Reply Brief — Look v. Massachusetts

’ Supreme Court, U. $.

FILED

No. 79-1774 JUL 28 1980

IN THE c ——

Supreme Court of the United States

OcTOBER TERM, 1980

Donatp J. Loox, Petitioner,

v.

COMMONWEALTH OF MASSACHUSETTS, Respondent.

On Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetis

REPLY BRIEF FOR PETITIONER

Erwin N. GRISWOLD

1735 Eye Street, N.W.

Washington, D.C. 20006

(202) 861-3898

Attorney for Petitioner

Of Counsel:

KENNETH J. AYRES

JONES, Day, REAvis & PoGuE

1735 Eye Street, N.W.

Washington, D.C. 20006

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

Repiy Brier ror Tok PeTIvioner ..........0 00 eee ees 1

I SU OG ee ab als abeene tee eas 1

II. Dewiac or A Spwepy TRIAL ..... ec ccccvccccess 3

III. Iturcan Evecrronic SurveiLLaANCE ........... 7

a, weep eh teeth en bi vce. 10

TABLE OF AUTHORITIES

Barker v. Wingo, 407 U.B. 514 0... ccc ccnescecs 3, 4, 5, 6

Commonwealth v. Rodriguez, Mass. Adv. Sh. (1980)

ERNIE OT ee Sn ene a re er 6, n.3

Dillingham v, United States, 423 U.S. 64 ............ 3

Escobedo v. Illinvis, 378 U.S. 478 ......... cc cee eee 7

Massiah v. United States, 377 U.S. 201 .............. 7,8

Miranda v. Arizona, 384 U.S. 436 .............000e 9, 10

Spano v. New York, 360 U.S. 315 ..... cc cece ce uees 7,8

United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970).. 6

United States v. Henry, No. 79-121, decided June 16,

UE EAS ca os Laat hwh sk oa wae Ob wee 7, 8, 9, 10

IN THE

Supreme Couwt of the United States

OcTOBER TERM, 1980

No. 79-1774

Donap J. Loox, Petitioner,

wy

COMMONWEALTH OF MassacHusetts, Respondent.

On Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

REPLY BRIEF FOR PETITIONER

I, PREJUDICE

The Brief in Opposition contains gross improprieties

which are especially harmful in a ease such as this,

where the basic question is whether the conviction of

the defendant below was obtained at a trial which was

adequately free of prejudicial factors. The Common-

wealth in its Brief notes and relies on testimony which

was held inadmissible at trial, and also on a police re-

port which was never introduced as substantive evi-

dence at the trial. It is hard to understand the purpose

of this except as an effort to prejudice this Court’s

consideration of the case.

First, at page 6 of the Brief in Opposition, the

Commonwealth states as fact for the Court’ s consid-

eration the following:

During the treatment at the Look home, the emer-

gency medical technicians learned from Susan

2

Look that the shooting had followed an argu-

ment between Susan and the defendant (Tr. 3-

25).

This is an egregious use of testimony which was ex-

cluded from evidence in this case. The medical tech-

nician’s testimony was part of a voir dire hearing

appearing in the transcript at vol. 3, pp. 22-35. The

trial judge’s ruling to exclude that testimony is un-

equivocally set forth at vol. 3, p. 35.

Then, at pages 25-26 of the Brief in Opposition,

the Commonwealth quotes at length from a police

report, evidently in a renewed attempt to influence

this Court improperly. This police report was never

in evidence in the court below. The quoted portion of

the police report indicates that at some undisclosed

time, the state police officers were informed by one

of the medical technicians of an alleged argument be-

tween the petitioner and his wife. That report was

submitted by defense counsel, but only for voir dire

purposes and on a question of admissibility of evidence

totally unrelated to the quoted excerpt from the re-

port;' and it was marked by the trial court as ‘‘Voire

[sic] Dire Exhibit No. 21” (Tr. vol. 5, p. 131). The

contents of the police report were never submitted as

evidence at the trial, and were never before the jury

for its consideration.

2The voir dire during which this police report was submitted

concerned whether testimony by decedent’s step-mother as to cer-

tain telephone conversations should be excluded because defense

counsel had not been timely advised by the Commonwealth of

the content of her proposed testimony. (Tr. vol. 5, pp. 112-131.)

Defense counsel asked that the police report be marked only ‘‘as

a voir dire exhibit as part of . . . [his] exception’’ to the trial

court’s ruling to admit certain parts of the step-mother’s testi-

mony. (Tr. vol. 5, p. 130).

3

Despite these two specious assertions of fact made

by the Commonwealth in its Brief in Opposition, there

is no evidence in the record whatsoever suggesting

that Officers Carr and Masuret (who prepared the

police report) spoke to the medical technician con-

cerning the decedent’s statement prior to entering the

interrogation room at Wareham Police Station. (Tr.

vol. 1, pp. 57-78, 112-141; vol. 3, pp. 106-156, 156-

171; vol. 4, pp. 3-45; vol. 6, pp. 37-41.) There is not

one iota of evidence to support the Commonwealth’s

base'ess allegation that the state police officers had an

independent untainted source for the ‘‘argument”’ in-

formation revealed to them through the surreptitious

surveillance of petitioner’s conversation with the Ro-

chester police chief at the Wareham Police Station.

Il. DENIAL OF A SPEEDY TRIAL

A. The Commonwealth contends that the failure of

the court below to count the four-month period be-

tween petitioner’s arrest and indictment as part of

the delay relevant to petitioner’s speedy trial claim,

while in conflict with Dillingham v. United States, 423

U.S. 64, should be ignored. (Br. 15-16.) The reason

offered is that the court found the post-indictment

delay sufficient to ‘‘trigger’’ further inquiry, and

weighed that delay ‘‘heavily” against the Common-

wealth. This is unpersuasive in the face of the un-

doubted failure of the court below to apply this Court’s

decision in Dillingham. (Pet. App. C, 27a.)

As developed in the Petition, triggering further in-

quiry is but one function of length of delay under

Barker v. Wingo, 407 U.S. 514. (Pet. 11.) Dillingham

nowhere suggests that pre-indictment delay serves

only a triggering role. Moreover, that the court below

4

may have deemed the post-indictment delay to weigh

‘heavily’? in petitioner’s favor does not mean, as the

Commonwealth suggests, that proper consideration by

the court of the four-month additional delay could not

have made the delay ‘‘accure [sic] to the petitioner’s

benefit any more than it did.’’ (Br. 16.) Under Bar-

ker’s flexible ad hoc balancing test, the longer the

delay the more heavily it is counted against the gov-

ernment. Thus, the length of delay in this case should

have been weighed against the Commonwealth more

severely than it was. Particularly in a speedy trial

ease as strong as this one—involving a four and one-

half year delay and specific claims of serious preju-

dicial effects—it cannot reasonably be said with as-

surance that consideration of the additional four-

month delay would not have tipped the scales in peti-

tioner’s favor.

B. The Commonwealth fails to meet petitioner’s

argument that the court below misapplied Barker v.

Wingo. Rather, it says that petitioner ‘‘apparently”’

argues that the court below erred in imposing on him

“the burden of proving prejudice.’’ On this basis it

contends that since petitioner does not argue for a

shifting of burden of proof or an altering of Barker

v. Wingo’s balancing test, it is somehow “difficult to

discern’’ petitioner’s claim. (Br. 16-17.)

Petitioner’s position, spelled out at pages 9-16 of

the Petition, is quite clear, and more carefully honed.

Petitioner’s argument relates primarily not to who

has the burden of proof regarding prejudice, but

rather to what degree of proof is needed to meet that

burden, how the length of the delay affects the degree

of required proof or who bears the burden, and in

what manner and to what extent the length of delay

5

may serve as presumptive evidence of prejudice. Peti-

tioner contends that the utter failure of the court

below to view the length of the delay as having any

impact on the issue of prejudice was inconsistent with

Barker v. Wingo. The petitioner further points out

that these issues involving the interaction of the length

of delay and the issue of prejudice are considerably

unsettled, making this case appropriate for review by

this Court.

C. The Commonwealth characterizes petitioner’s al-

legations of prejudice from the four and one-half year

delay as ‘‘speculative and insubstantial.” (Br. 19.)

This wholly ignores the fact that the delay caused the

unavailability of petitioner’s key witness on the quality

of his marital relationship with the decedent, a sub-

ject which bore directiy upon the main issuc at trial:

petitioner’s motive.’ It is insufficient to dismiss this

claim of prejudice with a cavalier and unsubstantiated

conclusion that the missing witness’s testimony would

have been merely cumulative. Similarly, petitioner’s

claim of prejudice due to failed memories as to the

condition of the shotgun cannot be dismissed as readily

as the Commonwealth would argue.

Barker v. Wingo makes clear not only that a delay

may be ‘“‘presumptively prejudicial,’’ but that the

‘‘most serious’’ form of prejudice caused by delay is

‘the possibility that the defense will be impaired.”’

407 U.S. at 530, 532. Barker noted in particular the

danger of prejudice due to witnesses becoming un-

? This is starkly emphasized by the Commonwealth’s improper

use of excluded and non-admitted testimony to which reference is

made at the beginning of this Brief.

6

available or losing memory. This Court said (407 U.S.

at 532):

If witnesses die or disappear during a delay, the

prejudice is obvious. There is also prejudice if

defense witnesses are unable to recall accurately

events of the distant past. Loss of memory, how-

ever, is not always reflected in the record because

what has been forgotten can rarely be shown.

{Emphasis supplied. ] *

Under Barker, petitioner’s claims of witness unavail-

ability and memory loss deserve more careful consider-

ation than the Commonwealth suggests.

D. The Commonwealth’s citations of authority at

pages 22-23 of its Brief in Opposition are particularly

unsuccessful in meeting petitioner’s contentions. Thus,

as authority for the proposition that the mere passage

of time does not give rise to a presumption of preju-

dice, the Commonwealth cites only United States v.

DeLeo, 422 F.2d 487, 494 (1st Cir. 1970), a case de-

cided two years before this Court stated in Barker v.

Wingo that delay alone could be ‘‘ presumptively preju-

dicial.’’ 407 U.S. at 530. All of the other cases cited

are likewise readily distinguishable.

*The Massachusetts court’s reluctance to accept Barker on this

point is apparent when the decision below is read in conjunction

with Commonwealth v. Rodriguez, Mass. Adv. Sh. (1980) 1223,

decided May 13, 1980. Although the court upheld in that case a

dismissal for denial of a speedy trial, it stated its unwillingness

to accept the finding of the trial court there that ‘‘ ‘lapse of time

has probably dimmed the memory of witnesses who might be favor-

able to the defendant as well as the memory of prosecution wit-

nesses concerning details that might be elicited on cross-examina-

tion which might be favorable to the defendant.’ ’’ Mass. Adv. Sh.

(1980) at 1229.

7

Ill. ILLEGAL ELECTRONIC SURVEILLANCE

Since the petition was filed in this case, this Court

has decided the case of United States v. Henry, No.

79-121, decided June 16, 1980. The Henry case involves

elements which are relevant here, under the Sixth

Amendment, as well as under the Fourth and Fifth

Amendments. In considering the Henry case here, two

facts must be recognized.

1. No question was raised below with respect to the

Sixth Amendment. But, in this area of surreptitious

interception of conversations, the questions under the

Fourth, Fifth and Sixth Amendments are so closely

interrelated that a question, squarely raised, about the

propriety of an interception should be considered by

this Court under any of the possibly applicable con-

stitutional provisions. This is high-lighted by the fact

that the reasoning used by the Court in the Henry case

is applicable almost step by step to the facts of this

case, as will be indicated below.

2. In Henry (and in Spano v. New York, 360 U.S.

315, and Masstah v. United States, 377 U.S. 201), the

defendant had been indicted at the time the relevant

facts occurred. Here, the petitioner had not been in-

dicted when his conversation was intercepted. But he

was under arrest. And the police investigation, under

the circumstances ‘‘was no longer a general inquiry

into an unsolved crime, but ha[d] begun to focus on a

particular subject.’’ Escobedo v. Illinots, 378 U.S. 478,

490. Here, of course, Look was always the only subject.

He was the sole possible target in the case.

All of the reasoning applied by this Court in Esco-

bedo, Spano and Massiah is equally applicable here.

And the parallel between this case and Henry remains

very close. In both Spano and Masstah, the accused

had counsel at the time the police surveillance oc-

8

curred. Here, the accused did not have counsel at that

time, but the Henry decision shows that this is not

essential to the application of the Sixth Amendment

guarantee of right to counsel.

The petitioner’s conversation here, which was sur-

reptitiously overheard, was with a police officer—as

in Spano. Here, as in Spano, that officer was not the

officer in charge of the case, and he was a long-time

friend. As the trial judge found (Pet. 13a), Chief

Pierce said to the petitioner: ‘‘I have known you all

my life”; and he repeated this statement. The whole

account shows that Chief Pierce was acting as a friend

at a time of crisis in the petitioner’s life. And neither

the petitioner nor Chief Pierce was aware that their

conversation was being surreptitiously overheard by

the police officers at the desk.

There is much in Henry which fits into this picture.

Thus, the Court said in Henry (slip op., p. 5);

The present case involves incriminating state-

ments made by the accused to an undisclosed and

undercover government informant while in cus-

tody and after indictment.

Here the accused was in custody, though not yet in-

dicted. His statements were surreptitiously made

known to undisclosed police officers, and it is this un-

disclosed electronic disclosure which made the infor-

mation available to the police, not anything said by

Chief Pierce. In Henry, as in Massiah, the police offi-

cers obtained and utilized information from the peti-

tioner without his knowledge that his words were being

communicated to them as he spoke.

Here the ‘‘listening post’’ was ‘‘an inanimate elec-

tronic device’’ (Henry, slip. op., p. 7, fn. 9), but the

presence of Chief Pierce, though he was unaware of

9

the electronic surveillance, did provide ‘‘capability of

leading the conversation into any particular subject

or building any particular replies.” Here, ‘‘the govern-

ment has interfered with the right to counsel of the

accused by ‘deliberately eliciting’ incriminating state-

ments’”’ (Henry, slip op., p. 8), though subtly and by

indirection, by listening in on the conversation between

Pierce and Look. In Henry, it was ‘‘undisputed that

Henry was unaware of Nichols’ role as a government

informant.” (Slip op., p. 8.) In the present case, it is

undisputed that both Pierce and Look were unaware

that their conversation was being overheard, and that

they were providing information to the police officers.

Look knew that he was speaking to a police officer,

and he took his chances on that; but he did not know

that what he was saying was being heard by the offi-

cers at the desk. As the Court said in Henry, ‘‘Con-

versation stimulated in such circumstances may elicit

information that an accused would not intentionally

reveal to persons known to be government agents.”

(Henry, slip op., p. 9.) In Henry, this Court said (slip

op., p. 9): ‘Henry, being unaware that Nichols was a

government agent expressly commissioned to secure

evidence cannot be held to have waived his right to the

assistance of counsel.’’ (Emphasis added.) Here, Look

was unaware that his conversation with Pierce was

being electronically communicated to the police officers

at the desk. In this situation, he cannot be held to have

waived his right to the assistance of counsel.

Finally, as in Henry, Look’s “incarceration at the

time he was engaged in conversation,” with Pierce

‘is also a relevant factor.’’ (Slip op., p. 9.) In Henry,

this Court referred to the passage in Miranda which

deals with ‘‘the powerful psychological inducement to

reach for aid when a person is in confinement.’’ (Slip

10

op., p. 10.) Here, Look was in custody and he was

clearly particularly susceptible to the invasion of his

privacy through the undisclosed electronic device. As

this Court said in Henry (slip op., p. 10): ‘‘ By inten-

tionally creating a situation likely to induce Henry to

make incriminating statements without the assistance

of counsel, the government violated Henry’s Sixth

Amendment right to counsel.’’

The Brief in Opposition (p. 25) could be read to

suggest that petitioner was advised of his rights under

Miranda v. Arizona, 384 U.S. 436, during his conver-

sation with Mr. Pierce. That is not so. Petitioner was

advised of his Miranda rights while at the hospital

(Tr. vol. 3, p. 45), before he was moved to the Ware-

ham Police Station. Petitioner was not advised of his

Miranda rights during the approximately two and

three-quarters hours he spent in a separate room at

the police station, the first hour of which was spent

alone with Mr. Pierce. (R. 37-38; Tr. vol. 1, p. 51;

vol. 3, pp. 44-76.) Thereafter, at approximately 2:40

a.m., the state police officers began their interrogation

of the defendant and informed him of his Miranda

rights at that time (R. 39). However, by that time,

petitioner’s conversation with Mr. Pierce had already

been intercepted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Of Counsel:

KENNETH J. AYRES ErRwIN N. GRISWOLD

JONES, Day, Reavis & Pocut 1735 Eye Street, N.W.

1735 Eye Street, N.W. Washington, D.C. 20006

Washington, D.C. 20006 (202) 861-3898

Attorney for Petitioner

July 1980