Bornstein followed the petitioner from the time

he left his house in the morning until the time he re-

turned at night. This time period included both peti-

tioner’s school term and vacation (Bornstein—Tr. 1918).

15. On one occasion, Mr. Bornstein’s son, Jordan, went

to Northeastern University and ‘‘grabbed the [petitioner]

and walked him out to the street.’’ The petitioner kept

saying he didn’t know why he was being grabbed and

pushed and questioned (Bornstein—Tr. 1920-1921).

16. It had been Mr. Bornstein’s intention to ‘‘take’’

the petitioner and ‘‘keep him’’ until he heard answers

he wanted to hear. In fact, prior to December 8, 1971,

16

there had been other attempts to kidnap the petitioner,

which attempts had failed (Bornstein—Tr. 1938).

The ruling of the trial court admitting all conduct of

the petitioner subsequent to 4:15 p.m. on December 9,

1971, was predicated upon a finding that the relationship

between the petitioner and his abductors, particularly Fer-

reri, had ‘‘warmed considerably’’ (A. 81). It was also

concluded that after the statements made by the petitioner

at approximately 2 p.m. on December 9, ‘‘all hostility on

the part of the ‘Worthington Five’ stopped. There was

no longer any intimidation, threats, or force. Mahnke’s

conduct towards the group became voluntary and coopera-

tive’’ (A. 83).

Nevertheless, the trial court stated: ‘‘It is difficult to

understand from the evidence why a rapport or relation-

ship of some degree of confidence and friendliness arose

between Ferreri and Mahnke at this point. [12:30 pm.,

December 9, 1971.] It may be that Mahnke picked out

the least of all evils to be his confidant’’ (Ferreri A. 81).

The petitioner submits that this finding by the trial

court of a sudden change of relationship between the

petitioner and his kidnappers is not supported by the

evidence and contends that the duress and coercion which

rendered involuntary his conduct prior to 4:15 p.m. con-

tinued with this same effect up to and until the time of

the petitioner’s release at 7:30 p.m. all contrary to the

‘¢ultimate findings’’ of the trial court reflected at A. 95.

In support of his contention that his conduct remained

involuntary subsequent to 4:15 p.m. and that no ‘‘spirit

of cooperation and reliance and trust’’ existed prior there-

to with regard to Ferreri (A. 95) the petitioner sub-

mits the following facts adduced at the pre-trial hearing:

1. As the group was leaving the cabin at 4:15 p.m.,

Ferreri said to the petitioner ‘‘you will have to tell me

17

where to go’’ (emphasis supplied) (Tr. 210). When the

group arrived at the Sears, Roebuck parking lot in no

way was the petitioner told that he was free to go (Fisher—

Tr. 228).

2. When Ferreri returned from his initial fruitless

search of the area beneath the tracks he commanded the

petitioner to accompany him (Fisher—Tr. 237).

3. The petitioner refused to go because he was afraid

the group was going to kill him (Fisher—Tr. 238, 252).

4. At the Sears, Roebuck parking lot at approximately

6 p.m. on December 9, 1971, the petitioner said ‘‘for God’s

sake would you please leave me alone’’ (Ferreri—Tr. 426).

5. During the petitioner’s conversation with Campbell

and Ferreri, at which point the trial court found a warm-

ing of their relationship, the petitioner ‘‘had a fear’’

that he ‘‘will never make it home’’ (Ferreri—Tr. 429).

6. Ferreri himself understood that the petitioner, at

this time of alleged ‘‘confidence,’’ felt that ‘‘he wasn’t

going to leave’’ (Tr. 431).

7. It was only after he was assured by Ferreri that

he would ‘‘make it home,’’ if he talked, did the petitioner

commence to make incriminating statements (Tr. 430).

8. Before answering any questions, the petitioner made

Ferreri promise that ‘‘those other kids wouldn’t touch

him’’ (Ferreri—Tr. 434).

9. When asked if he would have driven the petitioner

home had he refused to answer questions, Ferreri an-

swered ‘‘I don’t know’’ (Tr. 445).

10. Even as the group left the cabin at 4:15 p.m.,

there was no assurance that they would receive from the

petitioner the information they were seeking. (Ferreri—

Tr. 445.)

11. During the drive from the cabin to Sears, Roe-

buck, the petitioner kept imploring Ferreri to ‘‘go fast,

I want to lose them’’ (Ferreri—Tr. 457).

18

12. Ferreri himself acknowledged that when he requested

the petitioner to go with him to the tracks at Sears,

Roebuck, the petitioner again exhibited a fear for bis life

by stating, ‘‘I’m scared you are going to kill me’’ (Tr.

481).

13. Before the petitioner made any incriminating state-

ments at the cabin regarding Rhonda Bornstein, he stated

to Ferreri ‘‘if you promise me taat | will make it home,

I will tell you.’”’ Ferreri so promised (Tr. 539).

14. Even when the petitioner expressed fear for his

life at the Sears, Roebuck parking lot, Ferreri gave him

no assurance of safety. He was only told that he would

not be killed (Tr. 592).

15. When the group left the cabin at 4:15 p.m., in

order to proceed to Boston, they doubted the truth of

what the petitioner had told them, and, when asked whether

the petitioner would have been killed had his informa-

tion not checked out, Fontacchio answered unequivocally

‘*no, I don’t know what would have happened’’ (Tr. 830).

Indeed, the petitioner was advised of the still existing

threat to his safety, when, as the group departed for

Boston at 4:15 p.m., he was told ‘‘look, we are going

to give you a chance and take you with us’’ (Tr. 834).

16. At the Sears, Roebuck parking lot the petitioner

‘*seemed pretty upset’’ (Fontacchio—Tr. 895).

17. During the 12:30 interrogation by Ferreri and

Campbell, contrary to exlbiting a feeling of trust, the

petitioner was ‘‘really emotional, frightened and sweat-

ing, he wasn’t in complete balance’’ (Campbell—Tr. 1007).

18. When the group left the cabin at 4:15 p.m. and

approached Chief Tyler and his companion, Reno Liima-

tainen, who was holding the shotgun, Chief Tyler saw

two persons separate from the group and go to the GTO

automobile. Thus, prior to the threatening statement of

19

Liimatainen, the petitioner and Ferreri ‘‘broke away”’

from the group, with the remaining five, according to

Chief Tyler, coming ‘‘close to me’’ (Tr. 1201).

19. Immediately prior to the group’s departure from

the cabin at 4:15 p.m., Mr. Liimatainen heard ‘‘pound-

ing noises’’ coming from the cabin (Tr. 1262).

20. Mr. Liimatainen also testified that he stated ‘‘any

funny business, I will blow your guts out,’’ after the pe-

titioner and Ferreri had broken off from the group and

were making their way to the GTO automobile. ‘‘They

[Ferreri and the petitioner] looked kind of scared’’ (Tr.

1264-1280).

The question of whether the due process clause of the

Fourteenth Amendment has been violated by admission

into evidence of a coerced statement is the subject, upon

appellate review, of an independent determination. Ash-

craft v. Tennessee, 322 U.S. 148; 64 S. Ct. 921; 88 L. Ed.

1192 (1944).

The true test of voluntariness is whether the statement

was made freely and without compulsion or inducement

of any sort. Haynes v. Washington, 373 U.S. 503; 83

S. Ct. 1336; 10 L. Ed. 2d 513 (1963). The voluntariness

doctrine in state cases encompasses all interrogation prac-

tices which are likely to exert such pressure upon an in-

dividual so as to disable him from making a free and

rational choice. Miranda v. Arizona, 384 U.S. 436; 86

S. Ct. 1602; 16 L. Ed. 2d 694 (1966). The question must

be resolved in the light of the totality of the circum-

stances. Procunier v. Atchley, 400 U.S. 446; 91 S. Ct.

485; 27 L. Ed. 2d 524 (1971). A confession extorted by

mental coercion is as involuntary as one extorted by vio-

lence or threats of violence. Gladden v. Holland, 366

F. 2d 580 (9th Cir. 1966).

The admissibility of ‘‘self-implicating statements’’ is

to be judged by the standards of admissibility applicable

20

to a confession where constitutional principles are in-

volved. United States v. Robinson, 439 F. 2d 553 (D.C.

Cir. 1970) (rehearing den. 1971). When circumstances

presented for review involve two incriminating statements,

the former being ruled involuntary, the admissibility of

the latter depends upon the same test—is it voluntary?

The fact that the earlier statement was obtained by co-

ercion is to be considered in appraising the character of

the later confession. The effect of the earlier abuse may

be so clear as to forbid any other inference than that it

dominated the mind of the utterer to such an extent that

the later statement is involuntary.

Where the relationship between an earlier and admitted

involuntary statement and a subsequent statement is so

close that one must say the facts of one control the char-

acter of the other, the later statement is involuntary as

a matter of law. Leyra v. Denno, 347 U.S. 556; 74S. Ct.

716; 98 L. Ed. 948 (1954). In Leyra, both incriminating

statements were extracted within a period of approxi-

mately five hours and both were parts of one continuous

process. In the instant case, Fontacchio, one of the ab-

ductors, himself described the kidnapping from the ab-

duction at Mt. Ida to the discovery of the body at Sears,

Roebuck as ‘‘one continuous event’’ (Tr. 628). The pe-

titioner does not contend that a witness’s testimony is

necessarily controlling on this question but submits that

this testimony corroborates the contention that the mental

duress effectuated by the abduction continued until 7 p.m.

on December 9, 1971 which was the first time the peti-

tioner was free to leave with the acquiescence of the group

who had originally kidnapped him (A, 94).

In Clewis v. Texas, 386 U.S. 707; 87 S. Ct. 1338; 18

L. Ed. 2d 423 (1967), in holding a third statement made

by the defendant to have been involuntary, the Court,

21

in determining the question, held that the facts relating

to the third statement could r>t be separated from the

circumstances surrounding the two earlier statements when

there was no break in the stream of events. This crite-

rion, the petitioner submits, is directly applicable to the

instant factual situation.

The Court in United States v. Bayer, 331 U.S. 532;

67 S. Ct. 1394; 91 L. Ed. 1954 (1947), faced with the is-

sue of admissibility of a second incriminating statement

stated as follows (at page 540):

‘‘Of course, after an accused has once let the cat

out of the bag by confessing, no matter what the in-

ducement, he is never thereafter free of the psycholog-

ical and practical disadvantages of having confessed.

He can never get the cat back in the bag. The secret

is out for good. In such a sense, a later confession

always may be looked upon as fruit of the first.’’

In Gladden v. Holland, supra, the court, examining the

totality of the circumstances, vitiated a plea of guilty

entered subsequent to a confession found to be involun-

tary. The Gladden court noted that the guilty plea had

been entered within two or three hours after the coerced

confession had been given and analogized the problem to

that presented when a second confession is claimed to be

vitiated by an earlier coerced confession.

In Gilpin v. United States, 415 F. 2d 638 (5th Cir. 1969),

where a first confession was ruled involuntary and a

subsequent confession was obtained by officials armed with

the earlier involuntary statement, the court held that

the later confession was so closely connected with the

former that it was not the product of a free and unfet-

tered choice. The court determined the existence of a

causal relationship between the earlier unconstitutional

22

conduct and the later statement. See also Harney v.

United States, 407 F. 2d 586 (5th Cir. 1969).

In Beecher v. Alabama, 389 U.S. 35; 88 S. Ct. 189; 19

L. Ed. 2d 35 (1967), an accused confessed under gun-

point at the time of his arrest. This was given signifi-

cant weight in holding involuntary a statement given by

the accused five days later, after being informed of his

rights to remain silent and to representation by counsel,

in view of the fact that during the five days the accused

had been in custody in a prison infirmary undergoing

treatment for a bullet wound in his leg. Is not this cus-

tody subsequent to an involuntary statement analogous

to the perpetuation of the petitioner’s abduction from

4:15 p.m. to 7:30 p.m. on December 9, 1971? See also

United States ex rel. Hughes v. McMann, 405 F. 2d 773

(2d Cir. 1968).

The kidnapping of the petitioner commencing at 7: 30 p.m.

December 8, 1971, and terminating some 24 hours later

was one continuous event. There was no break in the

causal relationship between the occurrences prior and sub-

sequent to 4:15 p.m. on December 9, 1971. Even the trial

court found it ‘‘difficult to understand’’ (A. 81) why

a relationship of confidence and friendliness arose be-

tween Ferreri and the petitioner. Why, of all people,

would the petitioner designate Ferreri as a confidant,

the same Ferreri who administered the only conceded vio-

lence to the petitioner at the time of his abduction from

Mt. Ida and at whose back the petitioner ‘‘menacingly”’

held a knife? (A. 92.) If an individual is being beaten

and/or threatened by his inquisitors, and as a result

thereof his will is overcome, can his actions be deemed

to be ‘‘voluntary’’? The petitioner’s lack of resistance,

commencing in the afternoon of December 9, 1971 was

the direct result of threats, duress, intimidation, fear and

23

violence. Must someone who is thus victimized bear the

burden of risking his life by attempting to escape at

every possible opportunity and by continuing to resist ad

infinitum? To answer this question affirmatively is to,

in effect, forever obviate any set of circumstances under

which an incriminating statement may be deemed invol-

untary. The inevitable conclusion thereof would be the

promulgation of a doctrine wherein submission erases

the legal effect of the coercion which caused it.

The trial court placed great emphasis on the petitioner’s

failure to cry out in the presence of Chief David Tyler and

Reno Liimatainen as the group was leaving the cabin

at 4:15 p.m. on December 9, 1971. He had, however,

been subjected, immediately prior thereto, to kidnapping,

threats, duress, intimidation, fear, and violence, all of

which had culminated a 15 month period of both mental

and physical harassment. There was no evidence to the

effect that the petitioner knew that David Tyler was the

chief of police. If he actually saw Mr. Liimatainen point-

ing the shotgun why must it have been necessary for

him to determine whether he was in the presence of

friend or foe? The testimony of both Tyler and Liima-

tainen reflects that as they were approached by the group

emerging from the cabin, two individuals ‘‘broke off’’

from the group and were heading towards the GTO auto-

mobile. Could not have Ferreri been ‘‘escorting’’ the

petitioner to the motor vehicle for the specific purpose

of preventing his outery? The sketch attached to the

record by the trial court (A. 86) itself reflects that the

petitioner was farthest from Liimatainen at the time of

the conversation between Fisher and Tyler. The peti-

tioner was without his glasses, but, assuming arguendo,

that he actually saw Mr. Liimatainen with the shotgun,

did the survival of his constitutional rights, under all of

24

the circumstances, depend upon whether or not he at-

tempted an escape, the success of which can only be specu-

lative?

Similarly, the trial court attached great significance

to the petitioner’s failure to yell or run away at the

Sears, Roebuck parking lot at which other people were

present. If these unaware Christmas shoppers were in

such close proximity to the petitioner, why did not one

of them observe Ferreri being followed by the petitioner

openly and ‘‘menacingly’’ holding a knife? In this day

and age, when it is not unusual for non-involved persons

to stand idly by while a vicious assault or murder is be-

ing committed in their presence, should an escape obliga-

tion be imposed upon the petitioner, with the consequences

of his non-compliance therewith being the attrition of his

constitutional rights? Did not the presence of his five

abductors constitute more of a controlling influence upon

the petitioner than the proximity of strangers whose re-

action, if any, can only be hypothesized? Having been

kidnapped on a college campus, in the midst of college

activities and in the presence of a special police officer,

why should a Sears, Roebuck parking lot constitute a

mandatory haven wherein continued submission to coer-

cion is interpreted as voluntary conduct?

To conclude, with the benefit of hindsight, that the pe-

titioner should have remained silent, attempted escape or

consistently remained adamant to his five abductors, in

no way takes into consideration the subjective effect of

being kidnapped following a 15 month period of harass-

ment, as is present in the instant case. What a reasona-

ble man should do under the existing circumstances, as

distinguished from that which he hypothetically might

have done, should be the standard for determining the

voluntariness or lack thereof with regard to his conduct.

25

Surely, the petitioner should not be deprived of his con-

stitutional rights because he fervently desired the sanc-

tuary of his home. The alleged fact that Ferreri ‘‘trusted’’

the petitioner reflects only the former’s state of mind.

To succumb to brutality is the complete antithesis of vol-

untary action.

Thus, the petitioner respectfully submits that all of

the coercion found to have existed by the trial court prior

to 4:15 p.m. continued and indeed caused the adherence

of the petitioner to his captors’ demands.

It can not be said that the petitioner was not com-

pelled to utter statements and engage in conduct when

but for the improper influence exerted upon him he would

have remained silent. Bram v. United States, 168 U.S.

532; 18 S. Ct. 183; 42 L. Ed. 568 (1897).

Il. Tue Incrtminatinc STATEMENTS AND ACTIONS OF THE

PETITIONER SuBSEQUENT TO 4:15 p.m. on DecEMBER 9, 1971,

Were Exciupasie as ‘‘FRuiTs oF THE Potsonous TREE”’

AND/OR UNDER THE ‘‘Cat Out or THE Baa’’ Doctrine,

AS THE Direct Propucts oF THE EariieR CoerceD StateE-

MENTS.

The trial court, in rejecting the application of the ‘‘fruit

of the poisonous tree’’ doctrine stated: ‘‘I can find no

ease which has ever held that the ‘poisoned fruits’ doc-

trine is applicable to private persons’’ (A. 114). Al-

though it has been held that the Fourth Amendment, as

it pertains to the protection against unreasonable searches

and seizures, was intended only as a restraint on the ac-

tivities of sovereign authorities (Burdeau v. McDowell,

956 U.S. 465; 41 S. Ct. 574; 65 L. Ed. 1048 (1921)), the

petitioner submits that any analogy thereto, when deal-

ing with involuntary statements, should not be well taken;

26

for involuntary statements to private individuals are in-

admissible per se, without the necessity of those effecting

the coercion being state or federal officers. Thus, invol-

untary statements given to private individuals, inadmissi-

ble ab initio, should be embraced by the extension of the

‘‘fruit of the poisonous tree’’ doctrine; and, indeed, by

way of converse response to the trial court, the petitioner

submits that there exists no case ruling negatively upon

this proposition. The need to protect personal security

from private as well as public invasion is certainly an

important factor, and the controlling matter is the unfair-

ness of the use of evidence improperly obtained by pri-

vate individuals and the degrading of the judicial system

that must necessarily accompany that use. Common sense

supports such a conclusion.

Alternatively, the trial court found that the discovery

of the body near Sears, Roebuck was not a ‘‘fruit’’ of

the original involuntary statement since this evidence

‘did not flow from this statement,’’ and that ‘‘the con-

nection between the illegality and the evidence offered is

so attenuated as to dissipate the taint’? (A. 115). The

trial court, in so holding, cited Nardone v. United States,

308 U.S. 338; 60 S. Ct. 266; 84 L. Ed. 307 (1939), but

that case, however, did not address itself to the question

of what attenuation would be sufficient to dissipate the

taint of the initial illegality. Moreover, the Nardone Court

held that the statute prohibiting the unauthorized publi-

cation of out-of-state or foreign communications by wire

or radio did not merely interdict the introduction into

evidence in a federal trial of the intercepted telephone

conversations and therefore leave the prosecution free

to make every other derivative use of the proscribed evi-

dence. The Nardone Court reversed, holding that the trial

judge had improperly refused to allow the accused to

27

examine the prosecution as to the uses to which it had

put the illegally obtained information.

A distinct standard was provided in Wong Sun v.

United States, 371 U.S. 471; 83 S. Ct. 407; 9 L. Ed. 2d

441 (1963) in which the Court stated (at page 488):

‘‘(T]he more apt question in such a case is ‘whether,

granting establishment of the primary illegality, the

evidence to which instant objection is made has been

come at by exploitation of that illegality or instead

by means sufficiently distinguishable to be purged of

the primary taint.’ ”’

The issue was again formulated in Harrison v. United

States, 392 U.S. 219; 88 S. Ct. 2008; 20 L. Ed. 2d 1047

(1968). Therein, the prosecution introduced three con-

fessions of the defendant. The defendant then took the

stand and gave his version of the crime which placed him

at the scene of the crime with the murder weapon but

attributed his presence to a lawful purpose and the dis-

charge of the gun to accidental causes. Harrison was con-

victed, but on appeal the conviction was reversed on the

ground that the confessions were erroneously admitted.

At a subsequent trial, the prosecution introduced Harri-

son’s testimony at the prior trial. The Supreme Court

reversed, holding that the trial testimony was the fruit

of the inadmissible confession and therefore subject to

exclusion. Responding to the argument that the tactical

decision to testify attenuated the taint, the Court simply

replied that ‘‘the question is not whether [Harrison] made

a knowing decision to testify, but why’’ (Harrison at 223).

‘‘Having [used] the petitioner’s unlawfully obtained con-

fessions against him, the Government must show that its

illegal action did not induce his testimony’’ (Harrison

at 225). If illegally obtained evidence leads to the dis-

28

covery of subsequent evidence, there exists a taint caused

by the initial illegality. See United States v. Schipani,

289 F. Supp. 43 (E.D. N.Y. 1968) afd. 414 F. 2d 1262

(2d Cir. 1969).

In Wong Sun, supra, the defendant had been taken into

custody under circumstances which the Court found to con-

stitute an improper arrest. He was, however, released

on his own recognizance. He returned ‘‘voluatarily’’ sev-

eral days later for interrogation. During ihat interroga-

tion, he made incriminating oral statements. The Wong

Sun Court’s finding of sufficient attenuation to dissipate

the taint was predicated upon the period of freedom en-

joyed by the defendant between the initial illegality and

the subsequent incriminating statements. No such break

in the chain of events exists in the instant case.

In Fisher v. Scafati, 439 F. 2d 307 (1st Cir. 1971), a

written confession was preceded by an illegally obtained

oral confession, and all that intervened between the two

confessions was a full warning of right to counsel and

right to remain silent, which warnings did not inform the

defendant that the oral confession was inva'id and could

not be used against him. The court assumed that the ini-

tial illegal oral confession could have led the defendant

to a belief that he was trapped, noting that the defendant

had ‘‘proceeded gradually into a state of inescapable in-

volvement,’’ and excluded the second written confession

as having been tainted by the first. See also Gladden v.

Holland, supra, at 584.

In United States ex rel. Townsend v. Twomey, 322

F. Supp. 158 (N.D. Ill. 1971) the defendant’s confession

to murder was ruled involuntary. In said confession he

gave information which led to the finding of the victim’s

wallet, where he said he threw it. The court excluded

the wallet stating that its use ‘‘contravenes the long estab-

lished doctrine against using fruit of the poisonous tree’’

(Townsend, at 177).

29

In United States v. Killough, 218 F. Supp. 339 (D. D.C.

1963), the court found a dissipation of the taini since

after giving an inadmissible confession to the police the

defendant was afforded adequate time for deliberate re-

flection prior to making a subsequent incriminating state-

ment which was in no way effected by coercion or other

improper inducement. Such facts, giving rise to taint dis-

sipation, are completely absent in the instant case. It is

interesting to note that upon appeal, the United States

Court of Appeals for the District of Columbia Circuit

reversed, ruling that the second incriminating statement

was inadmissible since it was made to a ‘‘classification

intern’’ at the District of Columbia jail and the defend-

ant had not been advised that it would not be used against

him and where, had he made such inquiry, he would have

received a promise that his statements would not be used

against him. Killough v. United States, 336 F. 2d 929

(D.C. Cir. 1964).

The facts of the instant case in no way establish that

the alleged ‘‘fruits’’ would have been discovered even

had the original illegality not occurred. On the contrary,

there is an unequivocal and inescapable ‘‘but for’’ causal

relationship between the occurrences prior and subsequent

to 4:15 p.m. December 9, 1971. In addition to empha-

sizing this direct causal relationship, the petitioner re-

spectfully submits that the exclusionary ‘‘fruit of the

poisonous tree’’ rule, especially in the context of the in-

stant case, is required for reasons independent of its

effectiveness in deterring the underlying invasion of per-

sonal rights. Reliance by courts on evidence obtained by

such means may well violate a public ‘‘sense of fairness,”’

thereby decreasing respect for the judicial system and

ultimately working to its disadvantage. There exists an

inherent unfairness in the use of evidence obtained as in

30

the bestant case to the detriment of the one whose rights

are violated, without regard to the effectiveness of exclu-

sion on the protection of these same constitutional rights.

Thus the petitioner submits that all of his conduct sub-

sequent to 4:15 p.m. ‘‘flowed’’ from all that had trans-

pired prior thereto and constitutes a classic example of

‘‘fruits of the poisonous tree.’’

III. Tue Srarements or tHe Petitioner Made ro Pouce

OFFICERS AT THE Massacnusetrs GENERAL HospiTaL on

DecemBerR 10, 1971, sHOULD HAVE BEEN SUPPRESSED FOR

ALL Purposes Because (A) Tuey Were Invotuntary

or (B) THey were Nor Emsracep sy Harris v. New

YORK, SUPRA, HAVING BEEN E.icitep as a Resvutr or In-

TENTIONAL PoLice Misconpwcr.

The trial court suppressed the statements complained

of for purposes of the Commonwealth’s case-in-chief but

allowed their potential use for the limited purpose of im-

peachment, all under the decision of Harris v. New York,

401 U.S. 222; 91 S. Ct. 643; 28 L. Ed. 2d 1 (1971).

A. The petitioner’s first contention is that these state-

ments were made involuntarily and should have been sup-

pressed for any purpose whatsoever.

The pre-trial testimony of Police Officer Francis Shee-

han, one of the interrogators on the day in question re-

vealed the following:

1. When he and Sgt. Daley introduced themselves to

the petitioner and told him that they were there as a

result of a body being found earlier that evening in the

area of Sears, Roebuck, the petitioner did not answer

(Tr. 1977).

31

2. The interrogation commenced in a hospital room and

the petitioner was subsequently wheeled out in his bed

to the hospital corridor (Tr. 1978).

3. The petitioner advised that he ‘‘did not want to talk

about it’? and when questioned would answer ‘‘l want to

talk to my parents’’ (Tr. 1978).

4. During the first hour of interrogation, the petitioner

said nothing, and would not respond to police questions

(Tr. 1995).

5. Some questions were met with a delayed answer

and others by complete silence (Tr. 1995).

6. So intense was the interrogation that the police offi-

cers were told by a hospital nurse that they were dis-

turbing other patients (Tr. 1996).

7. The questioning of the petitioner in the hospital cor-

ridor continued for approximately 45 minutes before he

was moved into a second hospital room. No incriminating

statements were made by the petitioner while he was in

his original room or while he was in the hospital corridor

(Tr. 2000).

8. Although the police officers received permission from

the nurse to interrogate the petitioner, they did not in-

dicate to the nurse the extent of their investigation (Tr.

2003).

9. When the nurse received telephonic permission from

a physician for the police officers to interrogate the pe-

titioner, she was given no information to relay to the

doctor, to whom her request was addressed, regarding the

purpose or seriousness of their visit with the petitioner

(Tr. 2005).

10. At the time of the interrogation Officer Sheehan

knew that the petitioner had just been abducted and had

received a beating (Tr. 2008).

11. The petitioner’s eye was swollen to the extent that

the pupil could not be seen (Tr. 2011).

32

12. When the petitioner was shown the ‘‘ Miranda card,”’

his condition was such that, in order to read it, he had

to bring it to within inches from his face (Tr. 2012).

13. With regard to the incriminating statements ob-

tained from the petitioner, ‘‘It was difficult there to get

it out of him. You know, it was very slow’”’ (Tr. 2031).

Sgt. John J. Daley, who also interrogated the peti-

tioner on December 10, 1971, testified to the following:

1. During the course of the entire interrogation no

signed statement was obtained by the officers (Tr. 2217).

2. The first question put to the petitioner was, ‘‘George,

do you want to tell us what happened? Were you with

the girl that night?’’ The petitioner’s answer was ‘‘ Where

are my parents?’’ (Tr. 2221.)

3. When the petitioner made this first request regard-

ing the whereabouts of his parents, the police response

was, ‘‘They are home, I assume. This is your decision.

You are 21 now and it’s entirely your decision. Were

you with the girl that night?’’ The petitioner did not

answer (Tr. 2221).

4. During the interrogation of the petitioner in the first

hospital room and subsequently in the corridor, he indi-

cated that he wanted his parents present before any ques-

tions were asked; he did not willingly and freely volunteer

any information (Tr. 2224).

5. At no time did the petitioner say, even in substance,

that he was voluntarily making a statement knowing he

didn’t have to if he didn’t want to (Tr. 2225).

6. The police officers were not confronted with a sit-

uation where the petitioner’s conduct was such that they

could say with intelligence that he waived his rights to

remain silent (Tr. 2225).

7. The petitioner’s manner of speech was ‘‘halting’’

at times (Tr. 2231).

33

8. After being advised of his Miranda rights, the pe-

titioner asked for his parents ‘‘several times’ (Tr. 2234).

Even prior to Miranda, the test of voluntariness was

to examine the totality of the circumstances to determine

if the confession or admission was voluntarily made, i.e.,

the failure to grant the accused access to outside assis-

tance, including but not limited to his right to counsel.

Carter v. Eyman, 281 F. Supp. 776 (D. Ariz. 1968). A

failure to warn an accused person of his right to counsel

or to grant him access to outside assistance are factors

tending to prove the involuntariness of the resulting con-

fession. Johnson v. New Jersey, 384 U.S. 719; 86 S. Ct.

1772; 16 L. Ed. 2d 882 (1966). The denial of counsel to

a defendant at the outset of interrogation is a significant

factor in considering the voluntariness of the statements

later made. Davis v. North Carolina, 384 U.S. 737; 86

S. Ct. 1761; 16 L. Ed. 2d 895 (1966). The actions of po-

lice in denying an accused his right to counsel is to be

considered in determining whether a suspect’s statement

was made in the unfettered exercise of his own will.

Commonwealth v. Kleciak, 350 Mass. 679, 216 N.E. 2d

417 (1966).

In Haynes v. Washington, supra, the United States

Supreme Court held that a defendant’s written confes-

sion was involuntary and inadmissible where it was made

while the defendant was held by the police incommuni-

eado and after he was told by police officers that he could

not communicate by telephone with his wife, until he

made a written confession. The attending circumstances

in Haynes, where the defendant at first resisted making

a statement and gave in only after consistent denials of

his requests to call his wife, and the effectuation of such

outside contact being contingent upon his accession to

police demands is, the petitioner contends, analogous to

the situation at the Massachusetts General Hospital.

34

The petitioner was released by his kidnappers at

7:30 p.m. on December 9, 1971. Within 30 minutes there-

after he was at the Massachusetts General Hospital where

he remained until 3:30 am. the following morning, at

which time his interrogation commenced. With his kid-

napping experience as a subjective background, combined

with what must have been emotional and physical fatigue,

his initial refusal to respond to questions, his several

denied requests to see his parents, the deliberate police

circumvention of his right to his attorney, his being

shuffled from hospital room to corridor back to hospital

room, all support a finding of involuntariness. He was

subjected to ‘‘an extensive interrogation’’ (A. 119). The

fact that the petitioner answered some questions in a

‘‘halting’’ manner and declined to answer others is more

consistent with the trait of involuntariness than with the

‘‘eagey and calculated manner’’ found by the trial court

(A. 109). Accordingly, the petitioner submits that all

statements of December 10, 1971, were involuntarily made

and should have been suppressed for impeachment pur-

poses as well as case-in-chier presentation.

B. The petitioner alternatively submits that the Decem-

ber 10, 1971 incident is not embraced by Harris. Neither

the United States Supreme Court decision nor the deci-

sion of the New York Court of Appeals, People v. Harris,

25 N.Y. 2d 175, 250 N.E. 2d 349 (1969) reflect a detailed

factual account of the Harris case. Such an account,

however, can be found in the initial appellate decision

by the New York Supreme Court, 298 N.Y.S. 2d 245, 3t

A.D, 2d 828 (App. Div., 2d Dept. 1969).

The facts were as follows: subsequent to arrest the

defendant was apprised of his privilege to remain silent

and that anything he said might be used against him.

~ ——

35

Tie was then questioned, but prior to making any admis-

sions, he said he would like to speak to an attorney. The

assistant district attorney brought the questioning to a close,

told the defendant he had a right to counsel, and asked

him if he desired to speak to an attorney then. The de-

fendant replied that he would ‘‘call tomorrow.’’ He

asked what the charges against him were, and upon being

informed, volunteered the information that everybody in

his area was selling narcotics. After this statement, the

assistant district attorney posed a few questions which

defendant answered. The defendant said his answers

were voluntary and it was his decision to talk after re-

questing counsel.

No mention of these facts is reflected in the United

States Supreme Court decision. The violation of Miranda

is merely described by the statement that no warning of

a right to appointed counsel was given prior to the interro-

gation. The petitioner, therefore, submits that the Harris

decision must be interpreted in the light of the actual

Harris facts, i.e., a most technical violation of Miranda

accompanied by the defendant specifically stating that his

answers were voluntary.

Such is not the instant case, for here the trial court

found that the conduct of the police officers, in interro-

gating the petitioner, was a deliberate course of conduct

calculated to circumvent the petitioner’s constitutional

rights to have the benefit, aid, and counsel of his attor-

ney (A. 108). Detective Gawlinski’s presence at the hos-

pital but his absence at the locus of interrogation was

found by the trial court to be deception and cireumven-

tion (A. 119-120). The petitioner contends that the Harris

doctrine was not intended to embrace intentional police

misconduct, as distinguished from a technical violation

of Miranda.

36

Indeed, the United States Supreme Court has not ex-

tended the Harris doctrine to cases involving intentional

police misconduct nor has it been presented with such a

case. See Bryant v. North Carolina, 409 U.S. 995; 93

S. Ct. 329; 34 L. Ed. 2d 259 (1972) (defendant testified

at a rape trial and denied using force; police officers

thereafter testified to an admission of force made by the

defendant without prior Miranda warnings); Riddell v.

Rhay, 92 8. Ct. 337; 30 L. Ed. 2d 291 (1971) (wherein the

defendant, charged with assault, testified and denied

having the necessary intent whereupon he was impeached

by police testimony of his admission of intent uttered in

the absence of Miranda warnings).

If the Harris decision were to be extended to cases in-

volving deliberate police circumvention of constitutional

rights, an unreasonable burden would be imposed upon

an accused’s right to testify in his own behalf. Although,

as the majority in Harris pointed out, a criminal defend-

ant who seeks to testify cannot demand immunity from

all impeachment, the propriety of permitting impeachment

of a specific kind must be a matter of balancing the value

of the impeaching evidence against the costs of its ad-

mission. Given the suspicion which a violation of con-

stitutional rights, based upon deiiberate police misconduct,

casts upon the reliability of a statement, the probative

value of the statement would seem to be outweighed by

the costs of burdening a defendant’s decision to testify,

of diluting the deterrent impact of the exclusionary rule,

and of aligning the courts with the lawless police inter-

rogator.

By emphasizing the necessity of voluntariness as a con-

dition precedent to evidentiary impeachment, the Harris

Court in no way eroded the right to due process of law

embodied by the Fifth and Fourteenth Amendments. Ac-

37

cordingly, the petitioner contends that Harris should not

be interpreted as obviating the Sixth Amendment right

to assistance of counsel effectuated by judicially deter-

mined intentional police misconduct.

Thus, for this reason as well, the petitioner contends

that his right to testify in his own behalf should not

have been impeded by the permitted use for impeachment

purposes of his hospital statements of December 10, 1971.

Conclusion.

In declining to suppress the conduct of the petitioner

from 4:15 p.m. to 7:30 p.m. on December 9, 1971, in-

cluding but not limited to his conduct leading to the dis-

covery of the body of the deceased, the trial court erred

for the following reasons: |

1. der the ‘‘totality of the cireumstances’’ (as herein-

after set forth) the coercive circumstances, as they affected

the petitioner from September 15, 1970 to 4:15 p.m. on

December 9, 1971, constituted such a flagrant degree of

duress so as to render the petitioner’s conduct, from the

commencement to the termination of his abduction, invol-

untary and therefore inadmissible. These circumstances

do not justify the ‘‘cut-off’’ time of 4:15 p.m. as consti-

tuting a cessation of that degree of terrorization which

effectuated the petitioner’s involuntariness. The kidnap-

ping, in the context of the preceding 15 month period of

constant harassment, physical and otherwise, was a com-

plete and unbroken event in its entirety. Any change in

behavior on the part of the petitioner was the direct re-

sult of the extreme pressure put to him and did not con-

stitute, as the trial court found, a transformation in his

relationship with the Worthington Five from ‘‘abductors’’

to ‘‘confidants.’’ The involuntariness of the petitioner

38

continued until his release at 7:30 p.m. on December 9,

1971. The coercion prior to 4:15 p.m. and the results

thereof, permeated and caused the petitioner’s conduct

until he was physically set free. Accordingly, his ‘‘sec-

ond confession’’ (his incriminating conduct from 4:15 p.m.

to 7:30 p.m.) was so tainted by the immediate prior co-

ercion so as to render his conduct involuntary and in-

admissible.

2. The conduct of the petitioner from 4:15 p.m. to

7:30 p.m., being the direct result of what had immediately

preceded it, was tainted under the ‘‘fruit of the poisonous

tree’’ doctrine and was therefore inadmissible.

The statements by the petitioner to police officers at

the Massachusetts General Hospital on December 10, 1971

should have been suppressed for any purpose whatsoever.

The circumstances attending same are not embraced by

Harris v. New York, supra, for in this instance the trial

court found that the police officers did engage in a course

of conduct deliberately calculated (A. 108) to cireumvent

the petitioner’s constitutional rights to have the benefit,

aid, and counsel of his attorney and that the conduct of

Detective Gawlinski, who was present at the hospital, but

remained downstairs during the petitioner’s interrogation

by other police officers amounted to ‘‘deception and cir-

cumvention’’ (A. 119). The petitioner contends, as more

fully hereinafter set forth, that the facts of Harris and

consequently the holding based thereupon, do not embrace

intentional police misconduct as distinguished from a tech-

nical violation of the rights prescribed in Miranda v.

Arizona, supra.

Moreover, the petitioner contends that his hospital

statements were, in view of the ‘‘totality of the cireum-

stances’’ involuntary (indeed, the trial court distinctly

found no voluntary waiver of right to counsel by the pe-

- em

Oe a ll inn te

39

titioner) and, in addition, constituted ‘‘fruits of the poi-

sonous tree,’’ the taint coming from the illegal acts of

private persons as hereinabove and hereinafter stated.

For these reasons, a writ of certiora:: should issue to

review the judgment and opinion of the Supreme Judicial

Court of the Commonwealth of Massachusetts.

Respectfully submitted,

GERALD ALCH,

One Center Plaza,

Boston, Massachusetts 02108.

(617) 742-5566

Attorney for the Petitioner.