# Opposition — Cugliata v. Maine > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2202%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 856 ## Text 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 « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2202%3A2. Public record. Not legal advice.