Opposition — Canon v. Massachusetts

Supreme Court, U. S, :

FILED

FEB 24 1978

In the MICHAEL RODAK, JR., CLE

Supreme Court of the United States.

OctTosBEer TERM, 1977.

No. 77-1048.

ANTHONY J. CANON,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS.

Brief of the Respondent in Opposition.

Francis X. BELLoTTI,

Attorney General,

STEPHEN R. DELINsky,

Assistant Attorney General,

Chief, Criminal Bureau,

Barspara A. H. Smit,

Assistant Attorney General,

Chief, Criminal Appellate Section,

Of Counsel: One Ashburton Place, 18th Floor,

Lica HEIDEMAN, Boston, Massachusetts 02108.

Legal Intern. (617) 727-2240

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

Questions presented

Statement of the case

Prior proceedings

Statement of the facts

Argument

I. Admission of prior recorded testimony,

subject to cross-examination, of a witness who

is unavailable at a subsequent trial does not

constitute a constitutional violation

A. Opportunity to cross-examine

B. Substantial identity of issue

II. The construction of a state statute is a

matter of state judicial interpretation and

does not present a federal question capable of

review by the Court

Conclusion

Appendix

Table of Authorities Cited.

CASES.

Bell Tel. Co. v. Pennsylvania Pub. Utility Commrs.,

309 U.S. 30 (1940)

Bollenbach v. United States, 326 U.S. 607 (1946)

Bruton v. United States, 391 U.S. 123 (1968)

California v. Green, 399 U.S. 149 (1970)

> wowrny PrP

ll

7n

|

ii TABLE OF AUTHORITIES CITED.

Commonwealth v. Canon, Mass. Adv. Sh. (1977)

2134 2, 3, 4, 6, 7, 8

Cupp v. Naughten, 414 U.S. 141 (1973) 9

Davis v. Wechsler, 263 U.S. 22 (1923) 9

Dutton v. Evans, 400 U.S. 74 (1970) 5, 6

Grundler v. North Carolina, 283 F. 2d 798 (4th Cir.

1960) 7n

Henderson v. Kibbe, 431 U.S. 145 (1977) 9

Herb v. Pitcairn, 324 U.S. 117 (1945) 9

Mancusi v. Stubbs, 408 U.S. 204 (1972) 5

Mattox v. United States, 156 U.S. 237 (1895) 4,5

Mullaney v. Wilbur, 421 U.S. 684 (1975) 7

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) 9

Namet v. United States, 373 U.S. 179 (1963) 8

Pointer v. Texas, 380 U.S. 400 (1965) 5

Travelers Fire Insurance Co. v. Wright, 322 P. 2d

417 (Okla. 1958) 6

United States v. Wingate, 520 F. 2d 309 (2d Cir.

1975), cert. denied, 423 U.S. 1074 (1976) 4,5,6

Ward v. Board of County Commrs., 253 U.S. 17

(1920) 9

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Sixth Amendment, Con-

frontation Clause 2,4,5

Mass. Gen. Laws c. 233, § 22 5

TABLE OF AUTHORITIES CITED.

iii

Mass. Gen. Laws c. 268A 4,6

§ 2(b)(1), (3) 2

§ 3(b) 2

§ 17(a) 2, 4, 6,7

§ 19 2

MISCELLANEOUS.

R. Braucher, Conflict of Interest in Massachusetts,

in Perspectives of Law, Essays for Austin Wake-

man Scott (1964)

Federal Rules of Evidence, Rule 804(b)(1) (1977)

Advisory Committee’s Note, § 804.01

11 Moore's Federal Practice (2d ed.)

ao ow -~I

In the

Supreme Court of the United States.

OctosBer TERM, 1977.

No. 77-1048.

ANTHONY J. CANON,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS.

Brief of the Respondent in Opposition.

Respondent is not dissatisfied with petitioner's citation of

the opinion below or his statement of jurisdiction.

2

Questions Presented.

1. Whether the admission in evidence at petitioner's

criminal trial of a transcript of an unavailable severed co-

defendant’s testimony at a prior civil trial violated the

Confrontation Clause?

2. Whether the petitioner was denied his right to trial by

jury by reason of the trial judge’s instruction to the jury?

Statement of the Case.

Prion PROCEEDINGS.

On April 8, 1974, the defendant, Anthony Canon, was

charged by the grand jury for Middlesex County with viola-

tions of Mass. Gen. Laws c. 268A, §§ 17(a) and 19, the

conflict of interest statute. He was also charged with two

counts of bribery for violations of Mass. Gen. Laws c. 268A,

§§ 2(b)(1), (3) and 3(b). The defendant proceeded to trial

on April 15, 1975; he was found guilty of receiving or

requesting compensation for services performed or to be

performed in violation of Mass. Gen. Laws c. 268A, §

17(a), but was acquitted of the other charges. He was

thereafter sentenced to probation for a period of one year.

On appeal the conviction was affirmed by the Supreme

Judicial Court. Commonwealth v. Canon, Mass. Adv. Sh.

(1977) 2134.

STATEMENT OF THE FACcts.

The facts as they appear in the opinion of the Supreme

Judicial Court may be summarized as follows:

3

Anthony J. Canon was the City Engineer of Marl-

borough, Massachusetts. On January 9, 1968, Canon and

two other persons, Curley, a real estate broker, and Lynch,

an attorney, entered into an agreement to contribute $500

each towards an investment in an option for a parcel of

land within the city. The exercise of the option was

contingent upon the receipt of a special zoning permit

which would allow the building of apartments on the parcel

of land. Commonwealth v. Canon, Mass. Adv. Sh. (1977)

at 2135-2136.

Prior to the January 9, 1968, agreement, Canon had

given engineering advice to the two men concerning the

cost and feasibility of connecting the aforementioned parcel

of land to the Marlborough sewer system. Commonwealth

v. Canon, supra, at 2136. According to testimony from

Curley and Lynch, it was at this time that Canon indicated

that he intended to become part of the project and stated

that his lack of participation would result in its failure to be

connected to the sewer system. Jd. On January 9, 1968,

Canon met with Curley and Lynch, declared that “there’s

no way this is going any place without me aboard,” and left

his check for $500 on the table. It was agreed that the

defendant would also contribute general engineering advice

to the project. Id.

The special permit was obtained, and the land was

bought for $40,000 and resold to a developer for $100,000.

Commonwealth v. Canon, supra, at 2135. In the summer

of 1968, the defendant received $5,500 as a return on his

original investment of $500 and part of his share of the

profit. Id. When no further payments were forthcoming,

Canon sued Lynch and Curley for the remaining $15,000,

which was his share of the profits. Lynch and Curley

defended Canon’s breach of contract suit on the ground

that the agreement was void as against public policy, as it

4

violated Mass. Gen. Laws c. 268A. At the civil trial, the

judge directed a verdict for Lynch and Curley and referred

the case to the district attorney.

The three parties to the contract were charged with

violating Mass. Gen. Laws c. 268A. Canon was convicted

of violating Mass. Gen. Laws c. 268A, § 17(a), and

acquitted of all other charges. He was thereafter sentenced

to probation of one year. Commonwealth v. Canon,

supra, at 2134-2135.

At Canon’s trial, severed from the trials of Lynch and

Curley, the Commonwealth called Curley, the real estate

broker who had testified at the civil trial about the alleged

illegality of the contract, as a witness. Curley was

permitted by the trial judge to invoke his privilege against

self-incrimination and refused to testify. The trial judge

then allowed a motion by the Commonwealth to introduce

Curley’s recorded testimony given as an adverse witness to

Canon at the civil trial. Commonwealth v. Canon, supra,

at 2140.

Argument.

I. ADMISSION OF Prion RECORDED TESTIMONY, SUBJECT TO

Cross-EXAMINATION, OF A WITNESS WHO IS UNAVAILABLE

AT A SUBSEQUENT TRIAL DOES Not ConstTiITuTE A COonsTI-

TUTIONAL VIOLATION.

Testimony of a witness who is unavailable and has given

testimony at a prior judicial proceeding against the same

party and was subject to cross-examination by that party is

admissible and not violative of the Confrontation Clause.

Mattox v. United States, 156 U.S. 237 (1895); United States

5

v. Wingate, 520 F. 2d 309 (2d Cir. 1975), cert. denied, 423

U.S. 1074 (1976). The Federal Rules of Evidence permit

the use of former testimony when the declarant is unavail-

able as a witness. Federal Rules of Evidence, Rule 804(b)

(1) (1977). When prior testimony was subjected to a cross-

examination with an equivalent motive and similar issues,

the admission of that testimony at a subsequent trial was

held not to have violated the Confrontation Clause.

Mattox v. United States, supra; California v. Green, 399

U.S. 149 (1970); Mancusi v. Stubbs, 408 U.S. 204 (1972).

While the nature of the two proceedings is a factor to be

considered when deciding whether to admit former testi-

mony, a court must focus on a determination of whether

there was an opportunity to cross-examine and whether

there is a substantial identity of issues between the prior

testimony and the purpose for which it is to be introduced

at a later time proceeding. Mattox v. United States, supra;

California v. Green, supra, at 165-166; Mancusi v. Stubbs,

supra. See also: Bruton v. United States, 391 U.S. 123,

136 (1968); Dutton v. Evans, 400 U.S. 74 (1970); Pointer

v. Texas, 380 U.S. 400, 407 (1965).

A. Opportunity To Cross-Examine.

The defendant called Curley as a witness in his civil case,

and, under Massachusetts law, he was entitled to cross-

examine him as an adverse party. Mass. Gen. Laws c. 233,

§ 22. The defendant was represented by counsel and had

the opportunity to cross-examine the witness. The pro-

ceedings were conducted before a judicial tribunal and

recorded.

There is no evidence that testimony at a civil trial is less

reliable than that at a criminal trial. Respondent respect-

fully submits the previous testimony at the civil trial bore

sufficient “indicia of reliability” to allow the trial judge to

6

admit it into evidence at the defendant’s criminal trial.

Dutton v. Evans, supra, at 89.

B. Substantial Identity of Issue.

The requirement of substantial identity of issues is to

insure that the motive and interest in developing the wit-

ness’ testimony in the prior hearing is similar to that which

would exist in the subsequent trial. See United States v.

Wingate, supra, at 316; Federal Rules of Evidence, Ad-

visory Committee’s Note, § 804.01. Respondent respect-

fully submits that, in comparing the issues in the two pro-

ceedings, the court should focus upon the issues to which

the witness’ testimony was directed in each instance. United

States v. Wingate, supra; Travelers Fire Insurance Co. v.

Wright, 322 P. 2d 417 (Okla. 1958); 11 Moore’s Federal

Practice, § 804.04[3] (2d ed.).

The witness in the instant case appeared as a defendant

in the civil suit brought by Canon upon the identical subject

matter involved in the subsequent criminal trial. Canon, in

the civil suit, attempted to prove that the contract was valid

and not void as against public policy. In order to over-

come the other parties’ defense, Canon’s attorney had to

establish, by examinations of Lynch and Curley, that no

criminal activity had occurred which violated Mass. Gen.

Laws c. 268A. Thus, cross-examination of the adverse

witness would be prompted by the same motive and pur-

pose as in the subsequent criminal trial.

There is greater similarity between the civil and criminal

trials in the instant case than is usual with a criminal

matter. The conflict of interest statute, Mass. Gen. Laws

c. 268A, § 17(a), under which the defendant was convicted,

does not require a corrupt intent on the part of the violator,

as does the bribery statute. Commonwealth v. Canon,

7

supra, at 2145 (Liacos, J., dissenting); R. Braucher, Con-

flict of Interest in Massachusetts, in Perspectives of Law,

Essays for Austin Wakeman Scott, 8 (1964).

The lack of a requirement of criminal intent as an ele-

ment in the conflict of interest violation made the defend-

ant’s conviction more akin to a civil offense than the usual

criminal conviction. Therefore, where there is an oppor-

tunity for cross-examination of the witness by the party

against whom the testimony was introduced and there was

an accurate record of the testimony, and there was a sub-

stantial identity of issues, respondent respectfully submits

that the admission of the former testimony did not violate

the defendant’s right to be confronted with witnesses against

him.

II. THe Construction oF A STATE STATUTE Is A MATTER

OF STATE JUDICIAL INTERPRETATION AND DOES Not PRESENT

A FEDERAL QUESTION CAPABLE OF REVIEW BY THE Court.

It is fundamental that the state courts are the ultimate

expositors of state law. Mullaney v. Wilbur, 421 U.S. 684,

691 (1975).

The Supreme Judicial Court found that the trial judge

had correctly instructed the jury with regard to Mass. Gen.

Laws c. 268A, § 17(a) Commonwealth v. Canon, supra, at

2139.* There is no evidence that the trial judge’s instruc-

*On his appeal to the Supreme Judicial Court the petitioner did not

claim a denial of his right to jury trial. Therefore, the issue is not ripe

for review. The issue presented to the state court involved the sufficien-

cy of the evidence and does not present a federal question. Grundler

v. North Carolina, 283 F. 2d 798, 805 (4th Cir. 1960); Bell Tel. Co. v.

Pennsylvania Pub. Utility Commrs., 309 U.S. 30 (1940). —

8

tions were inconsistent with the Supreme Judicial Court’s

interpretation of the statute or with the jury’s verdict.

In addition, the defendant took no exception to the

judge’s instructions to the jury. Commonwealth v. Canon,

supra, at 2139. In a case involving the jury instructions

given by a federal judge, this Court characterized appellate

consideration of a trial court’s instruction which was not

obviously prejudicial and to which the defense did not

object during the trial as “extravagant protection.” Namet

v. United States, 373 U.S. 179, 190 (1963).

The Court has most recently stated:

“In this case, the respondent’s burden is especially

heavy because no erroneous instruction was given; his

claim of prejudice is based on the failure to give any

explanation — beyond the reading of the statutory

language itself — of the causation element. An omis-

sion, or an incomplete instruction, is less likely to be

prejudicial than a misstatement of the law. Since this

omission escaped notice on the record until Judge

Cardamone filed his dissenting opinion at the inter-

mediate appellate level, the probability that it sub-

stantially affected the jury deliberations seems remote.

“Because respondent did not submit a draft instruc-

tion on the causation issue to the trial judge, and

because the New York courts apparently had no

previous occasion to construe this aspect of the murder

statute, we cannot know with certainty precisely what

instruction should have been given as a matter of New

York law. We do know that the New York Court of

Appeals found no reversible error in this case; and its

discussion of the sufficiency of the evidence gives us

guidance about the kind of causation instruction that

9

would have been acceptable.” Henderson v. Kibbe,

431 U.S. 145, 155 (1977).

Respondent respectfully submits that a review by this

Court of the jury instructions in the instant case, which

construe a state statute, and involve no federal question,

and to which the defense made no objection, would be not

only extravagant, but improper. See Cupp v. Naughten,

414 U.S. 141, 146 (1973); Henderson v. Kibbe, 431 U.S.

145, 154 (1977).

It is a fundamental principle that this Court will not

review judgments of state courts about procedural or sub-

stantive matters unless federal constitutional rights are

involved. Ward v. Board of County Commrs., 253 U.S. 17

(1920); Davis v. Wechsler, 263 U.S. 22 (1923); Herb v.

Pitcairn, 324 U.S. 117, 125 (1945); NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449 (1958).

That petitioner has not raised a constitutional issue is

further demonstrated by his reliance on Bollenbach v.

United States, 326 U.S. 607 (1946). Bollenbach involves

merely the exercise of the federal court’s supervisory powers.

Since the petitioner cannot establish that the instructions

were erroneous, it is impossible for him to show that the

resulting conviction was a violation of due process, the

standard necessary for review by this Court. Henderson v.

Kibbe, supra, at 154.

10

Conclusion.

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

STEPHEN it. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau,

BARBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

One Ashburton Place, 18th Floor,

Boston, Massachusetts 02108.

(617) 727-2240

Of Counsel:

LILA HEIDEMAN,

Legal Intern.

ll

Appendix.

FEDERAL RULES OF EVIDENCE.

Rule 804. Hearsay Exceptions: Declarant Unavailable

(a) Definition of unavailability. — “Unavailability as a

witness” includes situations in which the declarant —

(1) is exempted by ruling of the court on the ground of

privilege from testifying concerning the subject matter of his

statement; or

(2) persists in refusing to testify concerning the subject

matter of his statement despite an order of the court to do

so; OF

(3) testifies to a lack of memory of the subject matter of

his statement; or

(4) is unable to be present or to testify at the hearing

because of death or then existing physical or mental illness

or infirmity; or

(5) is absent from the hearing and the proponent of his

statement has been unable to procure his attendance (or in

the case of a hearsay exception under subdivisiozi (b)(2), (3),

or (4), his attendance or testimony) by process or other

reasonable means.

A declarant is not unavailable as a witness if his exemption,

refusal, claim of lack of memory, inability, or absence is

due to the procurement or wrongdoing of the proponent of

his statement for the purpose of preventing the witness from

attending or testifying.

(b) Hearsay exceptions. — The following are not ex-

cluded by the hearsay rule if the declarant is unavailable as

a witness:

(1) Former testimony. — Testimony given as a witness at

another hearing of the same or a different proceeding, or in

a deposition taken in compliance with law in the course of

12

the same or another proceeding, if the party against whom

the testimony is now offered, or, in a civil action or pro-

ceeding, a predecessor in interest, had an opportunity and

similar motive to develop the testimony by direct, cross, or

redirect examination.

(2) Statement under belief of impending death. — In a

prosecution for homicide or in a civil action or proceeding,

a statement made by a declarant while believing that his

death was imminent, concerning the cause or circumstances

of what he believed to be his impending death.

(3) Statement against interest. — A statement which was

at the time of its making so far contrary to the declarant’s

pecuniary or proprietary interest, or so far tended to subject

him to civil or criminal liability, or to render invalid a

claim by him against another, that a reasonable man in his

position would not have made the statement unless he

believed it to be true. A statement tending to expose the

declarant to criminal liability and offered to exculpate the

accused is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. — (A) A

statement concerning the declarant’s own birth, adoption,

marriage, divorce, legitimacy, relationship by blood, adop-

tion, or marriage, ancestry, or other similar fact of personal

or family history, even though declarant had no means of

acquiring personal knowledge of the matter stated; or (B) a

statement concerning the foregoing matters, and death also,

of another person, if the declarant was related to the other

by blood, adoption, or marriage or, was so intimately as-

sociated with the other’s family as to be likely to have

accurate information concerning the matter declared.

(5) Other exceptions. — A statement not specifically

covered by any of the foregoing exceptions but having

equivalent circumstantial guarantees of trustworthiness, if

13

the court determines that (A) the statement is offered as

evidence of a material fact; (B) the statement is more

probative on the point for which it is offered than any other

evidence which the proponent can procure through reason-

able efforts; and (C) the general purposes of these rules and

the interests of justice will best be served by admission of

the statement into evidence. However, a statement may

not be admitted under this exception unless the proponent

of it makes known to the adverse party sufficiently in

advance of the trial or hearing to provide the adverse party

with a fair opportunity to prepare to meet it, his intention

to offer the statement and the particulars of it, including

the name and address of the declarant.

MASSACHUSETTS GENERAL Laws, CHAPTER 233.

§ 22. [Cross-Examination of Adverse Party.]

A party who calls the adverse party as a witness shail be

allowed to cross-examine him. In case the adverse party is

a corporation, an officer or agent thereof, so called as a

witness, shall be deemed such an adverse party for the

purposes of this section.

MASSACHUSETTS GENERAL LAws, CHAPTER 268A.

§ 17. [Municipal Employee Not to Receive or Be Offered

Outside Compensation in Relation to Certain Matters, or

Act as Attorney in Such Matters; Exceptions. |

(a) No municipal employee shall, otherwise than as

provided by law for the proper discharge of official -duties,

directly or indirectly receive or request compensation from

anyone other than the city or town or municipal agency in

14

relation to any particular matter in which the same city or

town is a party or has a direct and substantial interest.

(b) No person shall knowingly, otherwise than as pro-

vided by law for the proper discharge of official duties,

directly or indirectly give, promise or offer such compensa-

tion.

(c) No municipal employee shall, otherwise than in the

proper discharge of his official duties, act as agent or attor-

ney for anyone other than the city or town or municipal

agency in prosecuting any claim against the same city or

town, or as agent or attorney for anyone in connection with

any particular matter in which the same city or town is a

party or has a direct and substantial interest.

Whoever violates any provision of this section shall be

punished by a fine of not more than three thousand dollars

or by imprisonment for not more than two years, or both.

A special municipal employee shall be subject to para-

graphs (a) and (c) only in relation to a particular matter (a)

in which he has at any time participated as a municipal

employee, or (b) which is or within one year has been a

subject of his official responsibility, or (c) which is pending

in the municipal agency in which he is serving. Clause (c)

of the preceding sentence shall not apply in the case of a

special municipal employee who serves on no more than

sixty days during any period of three hundred and sixty-five

consecutive days.

This section shall not prevent a municipal employee from

taking uncompensated action, not inconsistent with the

faithful performance of his duties, to aid or assist any

person who is the subject of disciplinary or other personnel

administration proceedings with respect to those pro-

ceedings.

This section shall not prevent a municipal employee,

including a special employee, from acting, with or without

15

compensation, as agent or attorney for or otherwise aiding

or assisting members of his immediate family or any person

for whom he is serving as guardian, executor, administra-

tor, trustee or other personal fiduciary except in those

matters in which he has participated or which are the sub-

ject of his official responsibility; provided, that the official

responsible for appointment to his position approves.

This section shall not prevent a present or former special

municipal employee from aiding or assisting another person

for compensation in the performance of work under a

contract with or for the benefit of the city or town; pro-

vided, that the head of the special municipal employee's

department or agency has certified in writing that the

interest of the city or town requires such aid or assistance

and the certification has been filed with the clerk of the city

or town. The certification shall be open to public inspec-

tion.

This section shall not prevent a municipal employee from

giving testimony under oath or making statements required

to be made under penalty for perjury or contempt.