Opposition — Rado v. Connecticut

,.™" Supreme Court, Us |

* FILED

MAY *@ 1980

MICHAEL RODAK, IRs CLERN

In the

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1333

DONALD A. RADO,

Petitioner

Vv.

STATE OF CONNECTICUT, and JOHN R. MANSON,

COMMISSIONER OF CORRECTIONS,

Respondents

MOTION IN OPPOSITION TO THE PETITION FOR

A WRIT OF CERTIORARI

Robert E. Beach, Jr.

Assistant State's Attorney

P.O. Box 5000

a Wallingford, CT 06492

TABLE OF CONTENTS

TABLE OF AUTHORITIES - (Continued)

TABLE OF AUTHORITIES

Page | Page

California v. Green, United States v. Mayes,

+ a ee 6 SSID F 2d 637 (en Cir. 19758... 8

Douglas v. Alabama, | United States v. Payne,

See Bie, BE REOOOSS oan kh eee es) 6 | OD F-2d LOO Cath Cir. 1974) 7

Dutton v. Evans,

Oren 6 Ge 6 | see oT oO teh cir. 1976)..... 7

Namet v. United States, | United States ex rel. Thomas v.

U.3: Pani ea Gas wee 7 Cuyler, 548 F.2d Gol

Chi Cie. 1977) oe a era es ee ee a ee 7

Parker v. Randolph,

Se Oe ee Se 6 5 oS os hs 8

Rado v. Connecticut, 607 F.2d

Pie mer. &-s es. . | See l

Robbins v. Small, 371 F.2d 793

CA Sees BPE aint Soke a ceeer ieee 6

State v. Rado,

(e; ~ e Gee eee 1

Tri v. United States,

430 F.2d 372 (7th Cir. 1970)..... 8

United States v. Coppola,

479 F.2d 1153 Oth Gan. Bera... 8

United States v. King,

461 F.2d 53 ai ta: ° sa 8

United States v. Leslie,

942 F.2d 269 (Sth Cir. 1976)..... 7

iii

ii

I. STATEMENT OF THE CASE

The history of the proceedings is re-

ported in the petition for certification,

p. 9, and the respondent agrees with the

petitioner's recital. Briefly, the petition-

er was convicted of conspiracy, burglary,

and robbery in the Superior Court of Connect-

icut in 1972. His conviction was affirmed by

the Supreme Court of Connecticut in State v.

Rado, 172 Conn. 74 (1976), cert. denie

U.S. 918 (1977).

The petitioner then addressed the United

States District Court for the District of

Connecticut for collateral relief. The

Court (Blumenfeld,J.) granted relief on Octo-

ber 24, 1978. The State of Connecticut ap-

pealed to the United States Court of Appeals

for the Second Circuit, which in turn re-

versed the ruling of the District Court.

Rado v. State of Connecticut, 607 F.2d 572

(2d Cir. 1979). The petitioner has sought

review of the Second Circuit's decision by

this Court.

In the Federal Court proceedings, the

petitioner has consistently pressed two

grounds for relief: violation of the Con-

frontation Clause incorporated in the Sixth

Amendment to the Constitution of the United

States; see Douglas v. Alabama, 380 U.S. 415

(1965); and violation of the Fifth Amendment;

see Namet v. United States, 373 U.S. 179

(1963). The State of Connecticut strenuously

urges that neither provision of the Consti-

tution was violated and, more particularly,

that none of the criteria for the granting

of certiorari have been satisfied.

The testimony which resulted in the con-

viction is not subject to serious dispute,

although the emphasis accorded by the various

1

c

reviewing courts has differed. While the

issue before this Court concerns primarily

the testimony of one Fred Hall, a factual

background of the entire trial may be useful.

The opinion of the Connecticut Supreme

Court in State v. Rado, supra, contains a

precis of the evidence. See petitioner's

brief, pp. E-3 to E-4. In essence, Sean

Donnelly, Wayne Epprecht, and Fred Hall, the

witness in issue, met in the petitioner's

home on July 2, 1972, and proposed the rob-

bery of a jeweler's widow. The widow's home

could be seen from the defendant's home.

Rado suggested that jewelry and money could

be found in the widow's home. Rado gave

Epprecht a pistol and the witness Hall gave

Donnelly another pistol. In addition to the

pistols, Rado gave Donnelly a "walkie-talkie"

with which Donnelly was supposed to report

any problems. State v. Rado, supra, 74.

The witness Hall drove Donnelly and

Epprecht to the widow's house. As the Con-

necticut Supreme Court stated, "[They] struck

and bound Theresa Hyman and ransacked the

house, taking a number of items of jewelry.

When surprised by a neighbor, Donnelly and

Epprecht fled, dropping Rado's walkie-talkie

in their haste, were picked up by Hall in

his car, and returned to Rado's home, where

they changed their clothes and gave the pis-

tols back to Rado. The ownership of the

walkie-talkie dropped by Donnelly was traced

to Rado and, during a search authorized by a

warrant, the pistol used by Epprecht during

the robbery was found in the Rado home."

State v. Rado, supra, 76-77.

The primary sources of the details of

the crime were Donnelly and Epprecht them-

selves. See Petitioner's Appendix A-3. Al-

though both were subjected to lengthy cross-

examination, they remained steadfast in their

2

testimony as to the perpetration and circun-

stances of the crime. (Pet. App. A-4)

Epprecht, during the trial, admitted that he

had previously perjured himself regarding

previous contacts with the Waterbury, Con-

necticut area, but that admission had little

or no impact on his testimony concerning the

crime. (See Pet. App. A-4)

Further, an employee of Radio Shack,

which sells electronic equipment in Water-

bury, testified that the "walkie-talkie"

dropped by Donnelly had the same serial nun-

bers as that sold to a person identifying

himself as "D. Rado, 47 Mildred Avenue, Wat-

erbury, Connecticut," which was the defen-

dant's address. (A-4 - A-5)

Given the amount of evidence produced

against the petitioner, the testimony of Fred

Hall was deemed by the Second Circuit to be

neither "crucial" nor "devastating." (A-17)

A transcript of Hall's testimony is appended

to the petitioner's brief and also is quoted

extensively in the opinion of the Second

Circuit; (A-6 - A-13) very briefly, Hall

freely testified that he was a friend and

sometime employee of Rado. (A-6) He also

testified that he knew Epprecht. (A-6)

When asked about his car, Hall began to

become evasive and the court declared him a

hostile witness. (A-6) After the state's

attorney returned to the subject of Hall's -

relationship with Rado, Hall attempted to

invoke the Fifth Amendment privilege against

self-incrimination. Upon the court's direc-

tion to the witness to answer the question,

Hall responded to the question. (A-7) When

the state's attorney asked Hall whether he

had ever taken Epprecht and Donnelly to Rado's

house, Hall again sought to invoke the Fifth

Amendment. The court excused the jury and

explained to Hall that because he had pleaded

3

guilty to a conspiracy charge involving the

same events on the eve of the petitioner's

trial, he no longer had the privilege. (A-7)

On the jury's return, Hall again refused to

answer, but at the court's direction, Hall

finally said that he had met with Epprecht

and Donnelly at Rado's house on July 3, 1972.

After again initially refusing to answer,

Hall said that he was not sure whether he had

seen a gun or a walkie-talkie at Rado's house

at that time. (A-7)

Then the state's attorney asked whether

the four had planned the robbery. Hall re-

fused to answer; the court ordered Hall to

answer. The court excused the jury and told

Hall that further refusal to answer would

result in a finding of contempt. The state's

attorney said he would withdraw the question.

(A-7 - A-8)

When the jury again returned, the state's

attorney broached the subject of Hall's prior

guilty plea. Apparently reading from a

transcript of the proceedings during which

the plea was taken, the state's attorney

asked whether the witness recalled the reci-

tation of the factual basis for the plea,

to wit, the essence of the crime and its

planning as noted above. The witness Hall

said that he recalled the recitation and his

own agreement, at the time, with the facts.

When the state's attorney asked, in the peti-

tioner's trial, if the recitation was true,

the court again excused the jury, a bench

conference was held, and the state's attorney

withdrew the question. (A-8 - A-9) On the

jury's return, the state's attorney again

referred to the proceedings of Hall's guilty

plea; Hall recalled admitting that, inter

alia, Rado had participated in the planning

of the crime. (A-10)

‘7s

“-

The state's attorney then asked a series

of four questions directed at the essence of

the crime. The witness refused to answer and

the questions were withdrawn. (A-1l - A-12)

On cross-examination, Hall was asked

about a possible recommendation for leniency

in return for his testimony. He again at-

tempted to invoke his privilege, but when

ordered to answer by the court, he stated

that his attorney had been offered a "deal",

the specifics of which he could not remember.

Hall testified as to some of the occurrences

on July 3,1972, but not about the crime.

Hall tried to assert a privilege when asked

if he had been to a Radio Shack store in

Waterbury, and Rado's attorney withdrew the

question. (A-12 - A-13)

An evidentiary hearing in the United

States District Court revealed that prior to

the commencement of Rado's trial, Hall agreed

to plead guilty to a conspiracy charge in re-

turn for nolles on substantive charges of

burglary and robbery and a recommendation of

a sentence of two to four years, with the

possibility of a lower recommendation if

Hall cooperated. The state's attorney ap-

parently also agreed not to contest Hall's

right to assert a privilege against self-

incrimination, but it was agreed that either

side could subpoena Hall. The same judge who

presided at Rado's trial accepted the plea

and was aware of the terms of the agreement,

except for the Fifth Amendment privilege

arrangement. The court noted that if it were

unable to agree to impose the recommended

sentence, it would allow Hall to withdraw his

plea. The guilty plea was entered and the

representations and responses noted above

were made. The state's attorney, then,

didn't know prior to calling Hall as a wit-

ness in Rado's trial whether he would attempt

to invoke a privilege. (A-5 - A-6)

5

II. REASONS FOR DENYING CERTIORTARI

A. Douglas v. Alabama, 380 U.S. 415

(1965), was not violated in this case. In

Douglas, the witness had supposedly supplied

a signed confession, but the witness refused

to answer any questions, even to acknowledge

he made the statement. The prosecutor had

asked a series of questions that were not

answered and which implicated Douglas. This

Court ruled that the right of confrontation

was violated, because the prosecutor, who

apparently had read from the statement, could

not be cross-examined, and the witness could

not be cross-examined because he did not even

admit making the statement.

The Second Circuit distinguished Douglas

on three grounds: that the testimony was

neither "crucial" nor "devastating"; that

Hall was available for cross-examination, in

that Hall did respond when so ordered and

admitted making the statements attributed to

him; and that the statements bore strong

indicia of reliability, as they were made in

the context of a guilty plea and were cor-

roborated by independent direct testimony.

This case, then, is far more comparable to

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

than to Douglas. See also Dutton v. Evans,

400 U.S. 74 (1970). It is urged that the

considerations underlying Douglas are simply

not applicable to this case; the witness

here clearly could have been cross-examined

about the statements.

The petitioner also argues that the

opinion conflicts with those of other cir-

cuits. The respondent disagrees; the prin-

ciples of law applied by the Second Circuit

are consonant with those applied by other

circuits. In Robbins v. Small, 371 F.2d 793

(lst Cir. 1967), relied upon by the petitioner,

6

a witness had purportedly made a statement,

but, when he took the stand, he repeatedly

invoked his privilege against self-incrimina-

tion; he did not admit making the statement.

As the state had attempted to bolster an un-

certain case by introducing the substance of

a statement not in evidence and not subject

to cross-examination; one cannot be cross-

examined on the truth of a statement he has

not admitted making. Thus the facts of

Robbins parallel those of Douglas rather than

those of Green and Dutton. Phare simply is

no conflict with this case.

Other circuits have, in fact, expressed

the same reasoning as the Second Circuit.

See, e.g., United States ex ere ie Vv. .

Cuyler, 548 F.2d 461 (3rd Cir. ; Unite

States v. Payne, 492 F.2d 449 (4th Cir. 1974);

United States v. Leslie, 542 F.2d 285 (5th

Cir. 1976); United States v. Rogers, 540

F.2d 490 (8th Cir. 19/6). It is suggested

that there is not substantial disagreement

among the Circuits.

B. Namet v. United States, 373 U.S. 179

(1963), similarly was not violated. Under

Namet, prosecutorial misconduct may occur

when a case is attempted to be proved by

consciously and flagrantly encouraging the

drawing of inferences arising from the privi-

lege, or, on occasion, when inferences from

a witness’ refusal to answer add critical

weight in a form not subject to cross-exami-

nation. The Second Circuit, while recog-

nizing the principles of Namet, held that

they did not compel a new trial in this case

because the prosecutor had no prior know-

ledge that the witness would attempt to in-

voke the privilege; the state's attorney, in

a belief shared by the trial court, thought

that the witness was not entitled to the

privilege in this case; and, in the context

7

of the trial as a whole, whatever inferences

may have been drawn did not add critical

weight to the state's case. See also United

States v. Mandujano, 425 U.S. 564 (1976).

There appears to be no conflict between this

opinion and Namet.

There similarly exists no legal dis-

parity among the Circuit Courts. The cases

cited by the petitioner, such as Robbins v.

‘Small, supra; United States v. Mayes, 512

F.2d 637, 649 (6th cir. 1975), cert. denied,

422 U.S. 108 (1975); United States v. King,

461 F.2d 53 (8th Cir. 1972); and United

States v. Coppola, 479 F.2d 1153 (lOth Cir.

1973); simply apply the same principles to

varying factual situations. See also Tri

v. United States, 430 F.2d 372 (7th Cir.

1970).

It is suggested that this Court has

dealt with problems arising under the Con-

frontation Clause from Douglas and Namet to

Parker v. Randolph, 4 # , 99

5.cc,. 2is0 COLE While the enunciated

principles may on occasion be difficult to

apply to a particular factual pattern, the

principles themselves are quite clear. It

is suggested that this case, where a witness

admitted making the statement and was avail-

able for cross-examination, and where he

answered questions when ordered to do so by

the court, has been decided in a way con-

sistent with this Court's decisions and no

useful purpose would be served by the grant-

ing of certiorari.

THE RESPONDENTS,

By ROBERT E. BEACH, JR.

Assistant State's Attorney

Office of the Chief

State's Attorney

P.O. Box 5000

Wallingford, CT 06492

PROOF OF SERVICE

This is to certify that on May 23, 1980,

a copy of the foregoing was mailed to David

S. Golub, Esquire, P.O. Box 3247, Stamford,

Connecticut 06905.

ROBERT E. BEACH, JR.

Assistant State's Attorney