Opposition — Mahnke v. Massachusetts

a

Supreme Court, Um,

F i L E D es

12 1976

In the MICHAEL RODAK, JR., CLERK |

Supreme Court of the United States.

Ocroser TERM, 1975.

Nn. €5°-1302

GEORGE WAYNE MAHNKE,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS.

Brief of Respondent, Commonwealth of Massachusetts,

in Opposition to Petition for Writ of Certiorari.

NEWMAN A. FLANAGAN,

Special Assistant Attorney General,

New Court House,

Boston, Massachusetts 02108.

(617) 723-9700

On the Brief:

TrmorHy MICHAEL BuRKE,

Northeastern University

Law Student.

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

Questions presented

Statement of facts

Reasons for denial of the writ

I. This petition brings no issue which is properly

the subject of a writ of certiorari

Hi. The state courts rightly concluded that the

petitioner's post 4:15 p.m. admissions were the

result of his “changed attitude,” constituting a

significant “break in the stream of events,” and

properly held them to be admissible

III. The state courts properly found that the

petitioner's statements and actions subsequent to

4:15 p.m. were admissible and were not ex-

cludable either under the “cat-out-of-the-bag”

theory or as “fruits of the poisonous tree”

IV. Statements made by petitioner at Massachu-

setts General Hospital were properly held to be

voluntary and admissible for purposes of im-

peachment under Harris v. New York, 401 U.S.

222, 91 S. Ct. 643, 28 L. Ed. 1 (1971)

Conclusion

Table of Contents.

CASES.

Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88

L. Ed. 2d 1192 (1944)

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

Ed. 2d 35 (1967)

10

14

18

21

10, 19

12

ii TABLE OF AUTHORITIES CITED.

Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65

L. Ed. 1048 (1921) 18

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

Ed. 2d 423 (1967) 10, 11,

12, 14, 18, 19

Darwin v. Connecticut, 391 U.S. 346, 88 S. Ct. 1488,

20 L. Ed. 2d 630 (1968) 14, 19

Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761,

16 L. Ed. 2d 895 (1966) 10, 19

Evans v. United States, 375 F. 2d 355 (8th Cir. 1967) 13

Fisher v. Scafati, 439 F. 2d 307 (1st Cir. 1971) 17

Garner v. Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L.

Ed. 2d 207 (1961) )

Gilpin v. United States, 415 F. 2d 638 (5th Cir. 1969) 13

Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 69 S. Ct.

535, 94 L. Ed. 1392 (1949) 8

Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed.

496 (1948) 17

Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28

L. Ed. 2d } (i971) | 2, 6, 18,

20, 21, 22

Haynes v. Washin, on, 373 U.S. 503, 83 S. Ct. 1336,

10 L. Ed. 24 51s (1963) 8

Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L.

Ed. 2d 726 (1963) 7

Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 7) , 94 L.

Ed. 948 (1954) 12, 20

Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86

L. Ed. 166 (1941) 20

TABLE OF AUTHORITIES CITED. iii

Lyons v. Oklahoma, 322 U.S. 596, 64 S. Ct. 1208, 88

L. Ed. 432 (1944) 8, 10

Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266,

84 L. Ed. 307 (1939) 14, 16

Oregon v. Hass, _____ U.S. F (March

19, 1975) 43 U.S.L.W. 4417 21, 22

Procunier v. Atchley, 400 U.S. 446, 91 S. Ct. 485, 27

L. Ed. 2d 524 (1971) 10

Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d

948 (1961) 13, 19

Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L.

Ed. 2d 1265 (1959) 7

Thompson v. City of Louisville, 362 U.S. 199, 80S. Ct.

624, 4 L. Ed. 2d 654 (1960) 8

United States v. Antonelli, 434 F. 2d 335 (2d Cir. 1970) 17

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

91 L. Ed. 1654 (1947) 10, 13, 18

United States v. Casteel, 476 F. 2d 152 (10th Cir. 1973) 17

United States v. Goldberg, 330 F. 2d 30 (3d Cir. 1964) 18

Watts v. Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L.

Ed. 1801 (1949) 7

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

407, 9 L. Ed. 2d 441 (1963) 16

In the

Supreme Court of the United States.

Octoser Term, 1975.

No.

GEORGE WAYNE MAHNKE,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS.

Briet of Respondent, Commonwealth of Massachusetts,

in Opposition to Petition for Writ of Certiorari.

To the Honorable, the Chief Justice, and the Associate

Justices of the United States Supreme Court:

The Commonwealth of Massachusetts respectfully requests

that the issuance of a writ of certiorari to review the judgment

and opinion of the Massachusetts Supreme Judicial Court,

entered in said case on October 7, 1975, be denied.

9

Questions Presented.

I. Whether the state courts were correct in their factual

determination that petitioner's post 4:15 p.m. admissions were

the result of his “changed attitude,” constituting a significant

“break in the stream of events,” and thereby properly held

admissible.

Il. Whether the state courts were correct in finding that

petitioner's statements and actions subsequent to 4:15 p.m.

were voluntary and not excludable under either the “cat-out-

of-the-bag” theory or as “fruits of the poisonous tree.”

III. Whether the state courts were correct in ruling that

statements made by petitioner at the Massachusetts General

Hospital were voluntary and admissible, for purposes of im-

peachment, under Harris v. New York, 401 U.S. 222, 91 S.

Ct. 643, 28 L. Ed. 2d 1 (1971).

Statement of Facts.

The events which form the basis for the petition evolved

from efforts on the part of private citizens who sought to

provide an explanation for the mysterious disappearance of

Rhonda Bornstein, a nineteen-year-old woman.

Following notification of Ms. Bornstein’s disappearance, a

general investigation was conducted by Boston police and

ultimately by Detective Stanley Gawlinski who first became

assuciated with the case in December of 1970 (Appendix 5,

70).* Initially, the petitioner Mahnke was twice interviewed

by Boston police as the last person known to have seen Ms.

* Hereinafter the Appendix will be cited as follows: (A. ).

3

Bornstein on the evening of her disappearance, September 15,

1970 (A. 5, 70). Despite inconsistencies in Mahnke’s state-

ments (A. 4), there was no firm indication that a crime had

been committed. The investigation by Boston police con-

tinued, but failed to determine the cause of the victim's dis-

appearance or her location.

During the fifteen-month period Rhonda was missing, her

father and brother, Manuel and Jordan Bornstein, respectively ,

along with several friends of the Bornstein family, conducted

an intensive investigation into her whereabouts (A. 5-6, 71-72).

For the most part, these friends of the family, styled the “con-

cerned group” by the trial judge, included: James Ferreri,

Frank Fontacchio, Gary Fisher, John (Jay) Campbell and

Joseph (Jay) Heard (A. 5-6, 70).

Convinced that petitioner was the key to the disappearance

of his daughter and frustrated with the progress of the police

investigation, Manuel Bornstein and the “concerned group”

entered upon a course of conduct designed to compel Mahnke

to answer questions which they felt he alone could resolve.

These unsanctioned, private activities encompassed a continu-

ing program of surveillance and harassment which culminated

in Mahnke’s forceful abduction from Mount Ida Junior College

during the early evening of December 8, 1971 (A. 67, 73-74).

Although the confrontation had been planned, the abduction

was not. In a spontaneous and unpremeditated move,

Mahnke was transported to an isolated hunting cabin in

Worthington, Massachusetts (A. 7, 75). The abductors had no

key to the lodge, but had to break a pane of glass to get in (A.

7, 77). Mr. Bornstein, who followed in a second car, had no

knowledge of where they were going and soon lost the car

with Mahnke and his abductors (A. 74).

In the cabin, Mahnke was subjected to extensive questioning

and intimidation by his abductors (A. 8, 79). Notwithstanding

the intimidation, Mahnke and one of his captors, James Ferreri,

4

established a relative degree of friendship that eventually

developed into a relationship of mutual trust between them

(A. 9, 81, 95). (This relationship is set out more fully in the

trial judge's initial and supplementary findings of fact (A. 81,

127).)

As a result of the intimidation exerted by the group while in

the cabin, Mahnke made certain admissions there to Ferreri

and Campbell relative to the victim's death and location of her

body (A. 8-9, 81-82). Thereupon, all hostility and intimida-

tion on the part of the group towards petitioner ceased (A. 9,

83). No further attempt was made to elicit additional in-

formation from him (A. 9, 83). In turn, Mahnke’s conduct

towards the group became voluntary and cooperative (A. 83,

87. 95). Mahnke later evidenced this changed attitude by

confiding to Ferreri his relief at having finally disclosed his

secret, simultaneously referring to Ferreri and Campbell as

“the first friends I have had in fifteen months” (A. 9, 83).

This relationship continued from the time the incriminating

statements were made until departure from the cabin at

approximately 4:15 p.m. on December 9, 1971 (A. 83-84).

As the group left the cabin, they were confronted by two

hunters, later identified as the Worthington chief of police,

David Tyler, and one Reino Liimatainen, who had a loaded

shotgun in his possession (A. 9, 84-87). Both men had become

suspicious of the group's presence at the cabin and inquired of

them (primarily Fisher) their purpose (A. 9, 85). While Tyler

questioned Fisher, Liimatainen stated in a loud and menacing

manner that “If there is any funny business I will blow your

guts out” (A. 10, 85). During the course of this conversation,

the entire group was under the immediate physical control of

Tyler and Liimatainen (A. 10, 85). If he so desired, Mahnke

was free to have effectuated his release, but deliberately chose

net to do so (A. 85-87).

5

Fisher apparently satisfied Tyler that their presence at the

cabin was lawful, for the group was detained no further (A.

10, 87). As they left, Mahnke remarked to Ferreri, “See, I

could have gotten away if I wanted to, but I didn’t” (A. 10,

87).

Mahnke then directed Ferreri to drive to the Sears, Roebuck

parking lot in Boston’s Fenway district (A. 10, 88), voluntarily

contributing a small sum to the toll paid at the Massachusetts

Turnpike exit (A. 88). While crossing a bridge over the Metro-

politan Boston Transit Authority (M.B.T.A.) tracks, Mahnke

gestured towards an island in the middle of the roadway and

stated to Ferreri, “That's where it happened” (A. 88).

While near the Sears building, Mahnke disclosed additional

information not previously stated at Worthington (A. 89, 90,

93). Mahnke verbally described the site of the grave to

Ferreri (A. 10, 89), whe left to search for its location, but

returned shortly. confused as to the description given (A. 89).

During Ferreri’s brief absence Mahnke casually stated to

Heard, without solicitation, that he (Mahnke) had indeed

killed Rhonda Bornstein (A. 10, 93).

The trial court also found that Mahnke expressed no fear of

culpability for Ms. Bornstein’s death (A. 93, 128). In assessing

his legal chances, Mahnke declared to Heard that “he wasn’t

worried about the consequences because the ‘concerned group’

were hostile citizens and their testimony would never hold up

in court. . .” (A. 93).

Mahnke subsequently accompanied Ferreri below the bridge

and directed him to the location of the grave (A. 89-90). He

then left Ferreri in the vicinity of the grave and returned by

himself to the parking area where he independently placed

himself in the company of Heard and Fisher (A. 90-91). At

this time, “if Mahnke had desired, he could easily and readily

have escaped from the control of the concerned group. . .”

(A. 91).

6

Mahnke was, upon request, driven to his home (A. 93-94)

and subsequently taken by his parents to Massachusetts Gen-

eral Hospital (A. 104) where he was interrogated by members

of the Boston police with respect to the death of Rhonda

Bornstein (A. 106-108). These statements, found to have been

voluntarily made (A. 109-110), were later suppressed and held

to be inadmissible (A. 122), except for the limited purpose of

impeachment under Harris v. New York, 401 U.S. 222, 224,

91 S. Ct. 643, 645, 28 L. Ed. 2d 1 (1971) (A. 122).

The trial judge also suppressed, as the direct product of

coercion, all statements made by Mahnke from his abduction

to the time of the departure from the cabin at 4:15 p.m.

(A. 112). However, Mahnke’s post 4:15 p.m. “statements and

actions leading to the discovery of the deceased” were held

adinissible as being voluntary and the product of a free will

(A. 112-114). In supplementary findings ordered upon

remand, the trial judge specified that “the facts surrounding

the initial admission in the cabin in Worthington did not con-

trol the character of or circumstances relating to subsequent

adrnissions made near the Sears and Roebuck store anu at the

Massachusetts General Hospital” (A. 126).

Reasons for Denial of the Writ.

I. THis Petition Brincs No IssvuE WHICH IS PROPERLY THE

Supyect oF A Writ oF CERTIORARI.

The crux of this petition concerns a factual dispute as to the

voluntariness of certain statements made by petitioner. Relief

is thus predicated solely upon a reexamination by this, Court of

the evidence bearing upon petitioner’s subjective intent. That

evidence has been comprehensively addressed by the trial

_

‘

judge’s detailed initial and supplementary findings made after

three days of hearings, during which petitioner himself testi-

fied at length.

[I]t is clear from the record that the trial judge conducted

the proceedings with extraordinary competence and

thoroughness... . Hennessey, J. (dissenting) (A. 62.)

Nor is the minority in dissent “willing to say that the judge

below was plainly wrong in his findings” (A. 26-27).

Thus petitioner seeks a factual resolution by this Court.

However, the United States Supreme Court

does not sit as in nisi prius to appraise contradictory

factual questions. .. . Ker v. California, 374 U.S. 23,

34, 83 S. Ct. 1623, 1630, 10 L. Ed. 2d 726 (1963).

As stated in Watts v. Indiana, 338 U.S. 49, 51-52, 69 S. Ct.

1347, 1348-49, 93 L. Ed. 1801 (1949),

[T]here has been complete agreement that any conflict

in testimony as to what actually led to a contested con-

fession is not this Court’s concern. Such conflict comes

here authoritatively resolved by . . . [the trial judge].

This is not to suggest that the Court is foreclosed from

“making our own examination of the record,” Spano v. New

York, 360 U.S. 315, 316, 79 S. Ct. 1202, 1203, 3 L. Ed. 2d

1265 (1959). Most respectfully, however, the instant case

involved factual inferences as to the petitioner's state of mind

which the trial judge was best positioned to make:

8

This is particularly apposite because the trial judge . . .

[is] closest to the trial scene and thus afforded the best

opportunity to evaluate contradictory testimony. Haynes

v. Washington, 373 U.S. 503, 516, 83 S. Ct. 1336, 1344,

10 L. Ed. 2d 513 (1963).

Moreover, as the Court indicated in Lyons v. Oklahoma, 322

U.S. 596, 602, 64 S. Ct. 1208, 1212, 88 L. Ed. 432 (1944):

. . where different inferences may fairly be drawn from

admitted facts, the trial judge and the jury are not only

in a better position to appraise the truth or falsity of the

defendant's assertions from the demeanor of witnesses but

the legal duty is upon them to make the decision.

The jury in the instant case, having received comprehensive

instructions on their duty to make an independent judgment as

to the voluntariness of petitioner’s statements, found, as in-

dicated by their verdict, that the admitted statements were

voluntarily made. In lieu of acceptance of the trial court’s

and jury's findings, this petition would require the Court to

assess 2,267 pages of pretrial testimony alone without benefit

of exposure to witness bearing or demeanor.

The findings made by the trial court have also been accepted

by the highest appellate court for the Commonwealth of Mas-

sachusetts. Such concurrence, the Commonwealth respectfully

submits, would effectively restrict the grant of certiorari except

in the presence “of a very obvious and exceptional showing of

error.” Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275, 69

S. Ct. 535, 538, 94 L. Ed. 1392 (1949). While certiorari has

been granted to ameliorate “obvious” error in such cases as

Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S. Ct.

9

624, 629, 4 L. Ed. 2d 654 (1960), and Garner v. Louisiana,

368 U.S. 157, 173-174, 82 S. Ct. 248, 257, 7 L. Ed. 2d 207

(1961), those cases were reviewed because the convictions were

“so totally devoid of evidentiary support as to render them

unconstitutional under the Due Process Clause of the Four-

teenth Amendment.” Garner v. Louisiana, supra, at 174.

That situation is not present here. In upholding the judge’s

findings, the Supreme Judicial Court majority stated,

Here there was extensive testimony . . . tending to demon-

strate the change of mood and relationship found by

the trial judge below. It was more than sufficient to

sustain the governinent’s burden of proof. (A. 28.)

The absence of a legal controversy of importance in the

instant case further dictates a denial of ceruors7i where, as

here, only the facts are in dispute. Clearly the constitutional

standards applicable to determining voluntariness have been

enumerated in numerous United States Supreme Court de-

cisions. See Appendix pp. 20-22.

The facts here do not suggest a need for further elaboration

upon the previously stated requirements for ascertaining volun-

tariness. The unusual and uncommon circumstances in the

present case also indicate that few, if any citizens, apart from

petitioner, will be affected by the Court’s resolution of the

questions presented. Certiorari, by its nature, has been

granted to controversies of timely and general importance to

the public, as distinguished from the immediate needs of

individual applicants. Petitioner, in seeking this Court's deter-

mination of an atypical factual dispute, has not brought such

a controversy before it.

10

Il. THe State Courts RicgHtLy CONCLUDE THAT THE PETI-

TIONER S Post 4:15 P.M. ADMISSIONS WERE THE RESULT OF HIS

“CHANGED ATTITUDE,” CONSTITUTING A SIGNIFICANT “ BREAK

IN THE STREAM OF EVENTS,” AND PROPERLY HELD THEM TO BE

ADMISSIBLE.

The Commonwealth of Massachusetts in no manner con-

dones the activity of the “concerned group.” Nevertheless, the

admissibility of petitioner's statements, as a constitutional

matter, are governed by the due process standard of volun-

tariness, Procunier v. Atchley, 400 U.S. 446, 453, 91 S. Ct.

485, 489, 27 L. Ed. 2d 524 (1971), and must be resolved in

light of the totality of the underlying circumstances. Clewis

v. Texas, 386 U.S. 707, 708, 87 S. Ct. 1338, 1339, 18 L. Ed.

2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 741, 86

S. Ct. 1761, 1764, 16 L. Ed. 2d 895 (1966). In doing so, the

state courts had to decide whether petitioner, at the time of

the admissions, was in possession of the requisite “mental

freedom” to admit or deny his suspected participation in a

crime. Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S. Ct.

921, 926, 88 L. Ed. 1192 (1944); Lyons v. Oklahoma, 322

U.S. 596, 602, 64 S. Ct. 1208, 1212, 88 L. Ed. 432 (1944).

Since several statements were made at different periods in

time, each was fully examined in the state court for volun-

tariness under the same “totality of circumstances” test.

United States v. Bayer, 331 U.S. 532, 539, 67 S. Ct. 1394,

1397, 91 L. Ed. 1654 (1947). While prior coercion may be

relevant to subsequent admissions, it is not conclusive. This

Court has never held that “making a confession under cir-

cumstances which preclude its use, perpetually disables the

confessor from making a usable one after those conditions have

been removed.” Bayer, supra, at 541. Supplemental state-

ments become admissible where, as here, petitioner was under

no compulsion when the unsolicited, post 4:15 p.m. statements

1]

were made. With the removal of all elements of coercion, a

“break in the stream of events” was found in this case to have

occurred, “sufficient to insulate the [subsequent] statement

from the effect of all that went before.” Clewis v. Texas, 386

U.S. 707, 710, 87 S. Ct. 1338, 1340, 18 L. Ed. 2d 423 (1967).

Petitioner's readily discernible change in attitude and rela-

tionship constitutes such a “break in the stream of events.”

In the instant case, all intimidation ceased after the original

admissions had been made (A. 21, 83). Concomitantly, there

was an attitude of relief on Mahnke’s part for having at last

shared his terrible secret (A. 9, 83, 87). An atmosphere of

mutual trust and cooperation, particularly between Mahnke

and Ferreri, developed (A. 9, 81, 83, 87). Any residue of

coercion had completely dissipated (A. 21) once the group had

left the cabin. Mahnke was immediately thereafter presented

with numerous opportunities to leave the company of his

abductors (A. 21, 85, 91, 94), which opportunities he com-

pletely disregarded although “he knew he could have effected

an escape” (A. 21, 87). Liimatainen’s warning about “funny

business” was “an invitation to outcry” for Mahnke (A. 21-22).

Instead, he spontaneously stated to Ferreri, “See, I could have

gotten away if I wanted to, but I didn’t” (A. 87).

Nor did the mere continuance in the presence of the group

coerce Mahnke. Quite the contrary, upon departure from the

cabin, Mahnke evidenced complete control of his situation. On

the return trip, Mahnke “conversed in a friendly manner with

Ferreri” while Campbell and Fontacchio “dozed” (A. 22). He

voluntarily contributed a small sum to the toll at the turnpike

exit (A. 88) and freely gave Ferreri directions to the Sears

parking lot (A. 88), indicating, entirely without solicitation,

the location where he had struck Ms. Bornstein (A. 88).

Later, Mahnke, without intimidation (A. 10, 89-90), orally

directed Ferreri to her body. While Ferreri searched, Mahnke

“engaged in incriminating conversations with Heard” (A. 10-

12

11, 22, 92-93), and expressed a complete lack of apprehension

regarding culpability (A. 10-11, 22, 93). Mahnke later re-

quested that Ferreri do him a favor by not turning the body in

until after Christmas (A. 94, 113). In his absence, the group

debated Mahnke’s request for approximately two hours before

taking any action, thereby demonstrating further evidence of a

change in the relationship between the principals (A. 94, 113-

114).

These and subsidiary factors, detailed in the record, led the

trial court and the Supreme Judicial Court to conclude that

Mahnke “acted like a man who felt sufficiently in control of

his circumstances tc make a free choice” (A. 22). The com-

bination of these components supports the conclusion of

Mahnke’s changed attitude (A. 83, 87), constituting a sub-

stantial “break in the chain of events” sufficient to separate

the post 4:15 p.m. statements from the coercive circumstances

surrounding the initial admissions. Petitioner’s behavior after

4:15 p.m. presents objective evidence that the circumstances

behind Mahnke’s earlier and admittedly involuntary state-

ments did not control the character of his subsequent admis-

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

L. Ed. 2d 423 (1967).

Three cases cited by petitioner, Clewis v. Texas, 386 U.S.

707, 711-712, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967) (“in-

terrogation . . . designed to elicit . . . the police view of the

truth”); Leyra v. Denno, 347 U.S. 556, 561, 74 S. Ct. 716, 94

L. Ed. 948 (1954) (“trance-like submission [imposed by] . . . a

highly skilled psychiatrist”); and Beecher v. Alabama, 389

U.S. 35, 38, 88 S. Ct. 189, 19 L. Ed. 2d 35 (1967) (“wounded

. . . under the influence of drugs, and at the complete mercy

of the prison hospital authorities”), concerned confessions

extracted as part of a continuous coercive process entirely

dissimilar to the circumstances demonstrating the changed

relationship here. The voluntariness of statements, this Court

13

has said, must be determined by the facts of each particular

situation, not through a “mere color matching” of analogous

cases. Reck v. Pate, 367 U.S. 433, 442, 81 S. Ct. 1541, 1547,

6 L. Ed. 2d 948 (1961). The facts surrounding Mahnke’s post

4:15 p.m. admissions illustrate that the majority were entirely

unsolicited and spontaneously made following an identifiable

break in the stream of events.

Petitioner also cites United States v. Bayer, 331 U.S. 532, 67

S. Ct. 1394, 91 L. Ed. 1654 (1947), which upheld the admis-

sibility of subsequent incriminating statements that disclosed

additional information, where an identifiable “break in the

stream of events” was established between an earlier coerced

confession. Although the time sequence between the first and

second confessions in Bayer, supra, is more extended, the addi-

tional information volunteered in Mahnke’s post 4:15 p.m.

admissions inade them more remote from his prior statements

than those in the Bayer case. Mahnke’s unsolicited disclosure

of these additional facts (A. 10, 88, 93), together with his

remarks to Heard that his prior statements could not be used

against him (A. 10-11, 22, 93), further warranted the finding

of no causal relationship between the first statements and

Mahnke’s subsequent admissions. Evans v. United States, 375

F. 2d 355 (8th Cir. 1967); Gilpin v. United States, 415 F. 2d

638 (5th Cir. 1969).

Petitioner's conduct and remarks to Ferreri following the

group's confrontation with Chief Tyler and Liimatainen signi-

fied a substantial break in the former context of coercion.

Mahnke thereafter acted independent of coercion. While

knowingly under the control of the hunters (A. 21, 85),

Mahnke, with complete mental freedom, decided to accompany

the group (A. 87). This decision was made not upon intimida-

tion or duress, but as the result of the change in relationship.

The record is replete with further indicia of this changed atti-

tude. (See A. 21-22, 87-95, 112-114.) These factors readily

distinguish Mahnke’s subsequent admissions from the circum-

14

stances surrounding his earlier statements, and justify the find-

ing of a “break in the stream of events” sufficient to guarantee

the voluntariness of the later statements. Clewis v. Texas, 386

U.S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967).

Ill. THe Strate Courts Property Founp THAT THE PeEtTI-

TIONER S STATEMENTS AND ACTIONS SUBSEQUENT TO 4:15 P.M.

Were ADMISSIBLE AND WERE Not EXCLUDABLE EITHER UNDER

THE “ CaT-OUT-OF-THE-BAG” THEORY OR AS “ FRUITS OF THE

Poisonous TREE.”

Whether petitioner’s post 4:15 p.m. statements and actions

were excludable as improper “fruits” or under the “cat-out-of-

the-bag” doctrine had to be determined by inquiry into the

facts. Essentially, the state courts had to determine, in light

of all the underlying circumstances, whether Mahnke’s subse-

quent admissions were the consequence of the psychological ef-

fects of prior coercion. Cf. Nardone v. United States, 308

U.S. 338, 341, 60 S. Ct. 266, 267, 84 L. Ed. 307 (1939) (sub-

sequent admissions had “become so attenuated as to dissipate

the taint” of prior coercion), and Darwin v. Connecticut, 391

U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968) (dissenting

opinion) (further statements attributed to a sense of “little to

lose”).

In the instant case, no cat-out-of-the-bag effects are

factually presented (A. 24, 128). The trial court, after exten-

sive hearings determined that Mahnke’s subsequent statements

and actions were admissible, and, in the language of the Su-

preme Judicial Court majority, “attributable to the peculiar

friendship which . . . [he] formed with Ferreri or to relief at

finally having divulged his secret at last” (A. 28). The record

also illustrates that these later statements were totally unfet-

tered (A. 88, 93, 95, 128). Both courts’ conclusion that

Mahnke did not believe he had little to lose by repetition or

15

elaboration upon earlier admissions (A. 24, 128), is also clearly

supported by the evidence. While speaking to Heard, Mahnke

“evidenced no fear of culpability” (A. 24, 128) for the death of

Rhonda Bornstein, (correctly) stating that the information re-

lated in the cabin could not be used against him. Mahnke’s

previous exculpatory statements further indicate that he logi-

cally believed he could not be convicted for the victim's death.

Moreover, these statements were made with no physical re-

straint whatsoever placed upon petitioner's freedom of move-

ment (A. 128). While near the Sears parking area, Mahnke

was free to have effectuated an escape (A. 91). Instead, he

voluntarily related information he had not previously dis-

closed concerning the site of the occurrence of the incident

(A. 88), and the location of the victim’s body (A. 89, 90).

Such behavicr displayed a state of mind completely distinct

from that preceding his initial admissions. The spontaneous

nature of these statements indicates that they were not prod-

ucts of any continuing coercion.

As the Supreme Judicial Court succinctly stated (A. 25),

Fear, continuation of coercion effects, and a sense of

the futility of attempting to get the cat back in the bag

are the objects of the analysis.

The evidence clearly substantiated both courts’ conclusion

that none of the above factors were imputable to Mahnke’s

subsequent admissions.

Nor can these statements in any manner be qualified as

“fruits of the poisonous tree” (A. 25-26, 114-115). As the trial

court stated, “the discovery of the body . . . was not a ‘fruit’

of the original involuntary statement because this evidence did

not flow from this statement” (emphasis in oiiginal) (A. 115).

Mahnke had initially stated that the body was “in Boston near

Sears and Roebuck” (A. 115). The gravesite was not described

with any greater particularity at that time. Arguendo. dis-

16

covery of the victim’s body upon this information alone would

have constituted “fruit” of the prior coercion. However,

Mahnke’s actual disclosure of the location of the victim’s body

was, by all reasonable inferences, the product of his free will,

attributable to a readily identifiable and unmistakable change

in attitude and relationship. Mahnke, at this point, was free

to act as he chose (A. 128). He could readily have fled (A.

21, 91, 113) if he so desired. Notwithstanding, he willingly

gave Ferreri detailed verbal directions to the gravesite (A. 22,

89). He later voiced his aversion to accompanying Ferreri

down to the place where Rhonda Bornstein was buried (A.

89-90, 127), stating that the burial site was “spooked” (A. 89,

128). However, Mahnke consented to accompany Ferreri

“when it became apparent that his knowledge of the exact

burial spot was necessary” (A. 128). Thereafter, he pointed

out the location of the grave to Ferreri, stating, “This is it. I

am not going any further” (A. 90). Mahnke then walked back

alone to the parking area and rejoined Heard and Fisher

(A. 90-91). Mahnke’s selectivity of what he would and would

not do exemplified his freedom of action. Application of these

facts to petitioner's asserted “standard” for determination of

improper “fruits” (Petitioner's Brief 27) demonstrates that

Rhonda Bornstein’s body was discovered by “means sufficient-

ly distinguishable to be purged of the primary taint.” Wong

Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9

L. Ed. 2d 441, 455 (1963).

The same set of circumstances which categorically distin-

guish this evidence from any preceding taint also establish that

any “connection between the illegality and the evidence of-

fered is so attenuated as to dissipate the taint,” Nardone v.

United States, 308 U.S. 338, 341, 60 S. Ct. 266, 267, 84 L.

Ed. 307 (1939). Petitioner’s simple recitation of artificial

standards for ascertaining the degree of attenuation do not,

standing alone, establish contamination. Such a conclusion

17

entails factual considerations analogous to those for voluntari-

ness and are “not a matter of mathematical determination.

Essentially it invites psychological judgment. . . .” Haley v.

Ohio, 332 U.S. 596, 603, 68 S. Ct. 302, 305, 92 L. Ed. 496

(1948) (Frankfurter, J., concurring). Here reasonable infer-

ences drawn from previously established facts and demeanor

evidenced that Mahnke’s change in attitude was so complete

“that the taint of any illegality was entirely dissipated” (A.

115). While the time sequence was certainly not protracted,

Mahnke, nevertheless, “was afforded adequate time for delib-

erate reflection prior to making a subsequent incriminating

statement” (Petitioner's Brief 29). During the approximately

two-hour drive from Worthington to Boston, “the conversation

they [Mahnke and Ferreri] had, consistent with the change in

the situation, was friendly; it was not about Rhonda Born-

stein” (A. 127). This time period certainly provided sufficient

opportunity for petitioner to assess his situation without in-

timidating influence. Thus, Mahnke made a deliberate and a

considered decision to disclose the location of the victim's

body, secure in the knowledge that his prior statements could

not be introduced against him.

Moreover, each case cited in support of petitioner’s improper

“fruits” contention concerns illegal activity by government

officials. Cf. Fisher v. Scafati, 439 F. 2d 307 (Ist Cir. 1971).

There a subsequent confession was ruled inadmissible because

the defendant had not been informed that an earlier confes-

sion was invalid and could not be used against him. How-

ever, in spite of the fact that Mahnke correctly knew and af-

firmatively stated that his earlier statements were inadmissible,

such warnings are not apposite to any statements made by

Mahnke to the group. See United States v. Casteel, 476 F. 2d

152 (10th Cir. 1973); United States v. Antonelli, 434 F. 2d

335 (2d Cir. 1970).

18

This same constitutional principle undercuts petitioner's

entire contention regarding “fruits of the poisonous tree.”

That doctrine has been judicially ascribed only to the “fruits”

of illegal activity on the part of government officials, not pri-

vate citizens. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.

Ct. 574, 65 L. Ed. 1048 (1921). Whether such activity con-

cerns an improper search and seizure or involuntary statements

is irrelevant. The result prescribed was designed to prevent

sovereign authorities from benefiting from their illegal

activities. Petitioner would have the Court apply the doctrine

to involuntary statements made to private individuals, stating

that, “there exists no case ruling negatively upon this proposi-

tion” (Petitioner's Brief 26). There is no constitutional re-

quirement that the evidence obtained by an illegal private

search and seizure be suppressed. Burdeau v. McDowell, 256

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

v. Goldberg, 330 F. 2d 30 (3d Cir. 1964). It would be anom-

alous to hold inadmissible evidence allegedly obtained through

involuntary statements made to private citizens. Such an ex-

tension is neither applicable to the facts of this case nor con-

stitutionally mandated.

IV. STATEMENTS Mabe BY PETITIONER AT MASSACHUSETTS

GeNneERAL HospiTAL WERE Property HELD TO BE VOLUNTARY

AND ADMISSIBLE FOR PURPOSES OF IMPEACHMENT UNDER HARRIS

v. New York, 401 U.S. 222, 91S. Cr. 643,

28 L. Ep. 2p 1 (1971).

Application of the traditional standards for evaluating

voluntariness warrants the conclusion that statements made by

petitioner at the hospital were freely given. Cf. United States

v. Bayer, 331 U.S. 532, 67 S. Ct. 1394, 91 L. Ed. 1654

(1947); Clewis v. Texas, 386 U.S. 707, 87 S. Ct. 1338, 18 L.

19

Ed. 2d 423 (1967). The statements made at the hospital not

only were separated geographically from those made in Worth-

ington, but were made to entirely different individuals (police

officials), following Miranda warnings. See Davis v. North

Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895

(1966). Additional circumstances attest to the voluntary char-

acter of these statements.

Mahnke had left the “concerned group” several hours earl‘er

(Darwin v. Connecticut, 391 U.S. 346, 88 S. Ct. 1488, 20 L.

Ed. 2d 630 (1968)). He had spoken with his family, who had

taken him to the hospital (A. 104). See Reck v. Pate. 367

U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961). The ques-

tioning by police at the hospital was courteous (A. 37, 121)

and conducted in neither a grueling (A. 109) (Ashcraft v.

Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192

(1944)) or unreasonably lengthy manner (A. 106-107) (Ciewis

v. Texas, 386 U.S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423

(1967)). Nor was Mahnke’s will overborne (A. 36, 109). To

the contrary, the record reveals that Mahnke exhibited com-

plete control over the interview (A. 109):

This finding is quite obvious from the cagey and calcu-

lated manner in which Mahnke weighed the consequences

of each question and answer . . . (A. 109).

Mahnke decided which questions he would answer and

those he would not (A. 106). “. . . Mahnke remained silent in

response to a number of questions, while answering other

questions” (A. 106). At one point, he insisted that the ste-

nographer leave (A. 106-107).

Throughout the interview with police officials Mahnke was

physically and mentally alert (A. 107). There was no

evidence to suggest that he had been medicated upon admis-

20

sion to the hospital (A. 107) (Leyra v. Denno, 347 U.S. 556,

74S. Ct. 716, 94 L. Ed. 948 (1954)).

. . . [T]he hospital report indicates that he was normal

in all respects (A. 107).

Mahnke was found to be “an intelligent and educated

young man” (A. 121), Lisenba v. California, 314 U.S. 219, 62

S. Ct. 280, 86 L. Ed. 166 (1941), and had “requested to read

the Miranda warning card” (A. 108). Having been informed

of his rights (A. 106), Mahnke made certain admissions to

police officials concerning the death of Rhonda Bornstein (A.

107). It is apparent that statements made by Mahnke at the

hospital were sufficiently distinguishable from those made in

Worthington to ensure their trustworthiness.

The trial court ruled, however, that the statements by

Mahnke at the hospital, although voluntary, were not admis-

sible in the Commonwealth’s case in chief because two detec-

tives, who accompanied other police officers who questioned

Mahnke, but who did not participate in the questioning, knew

of attempts by Mahnke’s attorney to be present while his client

was being questioned (A. 119).

Petitioner asserts that the rule announced in Harris is re-

stricted to mere technical violations of the Miranda warnings

and not intended to include intentional police misconduct.

Such contention is misdirected.

In Harris v. New York, 401 U.S. 222, 224, 91 S. Ct. 643,

645, 28 L. Ed. 2d 1 (1971), the Court rejected the argument

that “evidence inadmissible against an accused in the prosecu-

tion’s case in chief is barred for all purposes. . . .” The

Court's opinion there reflected an obvious balancing test. The

possibility of the defendant's potentially perjurious testimony

was found to outweigh the need for deterrence of improper

21

police conduct that might be effectuated by total exclusion of

such evidence.

Every criminal defendant is privileged to testify in his

own defense, or to refuse to do so. But that privilege

cannot be construed to include the right to commit per-

jury. . . . [T]he shield provided by Miranda cannot be

perverted into a license to use perjury by way of a de-

fense, free from the risk of confrontation with prior incon-

sistent utterances. Id., at 225-226.

The significance placed upon the impeachment of perjured

testimony is further demonstrated in Oregon v. Hass,

U.S. ; (1975)* where the Court restated its

concern that exclusionary rules could potentially “free [the

defendant] from the embarrassment of impeachment evidence

from . . . [his] own mouth.” In Hass, supra, the defendant

was arrested for bicycle theft and given the Miranda warn-

ings. Hass and a police officer later went to locate one of the

stolen bicycles. On the way, Hass stated that he wanted to

telephone his attorney, but was told he could use the phone

once they returned to police headquarters. Shortly thereafter,

Hass directed the police officer to one of the stolen bicycles.

Upon the authority of Harris v. New York, supra, the Court

found that the deliberate misconduct by the police officer,

which failed to afford Hass his full constitutional right to

counsel, did not preclude the introduction of these statements

to impugn the truth of Hass’ testimony. This situation is

closely analogous to that factually presented in the instant

case.

Moreover, Harris places no additional burden upon peti-

tioner’s right to testify on his own behalf. Petitioner is obli-

gated to testify truthfully whether or not he is subject to im-

@(March 19, 1975) 43 U.S.L.W. 4417, 4420.

22

peachment under the rule of Harris. Here petitioner has been

protected from improper police conduct by the exclusion,

other than for purposes of preventing perjury, of the evidence

at the hospital. The exception to this exclusionary rule is no

more an encouragement to such misconduct than are those

exceptions announced in Hass and Harris.

Conclusion.

For the foregoing reasons, the Commonwealth of Massa-

chusetts respectively submits that the writ of certiorari should

be denied.

Respectfully submitted,

For the Commonwealth,

NEWMAN A. FLANAGAN ‘

Special Assistant Attorney General,

New Court House,

Boston, Massachusetts 02108.

(617) 723-9700

On the Brief:

TIMOTHY MICHAEL BURKE,

Northeastern University Law Student.