Opposition — Cugliata v. Maine

AUG 24 }977

IN THE

SUPREME COURT OF THE MICHAEL RODAK, JR., CLERK

UNITED STATES

October Term, 1977

No. 77-66

FRANK A. CUGLIATA and

JOHN MORAITES,

Petitioners

Vv.

STATE OF MAINE

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR THE

STATE OF MAINE

Brief For Respondent in Opposition

CHARLES K. LEADBETTER

ASSISTANT ATTORNEY GENERAL

STATE HOUSE

AUGUSTA, MAINE 04333

ATTORNEY FOR RESPONDENT

WILLIAM R. STOKES

ASSISTANT ATTORNEY GENERAL

OF COUNS EL

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1977

No. 77-66

FRANK A. CUGLIATA and

JOHN MORAITES,

Petitioners

Vv.

STATE OF MAINE

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR THE

STATE OF MAINE

Brief For Respondent in Opposition

CHARLES K. LEADBETTER

ASSISTANT ATTORNEY GENERAL

STATE HOUSE

AUGUSTA, MAINE 04333

ATTORNEY FOR RESPONDENT

WILLIAM R. STOKES

ASSISTANT ATTORNEY GENERAL

OF COUNSEL

INDEX

Page(s)

TABLE OF AUTHORITIES .....ccccccccece ii - iii

OPINION BELOW.......... $0606600066 0 a |

PORaGE ess bccecccces eeecoeses ee 2

QUESTION PRESENTED.......cccccccccee 2

CONSTITUTIONAL PROVISION INVOLVED.. 2

STATEMENT OF THE CASE............ ee ; 3

Db ebhsdbetenesbbeeecacs tues e 8

THE WRIT OF CERTIORARI SHOULD

NOT BE GRANTED, BECAUSE THE

DECISION OF THE SUPREME JUDICIAL

COURT OF MAINE IS IN ACCORD

WITH PAST DECISIONS OF THE

UNITED STATES SUPREME COURT.

CONC LUS ION ee eeeeee#e#ee#e#ee#es#« eoeneeeseeee#ee#es 18

CERTIFICATE OF SERVICE........... oe 19

TABLE OF AUTHORITIES

Case

Barber v. Page, 390 U.S. 719

(1968) .cccccces TerTererere oe

Brookhart v. Janis, 384 U.S. l

PE 6trne deb abe eee en eek

California v. Green, 399 U.S.

" Mb 2, > Pere chaeves

Dutton v. Evans, 400 U.S. 74

2, See 6édanees6e beadawes

Freeman v. Zahradnick, U.S.

» 37 8.Ce. 21850, 1154-

55 (1977) (Marshall, J.,

dissenting)....... eccccccceos

Mancusi v. Stubbs, 408 U.S. 204

8 gy | Rep bids ewes ——

Mutual Life Ins. Company v.

Hillmon, 145 U.S. 285

Oe dei d tee ae hen bee okt

Pointer v. Texas, 380 U.S. 400

tsi sere dkacnusaenaned ce on

United States v. Annunziato,

293 F.2d 373 (2d Cir.

1961) oeee eevee oeeeeeve eee eeeee

United States v. Pheaster, 544

F.2d 353 (9th Cir. 1976),

cert. denied U.S.,

oe Pp? |! Be og) eee

o tt «

Page(s)

ll, 14, 15

15

9-10, ll

to. dhe S86 Ade

14, 15, 16

13

15, 16

2, 8, 9

10, ll, 15

9

9

Case

Commonwealth v. Trefethen, 157

Mass. 180, 31 N.E. 961

(> Bee rrr rrrT conneoas

Hunter v. State, 40 N.J.L. 495

Oe ae ae a a

Kennard v. Burton, 25 Me. 39

DT seu 664646 4%06% eeececes

People v. Alcade, 24 Cal. 2d

177, 148 P.2d 627 (1944)....

State v. Cugliata, 372 A.2d 1019

4 re —taeeen

MAINE STATUTES

SB? BMRoBAR. FASSLo. cccccccccccsese

TREATISES

6 Wigmore on Evidence §1725

(Chadburn Rev. 1976)..... ees

5 Wigmore on Evidence §1397

(Chadburn Rev. 1974)........

MISCELLANEOUS

Pas GE, SPEEA) CO) cccccvecvecs ee

Adviser's Note to Rule 803(3)

Tsetse eeececetecsseecs

Rule 803(3), Fed. R. Evid. .....

- iii -

Page(s)

13

5, 6, ll, 12,

Rite 14, a5. 16,

17

ll

14

9

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1977

No. 77-66

FRANK A. CUGLIATA and

JOHN MORAITES,

Petitioners

Vv.

STATE OF MAINE

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR THE

STATE OF MAINE

Brief For Respondent in Opposition

OPINION BELOW

The opinion of the Supreme Judicial Court

of Maine, affirming the convictions of the

Petitioners of the crime of felonious homi-

cide punishable as murder (17 M.R.S.A. §2651)

is reported at 372 A.2d 1019 (Me. 1977), and

is reprinted in Appendix A of Petition.

JURISDICTION

The jurisdictional requisites are

adequately set forth in the Petition.

QUESTION PRESENTED

Whether a criminal defendant's Sixth

Amendment right to confront the witnesses

against him is violated in a state court

prosecution for murder where hearsay evid-

ence is admitted at trial, pursuant to the

“present mental state" exception to the

hearsay rule as recognized in Mutual Life

Insurance Co. v. Hillmon, 145 U.S. 285

(1892).

CONSTITUTIONAL PROVISION INVOLVED

Sixth Amendment: “In all criminal

prosecutions, the accused shall enjoy

the right .. . to be confronted with

the witnesses against him...."”

STATEMENT OF THE CASE

On August 15, 1974, at approximately

6:00 a.m., the dead body of Mr. Vincent

Serra was discovered in the vicinity of

Route 1 in Nobleboro, Maine. Death was

caused by multiple wounds inflicted by

shotgun pellets and nine-millimeter

bullets fired from two different guns.

The evidence established that death

occurred sometime between 11:00 p.m. on

August 14, 1974 and 3:00 a.m. on August

15, 1974.

On December 20, 1974, a Lincoln County,

Maine grand jury returned indictments

against the Petitioners charging them with

felonious homicide punishable as murder

(17 M.R.S.A. §2651). Both Petitioners

pleaded not guilty, both were tried before

a jury and both were ultimately convicted

of the murder of Vincent Serra.

During trial, and over Petitioners'

objections, the State was permitted to

introduce the testimony of Mr. Albert

Wilson concerning a conversation he had

with the deceased on August 12, 1974,

a few days before the latter died.

“According to Wilson,

Serra was planning to buy 10

pounds of hashish at midnight,

August 14, at a place which

was near a ship and was approx-

imately a drive of an hour and

a half, by automobile, from

Medford [Massachusetts]. Serra

added that two other people, one

of whom was named 'Frank' and

both of whom would be armed,

were to accompany Serra. Each

of the three was to contribute

$2,000 toward the $6,000 purchase

price of hashish. Serra told

Wilson about this plan because

Serra was unable to raise his

$2,000 share and wanted Wilson

to become a participant by pro-

viding some of that amount of

money. When Wilson agreed to

become a participant, he and

Serra went to the Medford Savings

Bank where Wilson withdrew $1,200

and gave it to Serra (Serra...

. later withdrawing $800 of his

Savings to make up the $2,000).”

State v. Cugliata, 372 A.2d 1019, 1026

(Me. 1977).

Wilson's testimony concerning his

conversation with Serra, including the

reference to a man named "Frank," was

allowed into evidence by the presiding

Justice. However, the Justice instructed

the jury that it could only consider

Wilson's testimony for the purpose of

showing

* « « an intention in the mind of

the decedent to make a trip, and

also as bearing upon whether or

not in fact he did make such a

trip.”

Only that portion of the note above

underscored was seen by the jury, and the

presiding Justice again instructed the

jury that it

"was to consider te note only

as evidence of Serra's intent

to take a trip and of the like-

lihood that he in fact took the

trip he intended to take."

State v. Cugliata, 372 A.2d at 1026. This

limiting instruction was also included in

the presiding Justice's final charge to

the jury.

The basis of Petitioners' objections

to the admissibility of this evidence was

Id. that it was inadmissible hearsay under State

Also admitted into evidence, over law and that, in any event, it violated their

Petitioners' objections, was a note confrontation rights as embodied in the 6th -

written by the decedent and found in 14th Amendments to the United States

his automobile, which read: Constitution.

"Split with John Meraides for On appeal, the Supreme Judicial Court

Miraides] and Frank Cogliata

at 9:00 p.m. 14th of August.

In case of no return check them

for responsibility carrying

$2000.00."

[emphasis supplied]

of Maine rejected the Petitioners' conten-

tions, on the ground that (1) the evidence

was properly admitted pursuant to the

oé@«

“present mental state” exception to the

hearsay rule, and (2) that on the author-

ity of Dutton v. Evans, 400 U.S. 74 (1970),

the admission of the evidence did not result

in a violation of Petitioners' constitutional

rights.

ARGUMENT

THE WRIT OF CERTIORARI SHOULD

NOT BE GRANTED BECAUSE THE

DECISION OF THE SUPREME JUDICIAL

COURT OF MAINE IS IN ACCORD WITH

PAST DECISIONS OF THE UNITED

STATES SUPREME COURT.

In Mutual Life Insurance Co. v.

Hillmon, 145 U.S. 285 (1892), this Court

held that 2 person's out-of-court state-

ments concerning his present intention

to do a future act were not barred by the

hearsay exclusionary rule and were, there-

fore, admissible. The evidence involved

in Hillmon were letters sent by a man to

his family informing it of his intention

to take a trip with a certain individual.

The Court held that the letters were ad-

missible in a trial occurring after the

man's death,

", . « as evidence that shortly

before the ti ‘.e when other evidence

tended to sh w that he went away,

he had the intention of going,

and of going with Hillmon, which

made it more probable both

that he did go and that he

went with Hillmon, than if

there had been no proof of

such intention."

145 U.S. at 296.

Although Hillmon was a civil case, the

doctrine it announced has been applied

to criminal cases as well. See, e.q.,

United States v. Pheaster, 544 F.2d 353, 375

(9th Cir. 1976), cert. denied, U.S.

, 97 S.Ct. 1243 (1977): United States

v. Annunziato, 293 F.2d 373, 377 (2d Cir.

1961); People v. Alcade, 24 Cal. 2d 177, 148

P.2d 627 (1944); Commonwealth v. Trefethen,

157 Mass. 180, 31 N.E. 961 (1892); Hunter v.

State, 40 N.J.L. 495 (1878). See generally

6 Wigmore on Evidence §1725 (Chadburn Rev.

1976). The "present mental state" exception

has been codified in Rule 803(3), Fed. R.

Evid.

However, the issue confronting this

Court is not whether the "present mental

state" exception to the hearsay rule is a

sound rule of evidence. See California

v. Green, 399 U.S. 149, 155 (1970). Rather

the issue posed by this petition for certi-

Orari is whether the evidence admitted at

Petitioners' State court trial, pursuant

to the "present mental state” hearsay

exception, denied them their Sixth Amend-

ment right to confront the witnesses against

them.

The Sixth Amendment to the United

States Constitution provides, in pertinent

part:

"In all criminal prosecutions,

the accused shall enjoy the right

« « « to be confronted with the

witnesses against him...."

This constitutional provision has been

made obligatory on the States by the Four-

teenth Amendment. See Pointer v. Texas,

380 U.S. 400, 403 (1965). While the ad-

mission of hearsay evidence against a

criminal defendant often raises issues

involving the Confrontation Clause, it

does not necessarily follow that that

—'

constitutional guarantee requires that all

admissible hearsay be excluded. See, e.g.,

Dutton v. Evans, 400 U.S. 74, 80 (1970);

Pointer v. Texas, 380 U.s. at 407 ; See

also State v. Cugliata, 372 A.2d at 1030. On

the other hand, this Court has also held

that Confrontation Clause violations may

occur despite the fact that evidence was

admitted under a recognized exception to

the hearsay rule. See, e.g., California

v. Green, 399 U.S. 149, 155-156 (1970);

Barber v. Page, 390 U.S. 719 (1968);

Pointer v. Texas, 380 U.S. 400 (1965)

As indicated by this Court in Dutton v.

Evans, 400 U.S. at 86,whether the admission

of hearsay evidence against a criminal

defendant offends the Confrontation Clause

must be determined on the facts of each

individual case. See also 5 Wigmore on

Evidence §1397 (Chadburn Rev. 1974).

- ll =

In its opinion below, the Supreme

Judicial Court of Maine concluded

". . « that the admission in

evidence of the Serra conversa-

tion with Wilson and the edited

version of the Serra note did

not violate the confrontation

rights of defendants. ..."

State v. Cugliata, 372 A.2d at 1030.

In arriving at its decision, the Maine

Court relied upon this Court's decision

in Dutton v. Evans, supra.

Dutton involved the admission into

evidence of an out-of-court statement

made by the defendant's [Evans] co-

conspirator to the latter's cellmate at a

federal penitentiary. Over defense ob-

jections, this cellmate was permitted to

testify that Evans' co-conspirator stated:

"If it hadn't been for that dirty son-of-a

bitch Alex Evans, we wouldn't be in this

now." Dutton v. Evans, 400 U.S. at 77.

This Court held that the introduction of

this evidence was not violative of the

defendant's right of Confrontation.

oe 82 «

Many of the same factors which led the

Dutton Court to reject the defendant's Sixth

1

Amendment claim in that case, are also present

here. As pointed out by the Court below, the

“present mental state" exception tc the

hearsay rule has long been recognized in

Maine. Although the Maine Supreme Judicial

Court never had occasion, prior to this case,

to expressly adopt this specific exception, it

has been recognized in civil cases for over

130 years. See Kennard v. Burton, 25 Me. 39

(1845), cited in State v. Cugliata, 372 A.2da

at 1027. As the Court below correctly pointed

out, it has never been "intimated that the

applicability of the exception is confined

1. For a brief discussion of the factors

considered relevant in cases which present

Confrontation Clause issues arising from the

admission of hearsay evidence, see Mr. Justice

Marshall's dissent from the denial of certiorari

in Freeman v. Zahradnick, U.S. >» BF .8sCe.

1150, 1154-55 (1977) (Marshall, J., dissenting).

» £6 «

to civil trials." State v. Cugliata, 372

A.2d at 1027. See also Adviser's Note to

Rule 803(3) Me. R. Evid. The fact that a

rule of evidence has a long history of

acceptance in a particular jurisdiction is

a factor to be considered in determining

whether its use in a criminal case contravenes

Sixth Amendment principles. See Dutton v.

Evans, 400 U.S. at 87-88.

Moreover, the circumstances surrounding

the deceased's statements in this case (his

conversation with Wilson and his note)

strongly indicate that they were made vol-

untarily and were not coerced. State v.

Cugliata, 372 A.2d at 1031 citing Dutton v.

Evans, 400 U.S. at 87.

Nor did the admission of evidence in

this case result in a wholesale denial of

the Petitioners' rights of cross-examination.

State v. Cugliata, 372 A.2d at 1031 citing

Barber v. Page, 390 U.S. 719 (1968). See

o A

also Brookhart v. Janis, 384 U.S. 1 (1965).

Neither was there any evidence of prosecu-

torial bad faith or misconduct. See Dutton

Nv. Evans, 400 U.S. at 87 citing Pointer v.

Texas, 380 U.S. 400 (1965). Furthermore,

this case is easily distinguishable from

Barber v. Page, 390 U.S. 719 (1968), in

which this Court found a Confrontation

Clause violation as a-result of the ad-

mission into evidence of a witness's

testimony given at a prior proceeding.

Central to the Court's decision in Barber

was the fact that the government made no

attempt to secure the presence of the

witness at trial. Here, of course, it was

impossible for Serra to testify at trial.

Cf. Mancusi v. Stubbs, 408 U.S. 204 (1972).

Additionally, it should be noted that, at

least with respect to Wilson's testimony,

the Petitioners' did have the opportunity

to confront and cross-examine him. See

Dutton v. Evans, 400 U.S. at 89.

» 38 «

Finally, and perhaps most importantly,

there was “abundant corroboration" that

the deceased's declarations were both

accurate and reliable. State v. Cugliata,

372 A.2d at 1028. Serra's statements to

Wilson and the note which he left were

completely consistent with each other.

Furthermore, the evidence supports the view

that what the deceased planned to do he,

in fact, did. It is highly unlikely that

the deceased would fabricate a story to

Wilson, who was not only Serra's lifelong

friend, but who was also a participant in

the scheme to purchase the drugs. See

Mancusi v. Stubbs, 408 U.S. at 413; Dutton

v. Evans, 400 U.S. at 87.

It is apparent that the Petitioners’

Sixth Amendment Confrontation rights were

not violated by the Maine Court in their

trial for murder. The unanimous opinion

~ Be

of the Maine Supreme Judicial Court adequately CONCLUSION

addressed the Petitioners' constitutional , For the foregoing reasons, it is

claims, and properly rejected them. The respectfully requested that the petition

Court's opinion in State v. Cugliata, 372 for a writ of certiorari be denied.

A.2d 1019 (Me. 1977), is in accord with past

decisions of this Court, and it is res- Respectfully Submitted,

pectfully requested that this petition

for a writ of certiorari be denied. Na

bud. NA

Sup. Ct. R. 19(1) (a).

CHARLES K. LEADBETTER

ASSISTANT ATTORNEY GENERAL

, STATE HOUSE

AUGUSTA, MAINE 04333

ATTORNEY FOR RESPONDENT

oa 19 @

o 19 «

CERTIFICATE OF SERVICE

Pursuant to Rule 33 of the Rules of

the Supreme Court of the United States,

the undersigned, counsel of record for

the Respondent, on the date written below,

did deposit six copies of the above "Brief

for Respondent in Opposition" in the United

States Mail in Augusta, Maine, first class

postage prepaid, 3 copies addressed to

Moraites's Attorneys of Record, to wit -

Henry D. Katz, Esquire

Manuel Katz, Esquire

53 State Street

Boston, Massachusetts 02109

and 3 copies to Cugliata's Attorney of Record,

to wit -

Gerald Alch, Esquire

One Center Plaza

Boston, Massachusetts 02108

Dated at Augusta, Maine, this 22nd

day of August, 1977. _

' ——e

CL x. be L«¢ +"

CHARLES K. LEADBETTER

ASSISTANT ATTORNEY GENERAL

STATE HOUSE

AUGUSTA, MAINE 04333

ATTORNEY FOR RESPONDENT

e 19 «