Petition — Massachusetts v. Brant

Supreme Court, U.S.

FILED

80-488 SEP 16 1980

re MICHAEL RODAK, JR., CLERK

In the

Supreme Court of the United States.

OcrosBer TERM, 1980.

COMMONWEALTH OF MASSACHUSETTS.

PETITIONER,

©.

JEFFREY A. BRANT,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial Court

of the Commonwealth of Massachusetts.

FrANCIs X. BELLOTTI,

Attorney General,

BarBaRA A.H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Division,

Counsel of Record,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

I.

Questions Presented.

I. Whether truthfully informing a

Gefendant, after he has declined to answer

guestions without his attorney being

present, that his co-defendant has mace a

statement constitutes interrogation under

Rhode Island v. Innis, U.S. , 100 S.

Ct. 1689 (1980)?

II. Whether police behavior which

constitutes "subtle compulsion" requires

supression of al] statements without regard

to intervening circumstances?

III. Whether Rhode Island v. Innis,

supra, should be granted retroactive

application to trials concluded prior to

the date of that decision?

Parties.

The Commonwealth and Jeffrey A. Brant

are the sole parties to this petition.

II.

TABLE OF CONTENTS

OUBBEIORS PEOGONTEC. ccccccccccccccccccccceclh

EE ar errs

Opinions EEE EE re

EEE EEE a Cr re

Constitutional Provision Invoked.......ceeee2

Statement of the EE er

EE EEE a ee

Reasons for Granting Review...ccceccecveseslO

((jj}]}}]. QQ. Re eeee bes seeesecdcccccccecocec LO

DPPC RSG RGGE Seb Seecccocccccccccccoccccelts

Za THE ACTION OF THE POLTCE AFTER

THE DEFENDANT HAD CLAIMED HIS RIGHTS

UNDER MIRANDA V. ARIZONA, SUPRA DOES

NOT REFLECT A MEASURE OF COMPULSION

SUFFICIENT TO CONSTITUTE INTERROGATION

UNDER RHODE ISLAND V. INNIS, ae

100 S. i 1689 ti i Seep ge eeecereoe ke

II. POLICE BEHAVIOR WHICH CONSTITUTES

"SUBTLE COMPULSION" DOES NOT REQUIRE

SUPRESSION OF A STATEMENT WHICH IS THE

PRODUCT OF INTERVENING CIRCUMSTANCES......15

III.

III. THE RULE OF RHODE ISLAND V. INNIS

SHOULD NOT BE ACCORDED RETROACTIVE

APPLICATION TO TRIALS CONCLUDED PRIOR

TO THE DATE OF THAT DECISION......ccceeeee22

Caseliueied.'. 6% cols oko bac ea aka eis cee

Appendices la

A-Commonwealth v. Jeffrey A. Brant

Mass. Adv. Sh. (1980) 1473.......622-.]a

B-Commonwealth v. Jeffrey A, Brant

Mass. App. Ct. Av. Sh. (1979) 2124,

395 N.E. 2a > FRR A aa ee

C-Findings, Rulings and Order on

Defendants' Motions to Suppress.......lc

IV.

TABLE OF AUTHORITIES

Cases

Commonwealth v. Brant

Mass. Adv. Sh. (1980) 1473,

NE. 20« Dna s oe be 6 bok eb ehe ees bee

Commonwealth v. Brant

Mass. App. Ct. (1979) 2124,

395 N.B. 26. 1320 (1979) wc cccccccccceecd?

Farretta v. California

422 - - 806 ( Paheneaedenbaucccesebere

Johnson v. New Jersey

384 U.S. 719 (1966) .cccccccccccelsgacgad

Michigan v. Moseley

423 i - 96 fi ag) Peeeeer rere Terry? sft;

Mirancea v. Arizona

384 U.B. 1602, (1966) 2.259922] -12,13,18,

Zlseeoeae

North Carolina v. Butler

| Uele J) Se By. Cee T7ISS: (ISTH) «weet?

Oregon v. Hass

420 UB. 714 Pi ip i Pere eer eee Tee Te TT ee.

People v. Bocner

N.Y. S. 2¢€ ‘App. Div.) ’

27 CrbL 2414 gig) *. ) are ers

Rhoce Island v. Innis

U.S. , 100 S. Ct. 1689 (1980)

I, 4,11,12,13,14,15,17,18,20,21,22,23,25

State v. Durand

Neb. » at Ce. te 2300

TPs. oi edeeibkan ebenesoteanwnee

State v. Jones

La. >» at Cd he 2062

a dite re ue bead ck ealeae eee

State v. Wiberg

Minn. » 27 Ce. Le 2374

ME Fic 7 cud cidoccnassovisecdebasanuenul

Wong Sun v. United States

371 U.S. 471 (1963). ccccccccccccccceeld

Constitutional Provisions

United States Constitution,

Fifth I «5 cgeessédnsekeaeeueuen

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

Vv.

JEFFREY A. BRANT

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME CUDICIAL COURT

OF THE COMMONWEALTH OF MASSACHUSETTS.

PETITION FOR WRIT OF CERTIORARI

The Commonwealth prays that a writ of

certiorari issue to review the judgment of

the Supreme Jucicial Court of Massachusetts.

Opinions Below.

The opinion of the Supreme Judicial

Court is reported at Mass. Adv. Sh. (1980)

1473, 406 N.E. 24 1021]. The opinion of the

Appeals Court is reported at Mass. App. Ct.

Adv. Sh. (1979) 2124, 395 N.E. 2d. 1320.

oe.

Jurisdiction.

The judgment of the Court helow was

entered on June 18, 1980. An application

for an extension of time to and including

September 16, 1980 in which to petition for

a Writ of Certiorari was allowed on July

14, 1980 (Brennan, J.) The turisdiction

of this Court jis invoked anal 28 U.S.C.

ene

§1257 (3)

Constitutional Provision Invokeée.

Fifth Amencment.

No person shal] be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or incictmnet of a

Grand Jury, except jin cases arising in the

land or naval forces, or in the Militia,

when jn actual service in time of War or

public danger; ror shall any person be

subiect for the same offense to be twice

put in jeopardy of life or limb; nor shal}

- 3-

be compelled in any criminal case to be a

witness against himself, nor be Ceprived of

life, liberty, or property, without due

process of law; nor shal] private property

be taken for public use, without just

compensation.

Statement of the Case.

The responeent was convicted of armed

robbery while maskee and sentenced to not

less than eighteen vears nor more than

thirty years. Prior to trial he filed a

motion to supress statements as they were

obtainee in violation of his Constitutional]

rights. After a hearing the motion was

Ceniecd in part and the respondert

excepted. The Anpea)s Court found no

error. Mess. App. Ct. Av. Sh. (1979) 2124,

395 N.E. 2d. 1320 (App. B). The Suvoreme

Jucicial Court granted further appellate

a a

review and applying Rhode IsJand v.

Innis, U.S. » 200.8. Ce. 3662

(1980), reversed the judgment on the basis

that alj statements ard admissions "should

have been excluded as ohtained in violation

of his riahts under the Fifth Amendmert of

the Constitution of the United States"

Commonwealth v. Brant, Mass. Adv. Sh.

(1980) 1473, 1484 406 N.E. 2d. 102] (Apo.

A.).

Statement of Facts.

The facts material to the consideration

of the questions presented are summarized

as follows:

On December 28, 1977, an empJoyee of a

market was hele up by two armed men who

were masked. In the course of the robbery

the clerk was shot and seriouslv wounded.

The robbers fled. On February 4, 1978, the

respondent and one Nei] Kampen, Jr. were

= § «

arrested in Florida, after a high speed

chase in which shots were exchanged with

police. On heing hooked, each was informed

of his Miranda rights. Brant requestede and

was permitted to ca)] he public defender,

On the following Cay they were brought

to court on the Florida charges anée were

represented by a public defender who was on

February 13, 1978, relieved from

representing them. On that Cay

Massachusetts authorities requested by

telephone that the Florida deputy sheriff,

Hudepoh)], interview Brart anc Kampen

concerning the Massachusetts robbery. On

February 14, Hucepoh) interviewee Kempen

ane informed him of the call from

Massachusetts. He stated that he wished to

obtain Kampen's side of the story ane that

he would rot inanire about the Florida

charges. Hudepoh] informee Kampen of his

Miranda's rights ane ascertained that he

o 6

understooe them. Kampen replied "Yes" to

Hudepoh]'s auestion "Do you wish to talk

with me now without a Jawyer?" Kampen then

gave the Sheriff an inculpatory statement

which was recorded on tape and on the

following Cay transcribed, signed by Kampen

and notarizee@. At the close of the

interview Kampen was permitted to talk

briefly with Brant.

As noted by the Appeals Court there was

testimony that prior to any interrogation,

Brant had alreacy discussed with Kampen the

possibility of making a “dea)}" to return to

Massachusetts and avoid imprisonment in

Florida. Commonwealth v. Brant, Mass. App.

Ct. (1979) 2124 395 N.E. 2. 1320 (1979).

(App. B).

Kampen's inculpatory statement was

communicated to Massachusetts and

complaints against him issued in

—

Massachusetts for armed robbery while

maskec and for assault with intent to

murder. An assistant district attorney

then left for Florida with two police

officers.

On February 15, Kampen and Brant, new

and separate counsel having been appointed

to represent each of them, were arraigned

on the Florida charges. The Massachusetts

officials and Hudepohl were present in

court at the arraignment and knew that

Brant and Kampen were represented by

counsel. They intended to interroaate

Brant later that day. That afternoon Brant

and Kampen were brought to an interview

room in the jail, where the Massachusetts

officials and Hudepohl had gathered.

Hudepohl] tu.ined on a tape recorder and

began to read to Brant his rights from a

document entitle¢e "Brevard County Sheriff's

- 8 -

Department Interrogation Preamble".

Included therein was the question, "Are you

willing to proceed without an attorney

being present to represent you?" Ir the

document this question is followed by a

blank space for the response of the person

heing interviewed, When Hudepohl read the

question to Brant, Brant replied "No".

Hudepohl] then wrote that response on the

document. One of the Massachusetts

officials then mentioned the fact that

Kampen had already given a statement to the

police. _Hudepohl] stated that this was so

and that Kampen's statement had beer signed

and notarized. Hudepoh] then turned off

the tape recorder. At that ‘juncture,

Kampen remarked that his statement was "al}

Jies." Brant then requested to speak with

Kampen privately. That request was granted,

Fourteen minutes Tater Brant aii Kampen

returned to the interview room. Brant

- 9 «

asked that the tape recorder be turned back

on as he wished to make a statement.

Hudepoh] complied with his request ané

again “Airected Brant's attention to the

interrogation preamble and specifically to

the question of Brant's willingness to

proceed without an attorney being present

to represent him. Brant himself crosseé

out the earlier response "No", wrote in

"Yes", and signed his name indicating his

willingness to make a statement without his

attorney being present.

There followed questions by Hudepoh!

and answers hy Brant. At some point,

Kampen volunteered a response to a question

and one of the Massachusetts officials

joined the dialogue. At this point,

Hudepohl reminéced Kampen of his Miranda

riahts, ascertained that he understood them

and obtained an affirmative answer when he

asked Kampen whether he still wished to

» 36. «

talk without having his attorney present.

Other questions to Brant and Kampen

followed with their responses, the latter

virtually amounting to confessions to the

Massachusetts offenses.

The Court further found that while

incarcerated in the county jail each had

been told by other prisoners that if they

were convicted and incarcerated in Florida

they would be subject to homosexual

attacks. Finally, the Court also found

that the authorities "in permitting Brant

to speak with Kampen, hoped and expected

that Brant would change his mine anéc make a

statement." (Fineings, Rulings and Order on

Defendants' Motions to Suppress, (App. C).

Reasons for Granting Review.

Summary.

The decision below constitutes an

overly broad and expansive application of

» 3 =

this Court's recent decision in Rhode

Island v. Innis, U.S. ,» 400 8B. Ct.

1682 (1980), which applies only the first

prong of the test enunciated in that

decision. In doing so the Court below, in

effect establishes a per se prohibition

against any police conduct after a

defendant has claimed a right under Miranda

v. Arizona, 384 U.S. 1602 (1966), if an

incriminating response is forthcoming,

regardjJess of intervening circumstarces.

Moreover, it is of utmost importance to

resolve whether the new rule announced in

Innis to the effect that the term

"jnterrogation" no longer means simply

"questioning", but now extends to "any

words or actions on the part of police

(other than those normally attendant to

arrest and custody) that the police should

know are reasonably likely to elicit an

- 12 -

incriminating response from the suspect"

((footnotes omitted) (Innis at 1689))

should be accorded retroactive application

to trials concluded hefore the announcement

of that decision, or, whether this new

constitutional rule of criminal procedure,

like Miranda v. Arizona, 384 U.S. 436

(1966) itself, should apply only to trials

begun after the decision was announced.

See Johnson v. New Jersey, 384 U.S. 719,

732 (1966).

Argument.

I. THE ACTION OF THE POLICE AFTER THE

DEFENDANT HAD CLAIMED HIS RIGHTS

UNDER MIRANDA V. ARIZONA, SUPRA

DOES NOT REFLECT A MEASURE OF

COMPULSION SUFFICIENT TO

CONSTITUTE INTERROGATION UNDER

RHODE ISLAND V. INNIS, U.S. _

100 S. CT. 1689 (1980).

The effect of the interpretation ané

application of Rhode Island v. Innis

U.S. , 100 S. Ct. 1682 (1980) by the

Court below is to automatically impute a

- 13 -

measure of compulsion to every act of

police authorities thus rendering those

words or actions as necesserily

constituting interrogation barreé by

Miranca, supra. Such is not the holding of

this Court in Innis. In Innis, this Court

hele that the term interrogation was not

limited to express questioning but extended

to certain psychological] ploys or

techniques of persuasion which the police

should know are reasonably likely to evoke

an incriminating response. This Court, it

is submitted, Aid not eliminate from

consideration the question of whether the

wores or actions of the official ina

custodial setting were such as would

"subjugate the individual] to the will of

his examiner" which was the concern in

Miranda. Fowever, the Court helow

automatically imputes a sufficient measure

» 94 «

of compulsion to an officer's true

statement that a co-defencant, who was

present at the interview, had made a

statement, to render that action

impermissable interrogation under Innis,

thus rendering a subsequent incriminating

response subject to the exclusionary rule.

Such a per se equation of any police action

with an impermissable compulsion

@rastically expands the mancates of the

Fifth Amendment as enunciated by this

Court. Such an expansion of constitutional]

mancates is beyond the power of a state

court. Oregon v. Hass, 420 U.S. 714 (1975)

Moreover, the Court below has iqnored

the second prong of the test enunciated in

Innis which must be met before an

incriminating response may be excluded;

that is, that the response is indeed the

product of the officer's statement. Here,

» 36 «

the statement elicited no incriminating

response. That it may have provided an

"impetus" for Brant's further action is not

sufficient for applying the exclusionary

rule. The Court below has erred in the

Same manner as did the Supreme Court of

Rhode Island in Innis. Innis at 1691.

II. POLICE BEHAVIOR WHICH CONSTITUTES

"SUBTLE COMPULSION" DOES NOT

REQUIRE SUPPRESSION OF A STATEMENT

WHICH IS THE PRODUCT OF

INTERVENING CIRCUMSTANCES.

The sequence of events is of utmest

importance in determining whether uncer a

reasonable interpretation of this Court's

decision in Innis suppression was either

mandated or warranted in the instant case.

In the instant case Brant indicated

that he did not wish to proceeé without an

attorney present. In the course of

terminating the interview one of the

Massachusetts authorities said that Kampen

- 16 -

had already given a statement to the

police. Hudepohl added that the statement

had been signed and notarized. The tape

recorcer was turned off. This interview

lasted but 5 minutes from 1657 hours to

1702 hours (Tr. 311, 313). Kampen then

said his statement was "aJl lies." Brant

requested to speak with Kampen privately

anc the request was granted. Fourteen

minutes later at 5:16 p.m. Brant and Kampen

returned and Brant immediately requested

the tape recorcer be turned on as he wished

to make a statment. Hudepohl ¢cid so and

again asked if Brant were willing to

proceed without an attorney. Brant crossed

out the "No" and wrote in "Yes",

At the outset it should he noted that

there is no evidence of any coercion,

threats or promises; there was no

suggestion hv the authorities that Brant

- 17 -

should talk to Kampdéen; and the police did

not say anything when Brant voJuntarily

returned from his private conversation with

Kampen.

Even though the officers subjective

hope was that in permitting Brant to talk

to Kampen he would change his mind, this

factor is not sufficient to render the

police conduct illegal. Rhode Island v.

Innis established an objective test.

Innis at 1690. Here the officer's true

statement did not elicit an incriminating

response from Brant. It elicited only a

statement from Kampen, "its lies".

It is totally unreasonable to extend

the Innis definition of interrogation to

hold improper the police's assent to

Brant's request to speak to Kampen_/

1/there is nothing in the record to

support an inference that Kamper was in any

sense operating as an agent of the police.

- 18 -

The incriminating response followed the

conversation with Kampen without any

conduct by the police except to again ask

Brant if he wished to proceed without an

attorney after he had said he wanted to

make a statement.

It is submitted that Innis Cid not

establish a per se rule that anv statement

or conduct on the part of the police

constitutes continued interrogation in

violation of rights under Miranda. Rather,

it must be words or action "the police

should know are reasonably likely to elicit

en incriminating response" ané@ "[filt must

alse be established that a suspect's

incriminating response was the product...”

of those words or actions. Innis, at 1689,

1691.

Even if the statement at issue,

truthfully appraising a suspect of his

- 19 -

situation constitutes imoermissible

conduct, the Court below failed to apply

the second prong of the test, for the

officer's statement in fact did not elicit

an incriminating response. That response

followed Kampen's spontaneous statement,

Brant's request for a private conversation,

ane fourteen minutes of private

conversation. The incriminating response

was the product of these intervening

circumstances.

The argument that it would not have

occurred "but for" the police officer's

statement qoes too far. Such an analysis

woule render inadmissable a statement if

Brant had requested and been vermitted to

telephone a third party and then made a

statement. The analysis of Wong Sun v.

United States, 371 U.S. 471 (1963) is more

aptiv applied to the instant situation.

- 20 -

“whether, granting estahlishment

of the primary illegality, the

evidence to which instant

objection is made has heen come at

by exploitation of that illegality

or instead by means sufficiently

distinauishable to be puraed of

the primary taint."

Id. at 488.

Here, assuming the police officer's

statement constitutes an illegality there

was no exploitation, the spontaneous

statement by Kampen ane the self-initiated

conversation intervened. The incriminating

response was the product of the

conversation, not the wores or action of

the police. Therefore it is submitted that

the ruling below failed€ to properly applv

the two-prong test of Innis anée has greatliv

expanded Innis to establish a ver se rule

requiring supression if the police engage

in any activity which they hope wil] result

in a susvect's changing his mind. This

absolutistic approach jis at odds with this

- 271 =

Court's decision in North Carolina v.

Butler U.S. » 99 S. Ct. 1755 (1979),

which eschews a per se approach, and

operates to distort this Court's decision

in Innis.

This approach also totally dismisses

the uneouivocal]l wordes of this Court in

Michigan v. Moseley, 423 U.S. 96 (1975),

wherein the court concluded that “the

admissibility of statements obtained after

the person in custody has decifeed to remain

silent depends under Miranda on whether

his' right to cut off auestioning' was

‘scrupulously honored.' The Court below

has now extended this "critical safequaré",

the right to cut off questioning, to

include the right not to be granted that

which the suspect requests. Such a

paternalistic rule has heen rejected by

this court. Farretta v. California, 422

—)

U.S. 806 1975), See Michigan v. Moseley,

supra at 109 (White, J. concurring). It is

respectfully submitted that although the

Innis Gecision is relatively recent,

clarification of that decision is of urgent

importance to law enforcement authorities.

III. THE RULE OF RHODE ISLAND V. INNIS

SHOULD NOT BE ACCORDED RETROACTIVE

APPLICATION TO TRIALS CONCLUDED

PRIOR TO THE DATE OF THAT DECISION.

The defendants were foune auilty after:

trial by a jurv on September 27, 1978. The

judgment was affirmed by the Appeals Court

on October 31, 1979. The Cecision of this

Court in Rhode Island v. Innis was rendereé

on May 12, 1980. On further appellate

review, the Supreme Judcicia] Court heard

argument on April 8, 1980 and reversed the

conviction on June 18, 1980. The Supreme

Judicial Court without Ciscussion of the

retroactivity problem applied the Innis

a.

decision to reverse the judgment previously

affirmed by the Appeals Court.

In Innis this Court for the first time

gave constitutional definition to the term

‘interrogation’, a definition which goes

far beyond the tracitional notion that to

interrogate means simply ance solely the

process of questioning or questions

propounded bv police. Not only in Miranda

but in subsequent cases had interrogation

been discussed in the context of

‘auestioning.' See Michigan v. Mosely, 423

U.S. 96 /1979).

Such a new standard governing

in-custody interrogation should not, for

the same reasons applied to the seminal

case of Miranda v. Arizona, supra, he

applied to trials concluded prior to the

Aate of the decision. In Johnson v. New

Jersev, 384 U.S. 739 (1966), it was held

= =

that the exclusionary rule relating to

custodial] interrogation established in

Miranda would be available only to persons

whose trials had commencee after the date

of that decision. Johnson at 733. It is

submitted that the new procedural

Aefinition of interrogation and the

exclusionary rule which flows from such a

definition should in the name of

consistency be accorded no wider

application than the effect accorded

Miranda.

It is of utmost urgency that the

question of prospective or retroactive

application he Cecided voromptly. As the

instant case so aptly illustrates, the

expanded definition of interrogation now

renders illegal a practice properly held to

he legal by both the trial court and the

Appeals Court. It constitutes an

» 36 =

unnecessary disservice to law enforcement

officers, operating in qood faith, to hold

retroactive a decision so extending the

concept of interrogation beyond its

ordinary or dictionary meaning.

Moreover, it is clear, without

exaggeration, that retroactive application

will have an extremely substantial impact

on law enforcement and the criminal justice

system itself. {fn addition to

Massachusetts, the arnpellate courts of at

least four other states2/have alreadcy

applied the Innis decisior.

2/state v. Durand, Neb. _—_, ~2?7 CrL.

2326 (6/10/80); State v. Jones, La. ___

27 CrL. 2342 (6/23/80); People v.

Bodner, N.Y. S. 20 (App. Div.) __, 27

CrL. 2414 (7/10/80); State v. Wiberg

Minn. , 27 CrL. 2374 (7/3/80).

Conclusion,

For the reasons stated above the

Commonwealth submits that a writ of

certiorari should be granted,

Respectfully submitted,

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

BARBARA A.H. SMITH

Assistant Attorney Genera]

Chief, Criminal Appellate

Division

One Ashburton Place

Boston, MA 02108

(617) 727-7240

la

Mass. Adv. Sh. (1980) APPENDIX A. 1473

Commonwealth vo. Brant.

COMMONWEALTH US, JEFFREY A. BRANT.

Norfolk. April 8, 1980. — June 18, 1980.

Present: Hennessey, C.J., Quauco, Winns, & Baaucne, JJ.

Evidence, Admissions and confessions. Constitutional Law, Admissions

and confessions, Waiver of constitutional rights, Assistance of counsel.

Waiver. Practice, Criminal, Instructions to jury, Comment by prose-

cutor,

INDICTMENT found and returned in the Superior Court on

February 27, 1978.

A motion to suppress was heard by Young, J., and the

case was tried before Linscott, J.

After review by the Appeals Court, the Supreme Judicial

Court granted leave to obtain further appellate review.

Thomas P. McCusker, Jr., for the defendant.

Charles J. Hely, Assistant District Attorney (Gerald M.

Kirby, Assistant District Attorney, with him) for the Com-

monwealth.

HENNEsSEY, C.J. This is an appeal by the defendant

Brant under G.L. c. 278, § 33A-33G, from his conviction

for armed robbery while masked. Prior to trial Brant filed a

motion to suppress statements. After a hearing the motion

was denied in part and Brant filed his exception. The case

was tried before a jury, Brant was found guilty, and the

trial judge imposed a sentence of not less than eighteen years

nor more than thirty years at the Massachusetts Correction-

al Institution at Walpole. Brant claimed an appeal, assert-

ing as errors the denial of his motion to suppress an inculpa-

tory statement given by him to authorities and the allowing

of a certain closing argument to the jury by the prosecutor

involving the defendant’s right to remain silent. The Ap-

1474 2a Mass. Adv. Sh. (1980)

Commonwealth o. Brant.

peals Court, with one judge dissenting, concluded that

there was no error and that the judgment should be af-

firmed. Mass. App. Ct. (1979).* We conclude that

there was error in the motion judge’s denial! of the motion

to suppress Brant’s statement and that the judgment of con-

viction must be reversed. In reaching this result we observe

that neither the motion judge nor the Appeals Court had the

benefit of Rhode Islandv. Innis, U.S. — (1980), upon

which we rely in part in this opinion, and which, to say the

least, brings new shades of meaning to the issues raised in

this case.

We summarize the facts as found by the motion judge

and from our own reading of the trial transcript. On the

night of December 28, 1977, a food store in Norwood, Mas-

sachusetts, was robbed by two masked men, one of whom

carried a rifle or a sawed-off shotgun. A woman clerk was

shot and seriously wounded by one of the robbers, who then

escaped. Brant and one Kampen were arrested in Titus-

ville, Florida, on February 4, 1978, after a high-speed auto-

mobile chase which involved the exchange of gunfire.

Kampen was booked at 9:30 a.m. and Brant, who had elud-

ed his pursuers somewhat longer, was booked at 2:10 p.m.

During the booking procedures, each was informed of his

Miranda rights and each was specifically asked whether he

wished to call the public defender. Kampen said only that

he would see the public defender in court that morning,

while Brant requested and was permitted to call the public

defender.

On Sunday, February 5, 1978, both Kampen and Brant

were brought into court for a proceeding which, the parties

stipulated, involved the setting of bail and a probable cause

hearing on certain Florida charges. The Florida public de-

fender appeared and represented both defendants.

"Mass. App. Ct. Adv. Sh. (1979) 2124.

‘It will be noted that the trial was held before a different judge from

the one who ruled upon the motion to suppress.

b48 U.S.L.W. 4506 (May 12, 1980).

Mass. Adv. Sh. (1980) 3a 1475

Commonwealth ov. Brant.

Following this hearing Kampen and Brant were held in

custody at the Brevard County jail, one of a complex of

byildings in the county seat, which included the sheriff's of-

fice and, across the street, the courthouse. Kampen and

Brant were held in separate cell blocks and could not con-

verse with each other. Each of the defendants was told by

other prisoners that, if they were convicted and sent to one

of Florida’s State prisons, they would be subject to homosex-

ual assaults.

On February 13, 1978, the Florida public defenders’ of-

fice was relieved by court order from representing Kampen

and Brant due to a conflict of interest between these defend-

ants and a juvenile apprehended with them. On that same

day, Assistant District Attorney Tiernan of Norfolk County,

Massachusetts, telephoned Deputy Sheriff Hudepohl of

Florida and requested that he seek to interview Kampen

and Brant concerning the incident which is the subject of

the present indictments.

Hudepohl arrived at the jail sometime shortly before

10 a.m. and asked to have Kampen and Brant brought to

him. Kampen arrived first and was taken by Hudepohl into

a small interview room adjacent to the main control room of

the jail. He first informed Kampen that he wished to inter-

view him concerning Massachusetts offenses. Hudepohl al-

so told him that Tiernan had called and said that he wanted

Kampen’s side of the story. Hudepohl cautioned Kampen

that he would not inquire about the Florida charges and

carefully read him his Miranda rights, making sure after

each question that Kampen understood. Hudepohl then

asked Kampen, “Do you wish to talk with me now without

a lawyer?” Kampen said, “Yes.” Kampen proceeded to

give Hudepohl an inculpatory statement which, when tran-

scribed, covered six pages.

The motion judge found that, at the time Kampen first

spoke with Hudepohl, he was calm and collected and quite

familiar with his Miranda rights, not only from his Florida

experiences, but from earlier occasions on which those rights

had been read to him. The judge also found that Kampen’s

1476 4a Mass. Adv. Sh. (1980)

Commonwealth v. Brant.

“will was not overborne by the circumstances of his in-

carceration nor his concern over the results of conviction in

Florida; and . . . that [Kampen] knowingly, intelligently

and voluntarily waived his Fifth Amendment rights guaran-

teed under Miranda and its progeny and his Sixth Amend-

ment right to have his attorney present.”

Upon completion of the interview Hudepohl and Kamp-

en left the interview room and Kampen was permitted to

speak briefly with Brant in the main control room. Hude-

pohl next informed Tiernan of Kampen’s incriminating

statement, and Tiernan promptly secured complaints

against Kampen in the District Court of Norfolk for armed

robbery, while masked, and assault with intent to murder.

Tiernan and Detectives Fruci and Casey then left for Flori-

da.

On the morning of February 15, 1978, Hudepohl returned

to the Brevard County jail with Kampen’s earlier taped

statement, now transcribed. Kampen, still appearing calm

and cooperative, signed the six page statement before a

notary. Later that morning, Kampen and Brant were

taken to the courthouse where new counsel were appointed

to represent each of them, and they were arraigned on the

Florida charges. Assistant District Attorney Tiernan and

Officers Casey, Fruci and Hudepohl were in court during

the arraignment of the defendants and knew that they were

represented by counsel, Attorney Norwich having been ap-

pointed for Kampen and Attorney Cossaboom having been

appointed for Brant. Further, the Massachusetts authorities

and Hudepohl, by that time, had formed the intention to

interrogate Brant later that day.

After their arraignment, Kampen and Brant were re-

turned to jail. Later that afternoon they were brought into

the jail interview room where Tiernan, Casey, Fruci and

Hudepohl had assembled. At 4:57 p.m. Hudepohl turned

on his tape recorder and began to read Brant his rights from

a document entitled, “Brevard County Sheriff’s Depart-

ment Interrogation Preamble.” This form contained the

printed question, “Are you willing to proceed without an at-

Mass. Adv. Sh. (1980) 5a 1477

Commonwealth o. Brant.

torney being present to represent you?” This question was

followed by a blank space for the answer of the person being

interviewed. When Hudepohl read this question to Brant,

Brant replied, “No.” Hudepohl wrote this response on the

form and confirmed that Brant refused to answer any fur-

ther questions without his counsel being present. One of

the Massachusetts authorities then interjected the fact that

Kampen had already made a statement to the police, and

Hudepohl confirmed to Brant that this was so and that

Kampen’s statement had already been signed and notarized.

The motion judge found that the authorities, in using these

words and conduct, “hoped and expected” that Brant

would make a further statement. Hudepohl then turned off

the tape recorder.

Kampen remarked that his statement was “all lies,” and

Brant asked for a moment to speak with Kampen privately.

He was afforded this privilege. Fourteen minutes after the

interrogation had ceased, Brant and Kampen returned to

the interview room and Brant asked that the tape recorder

be turned back on as he wished to make a statement. Hude-

pohl complied, directing Brant’s attention to the interroga-

tion preamble, specifically the question of Brant’s willing-

ness to proceed without an attorney being present to repre-

sent him. Brant himself crossed out the response, “No,”

wrote in, “Yes,” and signed his name, indicating his will-

ingness to give a statement without his attorney being pres-

ent. Brant indicated that he had changed his mind about

giving a statement of his own free will, without any threats

or promises.

Although Brant stated he wished to make a statement,

fir'rther proceedings followed a question and answer format,

Hudepohl asking Brant certain questions and Brant re-

sponding. At one point Kampen volunteered a response

when Brant hesitated, or seemed uncertain, and one of the

Massachusetts authorities began to follow up Kampen’s re-

sponse. Hudepohl then specifically reminded Kampen of

his Miranda rights, and asked him expressly, “In light of all

that, do you still wish to talk to us without having an attor-

1478 6a Mass. Adv. Sh. (1980)

Commonwealth v. Brant.

ney here, or your attorney of record here in Brevard Coun-

ty?” Kampen responded, “Yeah.” Thereafter both Brant

and Kampen were asked further questions and responded

thereto. Both Kampen’s and Brant’s statements were in-

criminating, the statements virtually amounting to a confes-

sion to the Massachusetts offenses.

On Friday morning, February 17, 1978, the statements

made on the 15th having been transcribed, Kampen and

Brant were given an opportunity to read the twenty page

transcription of their joint statement. Both defendants read

the joint statement, initialed each page, and then executed

an affidavit stating that the facts set forth therein were

“true and correct.” Later that day, Kampen and Brant

were returned to court where, on the advice of their ap-

pointed couasel, who were present, they each waived extra-

dition to Massachusetts, agreeing voluntarily to return and

face the Massachusetts charges.

Kampen and Brant were delivered into the custody of the

Massachusetts authorities on the morning of February 18,

1978. Brant seemed happy to be returning to Massachu-

setts. Both defendants were observed to be in complete

control of their faculties. Handcuffed, each defendant was

placed in the back seat of an automobile where they were

joined by Detective Casey. Detective Fruci and District At-

torney Tiernan sat in the front seat, Tiernan driving. On

the way to the airport, there was casual conversation among

the three individuals in the back seat which included fur-

ther inculpatory statements by Kampen and Brant.

The motion judge excluded the affidavits executed by the

defendants, as well as a portion of the twenty page tran-

scription of their joint statement. He also excluded from

evidence the admissions made by the defendants while rid-

ing to the airport in the automobile. He denied Brant’s mo-

tion to suppress the entire twenty page statement, and most

of it was received in evidence. The judge stated that each of

the various incriminatory statements made by the defend-

ants was made “intelligently, knowingly and voluntarily,

Mass. Adv. Sh. (1980) 7a 1479

Commonwealth vo. Brant.

free of coercion and without the will of either defendant

being overborne in any respect.”

1. This case is a close one, but nevertheless we think re-

versal of the defendant’s conviction is required. The de-

fendant first argues that his Sixth and Fourteenth Amend-

ment right to counsel was violated, in that the authorities

deliberately contrived to elicit incriminating information

from him in the absence of his counsel. See Massiah v.

United States, 377 U.S. 201, 206 (1964). While it is clear

that the police and prosecutor here arranged a questioning

session with the defendant, apparently without notifying

his Florida-appointed attorney, we think we need not con-

sider this aspect further, because consideration of the Mi-

randa Fifth Amendment principle is dispositive.

Once warnings have been given (as they were here) the

subsequent procedure is clear: If the individual states that

he wants an attorney, the interrogation must cease until] an

attorney is present. Miranda v. Arizona, 384 U.S. 436, 474

(1966). The rule is that the defendant’s decision to cut off

questioning must be “scrupulously honored.” Miranda,

supra at 474, 479. The defendant’s rights were not so

honored here.

After the defendant stated his decision to remain silent

and that decision had been noted in writing, one of the Mas-

sachusetts authorities interjected the fact that Kampen had

already made a statement to the police. A Florida officer

confirmed that this was so and that Kampen’s statement

had already been signed and notarized. The defendant

then conferred privately with Kampen for fourteen minutes.

He then stated his willingness to proceed without an at-

torney present to represent him, and he made a written

notation confirming that fact. Then the defendant made

his inculpatory statements.

We first consider whether Brant was subjected to “inter-

rogation,” within the meaning of Miranda, after he had in-

voked his privilege to remain silent. We conclude that he

was interrogated. Not all statements obtained by the police

after a person has been taken into custody are to be consid-

1480 8a Mass. Adv. Sh. (1980)

Commonwealth v. Brant.

ered the product of interrogation. “Any statement given

freely and voluntarily without any compelling influences is,

of cou °, admissible in evidence.” Miranda, supra at 478.

A “compelling influence” is not necessarily in the form of ex-

press questions. The inquiry here is whether the authorities

used any words or actions, other than those normally at-

tendant to arrest and custody, that they should have known

were reasonably likely to elicit an incriminatory response

from the suspect. Rhode Island v. Innis, Ua

(1980).° The test is an objective one. Thus where, as in this

case, the motion judge found that the authorities “hoped

and expected” that the defendant would change his mind

and make a statement as a result of the authorities’ further

statements and their permitting the private interview be-

tween Brant and Kampen, the intent of the authorities is

not conclusive. Nevertheless, their intent bears on whether

they should have known that their words and actions were

likely to evoke an incriminating response. Since the motion

judge found, as warranted by evidence produced at the

hearing on the motion to suppress, that their words and con-

duct were designed to elicit an incriminating response from

Brant, it is indicative that the practice was one which they

should have known was reasonably likely to have the effect.

Id. at n.7.4 We conclude that the defendant was “in-

terrogated” by the authorities in violation of his undisputed

rights under Miranda to remain silent.

The Commonwealth here relies upon Michigan v. Mosley,

423 U.S. 96 (1975), wherein the Supreme Court held that,

in the circumstances of that case, a second interrogation of

the defendant, although made after he had invoked his right

to cut off questioning, nevertheless resulted in admissible in-

culpatory evidence against the defendant. In Common-

wealth v. Taylor, Mass. , - (1978),¢ we sum-.

marized the significant holdings of Mosley as follows: “In

©48 U.S.L.W. 4506, 4509 (May 12, 1980).

448 U.S.L.W. at 4509 n.7.

®Mass. Adv. Sh. (1978) 394, 402-403.

Mass. Adv. Sh. (1980) 9a 148]

Commonwealth v. Brant.

Mosley, the Supreme Court explored the question whether

and in what circumstances the prosecution is prohibited

from using a defendant's in-custody statement obtained

after the right to remain silent has been invoked. The

Court viewed resolution of the question as turning almost

entirely on an interpretation of the Miranda language

quoted above. It considered the ‘critical safeguard’ identi-

fied in the Miranda passage to be a person’s ‘right to cut off

questioning.’ Michigan v. Mosley, supra at 103. “Through

the exercise of his option to terminate questioning he can

control the time at which questioning occurs, the subjects

discussed, and the duration of the interrogation. The re-

quirement that law enforcement authorities must respect a

person’s exercise of that option counteracts the coercive

pressures of the custodial setting.” Jd. at 103-104. The

Court then concluded, as correctly noted by the judge in the

present case, that Miranda mandated that the admissibility

of any statements obtained after the person in custody has

decided to remain silent depended on whether the person's

*“right to cut off questioning” was “scrupulously honored.” *

Id. at 104. See Commonwealth v. Dustin, 373 Mass. 612,

616 (1977) [cert. denied, 435 U.S. 943 (1978)]; United States

v. Olof, 527 F.2d 752, 754 (9th Cir. 1975). In concluding

that the defendant's right to cut off questioning was scrupu-

lously honored, and, consequently, that his Miranda rights

had not been violated, the Court in Mosley stressed that

after the defendant initially stated he wished to remain

silent, the police had immediately ceased interrogation.

Questioning was resumed ‘only after the passage of a signifi-

cant period of time and the provision of a fresh set of warn-

ings,’ and the second interrogation was restricted ‘to a crime

that had not been a subject of the earlier interrogation.’ /d.

at 106.”

Mosley is clearly distinguishable from this case. Interro-

gation here was not cut off when the defendant asserted his

rights. On the contrary, statements were made by the au-

thorities which were intended to overcome the defendant’s

resistance to interrogation, and even the respite of fourteen

1482 10a Mass. Adv. Sh. (1980)

Commonwealth v. Brant.

minutes, unlike the similar interval in Mosley, and the per-

mitted discussion with Kampen were aimed at the same

purpose. Rhode Island v. Innis, supra, is also distinguished

from this case, in that the Supreme Court there held that a

conversation between police officers, although it was over-

heard by the defendant in that case and may have had a

“subtle compulsion” which caused him to make admissions

after he had asserted his right to remain silent, was not “in-

terrogation” within the meaning of Miranda. Id. at

Logic does not permit such a result in the instant case,

where the authorities achieved the result (admissions by the

defendant) which they hoped and intended from their con-

duct and words.

The result we reach here is supported by our reasoning in

two recent cases. Commonwealth v. Watkins, Mass.

(1978),® and Commonwealth v. Taylor, Mass.

(1978). In Watkins, the suspect asked for an attorney

while being questioned in a Kentucky police station by Mas-

sachusetts officers. The questioning continued for some

moments but stopped when the suspect said a second time

that he wanted an attorney. The suspect was allowed to

call an attorney, but instead called and spoke to his mother

and sister. Thereafter he said he was ready to make a state-

ment, and a further incriminating statement was taken.

Although the statement before Watkins’ telephone call was

suppressed, this court affirmed the admissibility of the state-

ments after the call because “the defendant’s spontaneous

declaration of his desire to make a further statement consti-

tuted an implied, if not an express, waiver of his previously

asserted desire to speak with counsel... .” Id. at .!

The facts in the Taylor case are readily distinguishable

because the police initiated the defendant’s admissions by

showing him a wanted poster and telling him his finger- |

£48 U.S.L.W. at 4509.

8 Mass. Adv. Sh. (1978) 1646.

bMass. Adv. Sh. (1978) 394.

‘Mass. Adv. Sh. (1978) at 1663.

Mass. Adv. Sh. (1980) lla 1483

Commonwealth o. Brant.

prints were found at one crime scene, in an apparent effort

to get a statement from him only five minutes after he told

the police in his attorney’s presence that he did not wish to

say anything. Id. at - . The instant case is closer in

facts to Taylor than to Watkins. Although Brant himself

sought the interview with Kampen, that is not significant,

for the impetus for this request clearly came from the police

statements immediately after Brant asserted his right to re-

main silent.

Implied in the motion judge’s findings of fact, and in the

Commonwealth’s argument, is the premise that Brant may

well have been motivated to change his mind and to make

his inculpatory statements by his desire to return to Massa-

chusetts for prosecution and thus avoid Florida prosecution

and the danger of sexual assaults in prison. We assume such

reasoning on his part was possible, but we also have in mind

that the burden was on the Commonwealth to establish that

the defendant knowingly and intelligently waived his privi-

lege against self-incrimination. Miranda, supra at 475.

Viewed in light of this burden, it is clear that suggestions of

motivations unrelated to the authorities’ statements rest in

conjecture. Rather we have a case in which the defendant’s

rights were not scrupulously honored, as required by law. It

is also a case where the “cat-out-of-the-bag” aspect became

acutely significant when Brant, in the face of his assertion

that he wanted his attorney present — an attorney who un-

doubtedly could have explained the evidentiary significance

of Kampen’s statement as it related to Brant —, was instead

subtly turned toward an inculpatory statement.

Contrary to the Commonwealth’s argument, nothing

that we have said has the effect of establishing a per se pro-

scription on further questioning after a defendant has once

asserted his right to remain silent. Nor, in the circumstances

of this case, have we impugned the results or the reasoning

in those cases principally relied upon here by the Common-

wealth, viz: Mosley, supra and Watkins, supra.

1Mass. Adv. Sh. (1978) at 396-397.

1484 12a Mass. Adv. Sh. (1980)

Commonwealth v. Brant.

2. We discuss the second assignment of error urged by

Brant against the possibility that the issue may arise at any

new trial of this indictment. Brant asserts that the trial

judge erred by allowing the assistant district attorney to

argue tc the jury that Brant had made no response when his

codefendant had made certain statements to law enforce-

ment authorities, and by instructing the jury that they could

consider that failure to be an admission on the part of Brant.

The Commonwealth argues that Brant had waived his right

to remain silent and consequently could not rely on that

right. Further, the Commonwealth argues that, if there

was error, it was harmless, in view of Brant’s detailed ad-

missions in the twenty page statement in which he and

Kampen joined. Assuming that the Commonwealth’s argu-

ments would be correct if the twenty page statement had

been admitted, it is also true that when the statement is ex-

cluded at any new trial, the silences of Brant during

Kampen’s recitals will not be admissible evidence or a prop-

er subject of argument. Doyle v. Ohio, 426 U.S. 610

(1976). Commonwealth v. Grieco, 5 Mass. App. Ct. 350

(1977). Commonwealth v. Bennett, 2 Mass. App. Ct. 575,

580 (1974).

3. The twenty page statement of Brant, and all evidence

of admissions by him at the Florida interview, should have

been excluded as obtained in violation of his rights under

the Fifth Amendment of the Constitution of the United

States. Consequently the judgment is reversed, the verdict

set aside and the case remanded to the Superior Court for a

new trial.

So ordered.

APPENDIX B. l3a

MASS. APP. CT. ADV. SH.

COMMONWEALTH vs. JEFFREY A. BRANT.

Norfolk. May 15, 1979. - October 31], 1979.

Present: Keville, Brown & Dreben, JJ.

Evidence, Acmissions and confessions.

Constitutional] Law, Admissions and

confessions, Waiver of constitutional

rights, assistance of counse]. Waiver.

Practice, Criminal, Charge to jury, Comment

by prosecutor.

Indictment found and returned in the

Suprerior Court on February 27, 1976.

A motion to suppress was heard by

Young, J., anc the case was tried hefore

Linscott, J.

Thomas P. McCusker, Jr., for the

Cefendant. Charles J. Helv, Assistant

District Attorney, for the Commonwealth.

KEVILLE, J. On December 28, 1977, a

clerk employed in a market Jocated jin

Norwood was hele up by. two armec men who

were maskec, In the course of the robbery

the clerk was shot and seriously woundeée.

The robbers fled and were not then

apprehenced. On February 4, 1978, the

Gefendant, Jeffrey A. Brant, and Neil

l4a

Kampen, Jr. were arrested in Titusville

Florida, after a high speed chase in which

shots were exchanged with police.

Brant appeals pursuant to G.L. c. 278,

§§ 33A-33G, from his conviction after a

jury trial on an indictment arising out of

the Norwood incident charging him with

armed robbery while masked.+/Brant argues

two assignments of error on appeal.

He asserts error in the denial of his

pretrial motion to suppress an

incriminating statement made by him to

police in Florida following his arrest

which virtually amounted to a confession to

the Massachusetts indictment. He also

contends that the trial judge erred in

permitting the prosecutor to argue to the

jury that Brant had made no response to

1/yis companion, Kampen, pleaded auilty

following his inéeictment for the same

offense.

15a

certain statements mace bv Kampen to the

authorities and that the judge erred in

instructing che jury that they would

consider that failure to be an admission by

Brant.

1. Motion to Suppress.

Whether the judge erred in denying

Brant's motion to suppress turns on the

resolution of two questions: whether the

police scrupulously honored Brant's right

to cut off questioning after he Ceclined to

be questioned without his lawyer heing

present, and whether his subsequent waiver

of his right to remain silent was

voluntarily and intelligently given. While

the answers to these auestions, as the

motion judge acknowledged, are not free of

difficulty, we conclude that there was no

error.

In reviewing the iudge's findings of

fact and rulings of law on the motion to

l6a

suppress, we accept his resolution of

conflicting testimony. His subsidiary

findings are not to be disturbed if

warrantec hy the evidence. Commonwealth v.

Watkins, 375 Mass. , (1978).2/

However, ultimate findings and conclusions

of law, particularly those of

constitutional dimension, are subject to

independent review on appeal. Commonwealth

v. Mahnke, 368 Mass. 662, 667 (1975), cert.

denied, 425 U.S. 959 (1976).

We summarize pertinent facts drawn from

the iudge's findings which are supported by

the evidence taken at the hearing on the

motion to suppress. On February 5, the Cay

following their arrest, Brant and Kampen

were brought to court for a probable cause

hearing and to fix bail on certain Florida

charges. They were represented hy a

@/Mass. Adv. Sh. (1978) 1646, 1651

17a

Florida public Gefender. They were lodged

in a county jail in separate cel] blocks

and could not communicate with each other.

On February 13 a court order relieved

the public Cefender from representing Brant

and Kampen. 2/on that day an assistant

Gistrict attorney of Norfolk County,

Tiernan, requestee hy phone of a Florida

Ceputy sheriff, Hudepohl (who appears to

have been in charge of these prisoners),

that Hudepohl interview Brant ane Kampen

concerning the robbery in Norwood. On

Fehruary J]4 Hudepohl interviewed Kampen and

informed him of the call from

Massachusetts. He stated that he wished to

obtain Kampen's side of the storv and that

he would not inquire about the Florida

2/There appeared to he a conflict of

interest between these defendants ane a

juvenile who was apprehended with them and

represented by the same attorney.

18a

charges. Hudepohl carefully informed

Kampen of his Miranda rights and

ascertained that he understood them.

Kampen replied "Yes" to Hudepohl's question

"Do you wish to talk with me now without a

Jawyer?" Kampen then gave the Sheriff an

inculpatory statement which was recorded on

tape and on the following day was

transcribed, signed by Kampen and

notarized. At the close of the invterview

Kampen was permitted to talk briefly with

Brant.2/

Kampen's inculpatory statement was

communicated to Tiernan who promptly

secured complaints against him in

3/omitted from the judge's findings but

inclueed in the transcript of the motion te

suppress was the ineication that, prior to

his interrogation by the authorities, Brant

had already discussed with Kampen the

possibility of making a "deal" to return to

Massachusetts ané@ thus avoid the prospect

of incarceration in Florida.

19a

Massachusetts for armed robbery while

masked and for assault with intent to

murder and then left for Florida with two

police officers. The judge found that

Kampen knowingly, intelligently and

voluntarily waived his Fifth Amendment

rights guaranteed under Miranda v. Arizona,

384 U.S. 436 (1966) and his Sixth Amendment

right to have his attorney presen”.

On February 15 Kampen ard Brant, new

and separate counsel having been appointed

to represent each of them, were arraianed

on the Florida charges.2/The

4/tThe record on appeal is bare as to

what, if any a@vice was given to Brant by

his court appointed counsel save for the

fact that on February 17 Brant was returned

to court where, on the advice of counsel,

who was present, he waived extradition

proceedings and agreed voluntarily to

return here to face the Massachusetts

charges. The motion judge found that there

was no suggestion that Brant was prevent

from communicating with his attorney at any

time.

20a

Massachusetts officials and Hucepohl were

present in court at the arraignment and

knew that Brant anc Kampen were represented

by counsel. They intended to interrogate

Brant later that day. That afternoon Brant

anc Kampen were brought to an interview

room in the jail, where the Massachusetts

officials and Hudepohl had gathered,

Hudepohl turned on a tape recorder and

began to read to Brant his rights from a

document entitled "Brevard County Sheriff's

Department Interrogation Preamble".

Included therein was the question, "Are you

willing to proceed without an attorney

being present to represent you?" In the

Gocument this question is followed by a

blank space for the response of the person

being interviewed. When Hudepohl read the

question to Brant, Brant replied "No".

— then wrote that response on the

2la

document .2/One of the Massachusetts

57 BREVARD COUNTY SHERIFF'S

DEPARTMENT INTERROGATION PREAMBLE

I, am aware

that I am (under arrest) or (suspect) (for

Armed Robbery while Masked and attempted

murcer). 1 have been advised anc have had

explained to me that prior to answering any

questions or making anv statement either

oral or written that I am entitled to be

representec hy legal counse] ‘lawver). I

have also heen advised that if I am without

funes with which to secure counsel, the

State of Florida will furnish me with an

attorney. It has also been explained to me

that any statement I make or question that

I answer must be free and voluntary,

without threat of punishment or promise of

reward. I am aware that I have the right

to remain silent and not bear witness

against myself as guaranteed by the

Constitution of the United States of

America. It has also been explained to me

that any statement mace by me, either oral

or written, can ance will be used as

evidence against me in Court.

It has also been explained to me that I mav

have an attorney present to represent me

now or at any time during this interview

and interrogation.

I understand that this interview and

interrogation can and will] be terminated at

any time upon my request.

QO. Are vou willing to proceee without an

attorney being present to represent you?

A.

Signed

22a

officials then mentioned the fact that

Kampen had already given a statement to the

police. Hudcepohl stated that this was so

and that Kampen's statement had been signed

and notarized. Hudepohl then turned off

the tape recorder. At that juncture,

Kampen remarked that his statement was “all

lies." Brant then requested a moment to

speak with Kampen privately. The request

was granted .&/

Fourteen minutes Jater Brant and Kampen

returned to the interview room. Brant

asked that the tape recorder be turned hack

on as he wished to make a statement.

Hudepohl complied with his request and

again directed Brant's attention to the

interrogation preamble and specifically to

6/tThe judge found that in permitting

Brant to speak with Kampen the police

"hoped and expectec that Brant wonld change

his mind ané@ make a statement."

23a

the question of Brant's willingness to

proceed without an attorney being present

to represent him. Brant himself crossed

out the earlier response "No", wrote in

"Yes", and signed his name indicating his

willingness to make a statement without his

attorney heing present.

There followee questions by Hudepoh!

and answers by Brant. At some point,

Kampen volunteered a response to a question

and one of the Massachusetts officials

joined the dialogue. At this point,

Hudepohl reminded Kampen of his Miranda

rights, ascertained that he understood them

and obtained an affirmative answer when he

asked Kampen whether he still wished to

talk’ without having his attorney present.

Other questions to Brant and Kampen

followed with their responses, the latter

virtual)y amounting to confessions to the

24a

Massachusetts offenses. _/

Contrary to Brant's assertion, we

cannot say that the judge erred in his

conclusion that Brant's right to cut off

questioning was scrupulously observec when,

on February 15, having ineicated that he

did not wish to be questioned without his

attorney being present, he was informed

that Kampen had given a signed statement to

the police. The judge was not confronted

7/The judge suppressed those statements

by Kampen which had been volunteered on

February 15 prior to Hudepohl's obtaining

from him an express waiver of counsel's

presence. He also suppressed affidavits of

Kampen and Brant which had been attacheée on

February 17 to the transcription of their

joint statement made on February 15, as

well as certain statements mace by Kampen

and Brant to one of the Massachusetts

officers while en route to the airport on

February 18. He assigned as the basis for

the suppression, in each of these

instances, the Commonwealth's failure to

prove that the eefendants expressly or

implicitly waived their rights to the

assistance of counsel! prior to making the

statements and executing the affidavits.

25a

here with an evaluation of police conéeuct

such as that in Commonwealth v. Jackson,

Mass. ? (1989),2/where a suspect's

statement was induced by a Geliberate false

representation that the suspect's

girlfriend had implicated herself in the

crime, or that in Commonwealth v. Taylor,

374 Mass. ; 11978) ,f/where subtle

ane persistent police persuasion in@cuced an

incriminating statement. See United States

v. Olof, 527 F. 2¢ 752, 753 (9th Cir.

1975); Commonwealth v. Dustin, 373 Mass.

612, 615 (1977);2/united States v. Davis,

527 F. 2€ 1110, 1111 (9th Cir. 1976);

Blackmon v. Blackledge, 396 F. Supp. 796,

298-299 (W.D.N.C. 1975); United States Ex

rel. Doss v. Bensinger, 463 F. 2d 576,

b/mass. Adv. Sh. (1979) 401, 407

C/mMass. A@v. Sh. (1978) 394, 396-397

@/mass. Adv. Sh. (1977) 2302, 2396.

26a

578 (7th Cir. 1972). Compare United States

v. Barnes, 432 F. 2d 89, 91 (9th Cir.

1970); Commonwealth v. Andujar, 7 Mass.

App. Ct. ’ (1979) .£/compare also

Commonwealth v. Watkins, 375 Mass.

’ (1978) ,£/where a defendant's

statements made immediately following his

initial request for counse) were suppressed

because detectives continued to question

him until he mace a second request to see a

lawyer.

The judge found that, following Brant's

response that he did not wish to proceed

without his attorney being present, the

police did not further solicit him or applv

coercion or pressure. While, as the judge

found, Brant's questioners "hopved and

€/Mass. App. Ct. Adv. Sh. (1979) 1245,

1252.

f/mass. Adv. Sh. (1978) 1646, 1663.

27a

expectec" that he would make a statement,

no questioning of him followed the factual

Cisclosure that Kampen had given the police

a statement unti] Brant, having at his

request heen given an opportunity to confer

with his companion, changed his mine and

initiated the resumption of interrogation.

Brant was then facing the prospect of

criminal charges against him in two

jurisdictions. It was obviously to his

advantage, before responding to questions

in regare to the Massachusetts charges, to

know that his companion had given the

police a statement ané@ whether he had been

implicated therein. Where an accomplice

has in fact made an inculpatory statement

to the police it is permissible and, as in

this ineterce, it may he informative rather

than coercive for the police tc make that

fact known to a susvnect who has inverted his

28a

right to cut off cuestioning in order that

he may make a realistic evaluation of his

position in light of the change in

circumstances. Commonwealth v. Jackson,

supra at n. 7.2/see esis ¥.

Whealon, 490 F. 2d 629, 63) (6th Cir.

1974). Compare United States v. Mearns,

443 F. Supp. 1244, 1253 (D. Del. 1978).

Contrast United States v. Crisn, 435 F. 2¢

354, 357 (7th Cir. 1970); United States v.

Priest, 409 F. ?d 491, 493 (5th Cir. 1969).

The rule based upon the Fifth Amendment

that, if a suspect indicates in any manner

at any time prior to or during questioning

that he wishes to cut off ouestioning, the

interrogation must cease (Miranda v.

Arizona, 384 U.S. 436, 473-474 [19661) Coes

not mean that cuestioning must cease

G/Mass. A@v. Sh. (1979) at 411 n. 7.

29a

forever. It permits renewal] of

interrogation in proper circumstances. The

court in Michigan v. Mosley, 423 U.S. 96,

102 (1975), observee that a "blanket

prohibition against the taking of voluntary

statements or a permanent immunity from

further interrogation, regardless of the

circumstances, would transform the Miranda

safeguards into wholly irrationa] obstacles

to legitimate police investigative activity

and deprive suspects of an opportunity to

make irformee ene intelliaent assesements

of their interests. "8/

Although Brant ané Kampen conversed for

not more than fourteen minutes hefore

interrogation was resumed, that hiatus was

8/tThe argument ageinst an absolute rule

with respect to silence has been held

applicable equally to situations involving

the right to counsel. Commonwealth v.

Watkins, 375 Mass. , (1978) (Mass.

Adv. Sh. [19781 1646, 1662).

30a

not insignificant in Jight of the facts

that the conversation had heen requested by

Brant and that he hae initiatee the

resumption of interrogation when he

Cirected Hudepoh] to turn the tape hack on

at the conclusion of their conversation.

Contrast United States v. Mearns, supra at

1253; Commonwealth v. Taylor, 374 Mass.

at a

Bearing in mine the heavy burden which

rests on the Commonwealth to Cemonstrate a

voluntary, knowing and intelligent waiver,

Hill v. Whealon, supra at 630, compare

i/

Commonwealth v. Jackson, supra at P

Commonwealth v. Dustin, 373 Mass. at

615,2/we think that the judge was right

N7Mass. Adv. Sh. (1978) at 397.

i/Mass Adv. Sh. (1979) at 407.

a/mMass. A@v. Sh. (1977) at 2306.

3la

in his conclusion that Brant's spontaneous

Geclaration of his Cesire to have the

interrogation resumee constituted an

effective waiver of his earlier declination

to responce to auestioring in the ahsence of

his attorney. Commonwealth v. Watkins, 375

/

Mass. at

2. Argument ance Charge.

Brant next argues that the prosecutor

mace what amounted to constitutionally

impermissible remarks in his closing

argument which irrepvarably pretuciced

Brant's right to a fair trial.

Specifically, the defendant alleges that

the prosecutor argued improperly in

reminding the jurors that during the course

of Brant's inculpatory statement to the

authorities on February 15, statemerts were

kK/Mass. Adv. Sh. (1978) at 1662

32a

made hy Kamnen which corrobhorateée Brant's

a@missions and which were denied by Brant.

Brant argues in essence that this allusion

to Kampen's unchallenaec statements

compromisec Brant's right to silence.

Brant further argues that the trial iudge

compounded the problem in his instructions

to the tury. The defeneant's arauments

Jack merit.

The short answer to those contentions

is that one canrot perserve what one has

alreafy waived, It is settled that

extrajucicial accusatorv statements made in

a Cefendant's presence are not admissible

as evidence aaainst him where he is under

arrest and maintains his right to silence,

Commonwealth v. Locke, 3235 Mass. 106, 115

(1956), ane as a coroljarv, that the

prosecvtor is not permittec to ajlude to

the defendart's silence, Commonwealth v.

Egan, 357 Mass. 585, 591-59? (1970);

33a

Commonwealth v. Morrison, 1 Mass. App. Ct.

632, 634 (1973). Here, however, Brant did

not maintain his right to silence.

Kampen's statements were made in the midst

of those heing mace by Brant. Brant's

"silence" occurred onlv while Kampen mace

statements which generally corrohorated

what Brant had just statec. Brant and

Kampen, in effect, made a ioint confession,

ane as such the statements were competent

evidence. Commonwealth v. Brown, 12] Mass.

69, 80 (1876). Commonwealth v. Trefethen,

157 Mass. 180, 197-198 (1892).

Commonwealth v. Lucas, 332 Mass... 594, 597

(1955). It follows that the prosecutor's

reference to Kampen's statements in no way

compromisec@ Brant's right to silence which

he had already relinguished. Contrast

Commonwealth v. Bennett, 2 Mass. App. Ct.

575, 580 (1974). Furthermore, the iuege's

34a

instruction permissibly informeée the jury

that they could, in this context, infer

from Brant's silence an admission of the

truth of Kampen's statements, which, as we

have observed, merely corrohorated what

Brant hac already said. See Commonweal) th

v. Brown, supra at 80. See also State v.

Cooley, 221 S.W. 2d 480, 485 (Mo. 1949).

Judgment affirmec.

35a

BROWN, J. (dissenting). I respectfulJlv

dissent. I believe the motion judge

misapplied the constitutional standards

to the fact fineing process from the

start .2/

It seems to me that while the judge

made passing application of the

"scrupulously honored" standard, he in fact

employed it interchangeably with "waiver"

analysis. Not only is this mode of

analysis, in my view, wrong, but it has

provided a continual source of difficulty

ane confusion in the trial courts;

conseauently, our appelJlate courts’

analyses of circumstances such as those

1/n1 though a judge's subsidiary finding

will not he dCisturbed if they are warranted

by the evidence, "{olur appellate function

requires that we make our own indeepenéeent

Getermination on the correctness of the

judge's ‘application of constitutional]

principles to the facts as found.'"

Commonwea)th v. Haas, 373 Mass. 545, 550

(1977) (Mass. Adv. Sh. [19771 2212, 217).

36a

presentec here must in the future he more

carefully definec. There is great need to

address this important auestion, providing

as much clarity as possible, hecause

Miranda v. Arizona, 384 U.S. 436 (1966),

ane Michigan v. Moslev, 423 U.S. 96, 100

(1975), stand squarely for the proposition

that even though a statement may eventually

be volunteered ,2/it is rot admissible

£/Accore, Cemmonweelth v. Dustin, 373

Mass. 612, 616 (1°77) (Mass. Acv. Sh.,

[19771 2302, 2307), cert. deniec, 435 U.S.

943 (1978). Although the facts in Dustin

are different in part from the facts here,

it is highly instructive to note the

court's concluding remarks regarding

suppressing evicence:

The result is to exclude the

defendant's statements from

evidence, even though they were

voluntarily made, even though

they beer indicia of reliabilitv, and

even though they are found not to have

heen the produce of any intentional

violation of constitutional stanéards.

‘Emphasis supplied.) Ibid.

It might be further stressee that in

Dustin, unlike here, there was ro intention

exhihitee hy the police to influence the

defenceant toc confess.

37a

if the cefendant's rights were not

scrupulouslv honoree. Therefore, the

proper sequence of inquiry must be: first,

and principally, did the police

scrupulously honor the defendant's rights?

The focus must be on the police's hehavior

anc intent, not on the concuct of the

defendant. Then, only after that question

is answered in the affirmative, shouJd we

reach the ouestion whether the Cefendant

waivec his rights. This issue is somewhat

cloudy because Commonwealth v. Taylor,

Mass. ’ - 11978) 2/employs the

scrupulously honoree standare; Commonwealth

v. Jackson, Mass. . = (1979) 2/

@/Mass. Adv. Sh. (1978) 394, 402-405.

b/mass. Adv. Sh. (1979) 401, 408-414,

38a

in fact employs that standard but alJ.so

mentions in passing the

waiver/voluntariness standard as though

hoth were on equal footing; and |)

5

Commonwealth v. Watkins, Mas

(19,8),£/reste on waiver analysis. This

court's @ecision in Commonwealth v.

Andujar, Mass. App. Ct. , 2

(1979) ,2/implies that waiver is the

na/

"crucia] issue.

C/Mass. Adv. Sh. (1978) 1646, 1663.

d/mMass. App. Ct. Adv. Sh. (1979) 1245,

1254-1255.

3/Nevertheless, Taylor, Jackson, Watkins

and Andujar, in sum, demonstrate that while

police may resume interrogating a suspect

after he has at an earlier time asserted

his right to remain silent and his riaht to

the assistance of coursel, thev may do so

only after some cubstantial intervening

factor has occurreée -- either the vassaqge

of time, in Mosely, 423 U.S. at 304-105,

and Anécutar, Mass. Apo. Ct. at (Mess.

App. Ct. Adv. Sh. [19791 at 1250), it was a

couple of hours, or, as in Watkins, Maes.

39a

The motion judge here, understandably

unsure of the proper standard, employed

both the "scrupuJously honoring" and the

waiver standard, hence conflating

constitutional principles which I helieve

must remain cistinct.

Moreover, although the motion iudge

correctly recognized that the defendant's

Sixth Amendment rights as well as his Fifth

Amenement rights may have heen violated,

his interpretation of the legal principles

applicable to such circumstances was, in my

view, also erroneous. See e.g., Miranda v.

Arizona, 384 U.S. at 444-445, 469-470, 474

FOOTNOTE CONTINUED

at (Mass. Ae@v. Sh. [1978] at 1653-1654),

the opportunity to speak with one's lawyer

-- which firmly demonstrates that the

authorities scrupulously horored the

suspects’ right to immediately cut off

questioning. Indeed, the Massachusetts

cases are firm in announcing that uncer no

circumstances mav authorities avoid

Cefencants' rights by attempting subtly to

influence the defendant to "volunteer" a

confession.

40a

& n.44; Michigan v. Mosley, 423 U.S. at

104; Brewer v. Williams, 430 U.S. 387,

403-406 (1977). Cf. Oregon v. Hass, 420

U.S. 714 (1975) (implies that where suspect

was told of his rights and asked for a

lawyer, vet police questioning continued in

violation of Miranda, the statements that

resulted could not be used in the

prosecution's case in chief). The decision

in Commonwealth v. Taylor, Mass. at -

&/provides the most illustrative aquidcance

in circumstances such as the present. See

United States v. Barnes, 432 F.2¢c 89, 91

(9th Cir. 1970). See also Commonwealth v.

McKerna, 355 Mass. 313, 323-325 (1969);

Commonwealth v. Murray, 359 Mass. 541,

545-546 (1971). But see Brewer v.

Williams, 430 U.S. at 405-406.

€/mMass. Adv. Sh. (1978) at 405-406.

4la

There is a critical difference hetween

"scrupuJously" honoring a suspect's rights

after he has indicated a desire merely not

to respond to questions by law enforcement

officials and honoring his rights after he

has indicated that he does not wish to

answer anv questions unless an attorney is

present.4/See Brewer v. Williams, supra

at 405 n. 10; Michigan v. Moslev, 473 U.S.

at 104 n. 10 and at 109-110 (White, J.,

concurring in result). Cf. United States

4/the majority opinion apparently Coes

not regare as releant the fact that Brant

initially asserted his right to speak with

an attorney on the day he was arrested

(Fegbruary 4, 1978). I thus think it

important to emphasize that the statements

sought to be suppressed were made at a time

when the eefencant had indicated, as he hac

fone at his first encouter with the

authorities, that fas the ju@ge found) he

was not "willing to proceed without an

attorney being present to represent him."

See Massiah v. United States, 377 U.S. 20).

206 (1964); Brewer v. Williams, 430 U.S. at

400-40]. See also Commonwealth v. Murray,

359 at 545.

42a

v. Massimo, 432 F. 2d 324, 327 (2d Cir.

1970) (Friendly, J., dissenting), cert.

denied, 400 U.S. 1022 (1971). See also

Miranda v. Arizona, 384 U.S. at 474 ("the

interrogation must cease until an attorney

is present").

Here, unlike Commonwealth v.

Watkins, Mass. at t/the motion

judge found that the cCefendant "already had

an attorney appointed to represent him"

(compare Commonwealth v. Williams,

Mass. , & n.9 and cases cited therein

[197919/ana the law enforcement officials

knew this, as wel] as the attorney's name.

Nevertheless, immeciately following Brant's

assertion of his rights they initiated a

tactic "designed to uncermine" his Cecision

f/mass. Adv. Sh. (1978) at 1663.

9/Mass. Adv. Sh. (1979) 1431, 1442 & mn. 9.

43a

(Commonwealth v. Jackson, supra at

h/

—‘which, although not interrogation per

se, when viewed in context is analogous to

that conduct in Commonwealth v. Taylor,

i/

which was proscribed for

supra at

being a "subtle" attempt to get the

defendant to tolk.2/

h/mMass. Adv. Sh. (1979) at 410.

i/mass. Aé@v. Sh. (1979) at 399.

5/the judge found that on the morning of

15 February, Massachusetts authorities and

agent Hudepohl were in court when Brant was

arraigned and assigned a new attorney. At

this time, having alreacy secured a

statement from Kampen, they nonetheless had

formed an intention to interrogate Brant

Jater that day, notwithstanding the fact

that Brant and his attorney were before

them, offering an opportunity for the

authorities to apprise Brant and his

attornev of their eviderce and their

intention. Later, when Brant unequivocally

asserted his rights, the authorities

nonetheless usec as leverage information

regarding Brant's codeferndant's statement

to influence Brant to talk. This might he

readily inferred from the judge's finding

44a

Although the majoritv opinion, in

distinauishing this case from Taylor,

correctly characterizes the proscribed

police behavior in that case as

"persuasion," it does not appreciate the

ful] implications of Taylor. Taylor in

fact stands for the proposition that subtle

police behavior which manifests a desire to

FOOTNOTE CONTINUED

that the authorities’ statements were "not

without significance. . . fas! evidenced hy

the fact that Kampen immeciately denied the

veracity of his fown earlier! statement."

Furthermore, according to the judge's

findings the officials did not take Brant

hack to his cell after he exercised his

rights, as was the case in Anéeuier,

Mass. App. Ct. at ‘Mass. App. Ct. Aécv.

Sh. [19791 ag 1247), ane Moslev, 423 U.S.

et 97-98, or afford him the opportunity to

speak to his lawyer, as was the case in

Watkins, Mass. at (Mass. Acev. Sh.

1978) at 1653-1654), but rather allowed

him to go out into the hallway with the

very person who had mace a statement

against him, which move they “hoped and

expected" would influence Brant to “change

his mind anc make a statement.

45a

encourage a defendant to relinquish his

once-asserted rights is inconsistent with

"scrupulously honoring” a suspect's

rights. Consequently, I believe this case

and Taylor are on all fours. Moreover, the

reasoning in Jackson is in accord.

The judge specifically found here that

"the police, in permitting Brant to speak

with [the codefendant], hoped and expected

that Brant would change his mine and make a

statemert." See United States v. Barnes,

432 F. 24 at 91. The majority conceded

this point.©/see majority opinion n. 6,

67Moreover, the larger picture, which

uncontroverted government testimony vividly

paints, adds further significance to the

fact that the police "hoped _nd expected

that Brant would change his mind and make a

statement."

The record of the suppression hearing

reflects that all witnesses said that

"conversation" took place amongst the

officials concerning their trip back to

Massachusetts. This occurred while Brant

was in the interrogation room, subsequent

to his assertion of his rights and

46a

supra.

There is no point in having a "right"

to have an attorney present during

interrogation_/if law enforcement

FOOTNOTE CONTINUED

subsequent to "statements' made by the

officials that his codefendant had already

confessed. This fact is crucial in

assessing the effect that such “statements”

may have had on Brant, as well as the

officiaJs' intention in making them. We

know from the judge's findings that Brant

had heard that were he to go to prison in

Florida he would be subjected to homosexual

attacks. Inceeed, Brant's eagerness to get

out of Florida, as wel] as the authorities'

awareness of that fact is readily apparert

from the iuege's findings an¢e the

transcript.

Viewed in this light, the officials,

apprising Brant that his codefeneant had

elready confessed cannot reasonably he seen

as an attempt on their part to stand vigil

over Brant's best interests. The overa)]

picture Gemonstrates the contrary.

//Tt cannot be aainsaid that there are no

cther situations where an attorney's

presence is more critica]. See Watts v.

Indiana, 338 U.S. 49, 59 (1949) (Jackson,

J., concurring and dissenting) ("anv laywer

worth his salt will tell the suspect in no

uncertain terms to make no statements to

police under any circumstances").

47a

officials persist in attempting to obtain a

statement during the temporary absence of

appointed counsel, thereby causing the

Gefendant to “waive” that right. See

Michigan v. Mosley, 423 U.S. at 110 n. 2

(White, J. concurring in result). See

generally Escobedo v. Illinois, 378 U.S.

478, 484-492 (1964).

Furthermore, I believe, as the motion

judge impliedly ruled, that once counsel]

has been appointed, a showing of "waiver

requires not merely comprehension by

relingquishmert."” Brewer v. Williams, 430

U.S. at 404. No such showing has been made

on this record. The subsidiary findings of

the motion judge provide insufficient

affirmative evidence that in this context

the defendent freely relinquished his right

48a

to counse1.°/See Commonwealth v. Murray,

359 Mass. at 546,

While I would not fine that the

defendant's waiver was a "spontaneous

declaration" (compare Commonwealth v.

Watkins, Mass, at Mor that it was

permissible in this context for the law

enforcement officials to tell the defendant

that his codefendant had made an

inculpatory statement (compare United

States v. Barnes, supra; but see

8/"warnings by law enforcement officers

and subseauent action by the accused that

might suffice to comply with Fifth

Amenément strictures against testimonial

compulsion would not necessarily meet what

I regard as the higher standaré with

respect to waiver of the right to counsel]

that applies when the Sixth Amendment has

attachee." United States v. Massimo, 432

F. 2€ 324, 327 (2a pte

Cir. 1970) (Frienéelyv, J., dissenting),

cert. Cenied, 400 U.S. 102? ()971).

Accord, United States v. Satterfield, 558

F. 2¢ 655, 657 (?ne Cir. 1976).

a/mass. Adv. Sh. (1978) at 1663.

49a

Commonwealth v. Jackson, Mass. at n.

7 119791 */pboth are to some cCegree beside

the point because “the defendant had an

attorney at the time he mace the alleged

statements." Commonwealth v. Williams,

Mass. At .1/consequently, once Brant

asserted his right to counsel all

communication regarding the charges should

have ceased unit] he was given a real

opportunity to speak with his attorney.2/

I buttress this view with the adeitioral

facts that the defendant's attornev was

known by name to the police, anée that this

K/mass. A@v. Sh. (1979) at 411 n. 7.

l/mMass. Adv. Sh. (1979) at 1442.

9/1It could persuasively be argued that

all communications regarding the charges

should go through the defendant's counsel].

See S.J.C. Rule 3:22, Dr. 7-104(A) (1), 359

Mass. 820-821 (1972).

50a

was not the initial confrontation, but an

attempt to take up questioning (i.e.,

receive Miranda warnings) in circumstances

where earlier no guestioning had taken

place hecause of Brant's request to speak

with an attorney ..2/see Commonwealth v.

Taylor, supra at ;@/Mi chigan v. Mosley,

423 U.S. at 101 n.7. Cf. Commonwealth v.

McKenna, supra at 324. Contrast

Commonwealth v. Santo, Mass. °

(1978) 2/ (the fefendant expressly stated

that he did not want to speak to an

attorney who had represented him in other

actions). Contrast also Commonwealth v.

10/see note 4 supra.

™M/Mass. Adv. Sh. (1978) at 405-406.

N/Mass. A@v. Sh. (1978) 1376, 1382-]383.

5la

Watkins, supra at °/ where the

defendant was indeed given an opportunity

to call his lawver; here the Cefendant was

given an opportunity to speak with the very

person who had inculpated him).

In sum, I disagree with the motion

judge's interpretation of the relevant

Feceral and State decisions and with his

application of them to the facts in the

instant case. I am unable to find or this

record that, after the defendant said

initially that he wanted legal

representation and woulée not make a

statement in the absence of counsel and

following the appointment of counsel, the

defeneant's rights to cut off questioning,

especially his Sixth Amendment right, were

O/Mass. A@v. Sh. (1978) at 1653-1654,

52a

"scrupulosuly honorec" in face of police

behavior which manifested a desire to

influence the defendant to talk after his

counsel had departed. See United States v.

Olof, 527 F. 2¢ 752, 753-754 (9th Cir.

1975); United States v. Barnes, supra;

United States v. Rocriquez-Gastelum, 569 F.

26 482, 488-489 (Goodwin, J., concurring

and @issenting), & 589-591 (fHufstedler, J.,

dissenting) (9th Cir.), cert. denied 436

U.S. 919 (1978). See also in this regard

Brewer v. Williams, 430 U.S. at 415

‘Stevens, J. concurring), wherein the

fundamerta] importance of counse] in

safe-guarding the interests of both the

accused and society is discussed. Justice

Stevens emphasizes that when a client

places his trust in counsel, and counsel in

turn places his trust in law enforcement —

authorities, if authorities nonetheless

53a

Gishonor this trust and seek to influence

the suspect to relinquish his rights

outside of his lawyer's presence, both the

individual and society suffer.

In sum, I think that the Jaw

enforcement officials did not "scrupulously

honor" the defendent's right to cut off

questioning, Michigan v. Mosley, 423 U.S.

at 104, nor has the Commonwealth sustained

its heavy burden of showing a knowing,

intelligent, and voluntary waiver of that

right. Miranda v. Arizona, 384 U.S. at

473-475. See Commonwealth v. Sires, 370

Mass. 54], 544 n. 2 (1976), and cases

cited. Accordingly, the motion to suppress

shoulé have been allowed in ful], and the

defendant should have a new trial free from

the taintee evidence.

As I helieve that all the statements

mace by the Cefendant while in custodv to

54a

Florida law enforcement officials shovld

not have been admitted in evidence, it goes

without saying that testimony of police

officers as to what he did not say is

constitutionally proscribed.

APPENDIX C. 55a

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR

COURT

Nos.

71176-82

COMMONWEALTH

Vv.

NEIL H. KAMPEN, JR.

and

JEFFREY BRANT

FINDINGS, RULINGS and ORDER on DEFENDANTS'

MOTIONS TO SUPPRESS

The defencants, Neil H. Kampen, Jr.,

and Jeffrey A. Brant, have each raised

motions to suppress the various inculpatory

statements which thev made while in the

custody of Florica or Massachusetts

officials.

After a voir Cire hearing, at which

both cefendants testified, the Commonwealth

caJled Deputy Sheriff Hudcepohl and Norwooé

56a

Police Detectives Casey and Fruci in

rebuttal, and the parties introduced twenty

(20) exhibits, I make the following

findings and rulings:

The defendants were arrested in

Titusville, Florida, after a high-speed

automobile chase which involved the

exchange of gunfire. Kampen's apprehension

took place at approximately 7:00 a.m. on

February 4, 1978. The defendants claim

that they were physically assaulted by the

arresting officers; but I Go not so find,

conéluding rather that the police used only

such force as was necessary to apprehend

the fleeing defencants Kampen and Brant.

Kampen was booked at 9:30 a.m. and

Brant, who had eluced his pursuers somewhat

longer, was booked at 2:10 p.m. During the

booking procedures, each was informed of

his Miranda rights and each was

specifically asked whether he wished to

57a

call the Public Defender. Kampen said only

that he would see the Public Defender in

court that morning, while Brant requested

and was permitted to call the public

defender.

On Sunday, February 5, 1978, hoth

Kampen and Brant were brought into court

for a proceeding which, the parties

stipulated, involved the setting of bail

and a probable cause hearing on certain

Florica charges. Brant concedes that he

was offered an attorney at that time; but

both deny that any attorney was present,

representing them at that hearing. I find

to the contrary, inferring from the Court

records that the Florida Public Defender

appeared at the February 5 hearina an¢e

represented Kampen anc Brant (as we] as

others apprehended at the same time}.

Following this hearing Kampen and

Brant were hele in custody at the Brevarée

58a

County Jail, one of a compjex of buildings

in the County seat, which included the

Sheriff's Office and, across the street,

the courthouse. Kampen and Brant were held

in separate cell blocks, each of which

housed approximately eight prisoners. The

prisoners in each block could talk with

each other, but apparently could not

communicate with prisoners held in other

cell blocks. Thus Kampen and Brant could

not converse with each other. Other

prisoners were housed in each of the cell

blocks occupied by Kampen and Brant. Anée I

infer that each of the defendants were

told, in the "scuttlebutt” of the jail,

that if they were convicted and sent to one

of Florida's State Prisons thev would be

subject to homosexual assaults.

On February 13, 1978, the Florida

Public Defenders’ Office was relieved by

Court Order from representing Kampen and

59a

Brant due to a conflict of interest between

these defencants and a juvenile apprehended

with them. On that same dav, Assistant

District Attorney Arthur Tiernan telephoned

Hudepohl] and requested that he seek to

interview Kampen and Brant concerning the

incident which is the subject of the

present indictments.

On February 14, 1978, Hudepohl arrived

at the courthouse Sheriff's Department-Jail

complex, left his police car for some

maintenance work, and proceeded to the

jail. He arrived sometime shortly before

10:00 a.m. anc askee to have Kampen and

Brant brought to him. Kampen arrived first

ane was taken by Hudepoh] into a small

interview room adjacent to the main control

room of the jail. He first informed Kampen

that he wishec to interview him concerning

certain Massachusetts offenses and told him

that Tiernan had called, and said that he

60a

wanted Kampen's side of the story.

Hudepohl cautioned Kampen that he would not

inquire about the Florida charaes and

carefully read him his Miranda rights,

assuring after each question that Kampen

understooc. Hudepohl then asked Kampen,

"Do you wish to talk with me now without’ a

lawyer?" And Kampen said, "Yes." Kampen

proceeded to give Hudepohl an inculpatory

statement which, when transcribed, covered

six pages.

I find that, at the time Kampen first

spcke with Hudepohl, he was calm and

collecteée and quite familiar with his

Miranda rights, not only from his Florida

experiences, but from earlier occasions on

which those rights had been read to him. I

also fine that his will was not overborne

by the circumstances of his incarceration

nor his concern over the results of

conviction in Plorida; and I find that he

6la

knowingly, intelligently and voluntarily

waived his Fifth Amendment rights

guaranteed under Miranda and its progeny

and his Sixth Amendment right to have his

attorney present.

Upon completion of the interview

Hudepohl and Kampen left the interview room

and Kampen was permitted to speak briefly

with Brant in the main control room.

Hudepohl next informed Tiernan of Kampen's

incriminating statement; and Tiernan

promptly secured compJaints against Kampen

in the District Court of Northern Norfolk

for armed robbery, while masked, and

assault with intent to murder. Tiernan and

Detectives Fruci and Casev then Jeft for

Florida.

On the morning of February 15, 1978,

Hudepoh] returned to the Brevard County

Jail with Kampen's earlier tapec statement,

62a

now transcribed; and Kampen, still

appearing caJm and cooperative, signed the

six-page statement before a Notary. Later

that morning, Kampen and Brant were taken

to the courthouse where new counsel were

appointed to represent each of them; and

they were arraigned on the Florida

charges. District Attorney Tiernan and

Officers Casey, Fruci and Hudepohl were in

court Curing the arraignment of the

Gefeneants and knew that they were

represented by counsel, Attorney Norwich

having been appointed for Kampen ande

Attorney Cossahoom having been appointed

for Brant. Further, the Massachusetts

authorities ane Hucepohl, hv that time, ad

formed the intention to interrogate Brant

Jater that day.

After their arraignment, Kampen and

Brant were returned to jail; and later that

afternoon they were brought into the jail

63a

interview room where Tiernan, Casey, Fruci

and Hucepohl had assemblec. At 4:57 p.m.

Hudepohl turned on his tape recorder and

began to read Brant his rights from a

document entitled, "Brevard County Sheriff

Department Interrogation Preamble,"

(Exhibit 11). This form, quite properly in

view of the fact that Brant had already had

an attorney appointed to represent him,

asks specifically, “Are vou willing to

proceed without an attorney being present

to represent you?" This question is

followed by a blank space for the answer of

the person being interviewec. When

Hudepohl] read this question to Brant, Brant

replied, "No." Hudepohl wrote this

response on the form and confirmed that

Brat refused to answer any further

questions without his counsel beijing

present. One of the Massachusetts

64a

authorities then interitected the fact that

Kampden had already mace a statement to the

police; and Hudepohl oxnticaak % Brant

that this was so and that Kampen's

statement hac already been signed and

notarized. Hudepohl then turnedc off the

tape recorder.

Kampen remarked that this statement

was “all lies;" and Brant asked for a

moment to speak with Kampen privately. He

was afforded this privilege. Fourteen

minutes after the interrogation had ceased,

Brant and Kampen returneée to the interview

room and Brant askee that the tape recoréer

he turned hack on as he wished to make a

statement. Hudepohl complied, directing

Brant's attention to the interrogation

preamble, specifically the question of

Brant's willingness to proceed without an

attorney being present to represent him.

65a

Brant himself crossed out the response,

"No," wrote in, "Yes," ane siqnee his name,

indicating his willingness to give a

statement without his attorney being

present. Brant indicated that he had

changed his mind about giving a statement

of his own free will, without any threats

or promises.

Although Brant stated he wished to

make a statement, further proceedings

followed a auestion and answer format,

Hudepoh] asking Brant certain questions and

Brant responding. At one point Kampen

volunteered a response when Brant

hesitated, or seemed uncertain; and one of

the Massachusetts authorities commenced

following up Kampen's response. Hucepohl

then specifically reminded Kampen of his

Miranda rights, ascertained that Kampen

understood those rights, and asked him

66a

expressly, "In light of al] that, An you

still wish to talk to us without having an

attorney here, or your attorney of recoré

here in Brevard County?" Kemnen responded,

"Yeah."

Thereafter both Brant and Kampen were

asked further questions and responded

thereto. Both Kampen's and Brant's

statements were incriminating; the

statements virtually amounting to a

confession to the Massachusetts offenses.

On Friday morning, February 17, 1978,

the statements made by Kampen and Brant on

the 15th having beer transcribed, they were

given an opportunity to reac the

twenty-page transcription of their “7oint

statement (Exhibit 10). Both defendants

reac the joint statement, initialed each

page, and ther executed an affidavit

stating that the facts set forth therein

were "true and correct.” Later that day,

67a

Kampen and Brant were returned to court

where, on the advice of their appointed

counsel, who were present, they each waived

extradition to Massachusetts, agreeing

voluntarily to return and face the

Massachusetts charges.

Kampen and Brant were Celivered into

the custody of the Massachusetts

authorities on the morning of Februarv 18,

1978. Brant seemed happy to be returning

to Massachusetts; but both defendants were

observed to be in complete contro] of their

faculties. Handcuffed, each defendant was

placed in the back seat of an automobile

where they were joined by Detective Casey.

Detective Fruci and District Attorney

Tiernan sat in the front seat, Tiernan

Griving. On the wav to the airport, casual

conversation among the three incividuals in

the back seat revealed that Detective Casey

68a

was Brant's cousin. Kampen saic that Brant

"ought to get a break" due to this

relationship. Sensing a willingness on the

part of the defendants to discuss the case,

Casey read them their Miranda rights from a

Miranda card he carried, ascertained that

they understood those rights, and asked if

they were willing to talk. Both cefendants

answered in the affirmative and thereafter

made further incriminating statements about

both the Massachusetts and the Florida

offenses.

1. The Defeneants' Fifth Amencement

Rights.

I fine that each of the various

incriminatory statements made by the

Cefencants was made intelligently,

knowingly ane voluntarily, free of coercion

and without the will of either defencant

being overborne in any respect. The

69a

inquiry does not end there, however, since,

if law enforcement officers fail to give

certain specified warnings 'efore

guestioning a person in custody or fail] to

follow certain specified procedures during

the course of interrogation, the statements

made by the person in custody cannot, over

bis objections, be admitted in evidence

against him as a defendant at trial, even

though the statemert may in fact be wholly

voluntary Michigan v. Mosley, 423 U.S. 98,

99-100 (1975). See Michigan v. Tucker, 417

U.S. 433, 443 (1974).

The first issue of concern is the

length of time these defendants were held

in custodéey prior to their making the

incriminating statements at issue. While

an unreasonably Jengthy detention without

arraignment may, in certain circumstances,

prevent the authorities from claiming that

70a

they “scrupulously honored" the rights of a

suspect, (See Michigan v. Mosley, 423 U.S.

115, 119 n6 (Brennan, J., dissenting), this

is not such a case. There is no suggestion

that the timing of the Cefendants'

interrogations related in any way to their

court appearances or that the Florida Court

appearances were Gelayec until such time as

Hudepohl] might question Kampen; nor is

there any suggestion that either defendant

was prevented from communicating with his

attorney at any time. Inceeed, the

Titusville Police afforded both the

defendants the opportunity to communicate

with the Office of the Public Defender; and

Brant availed himself of that opportunity.

The length of time in custody which elapsed

prior to the questioning here does not,

standing alone, warrant suppression of

these statements.

7la

Brant, however, argues strenuously

that his right to cutoff questioning was

not “scrupulously honored." He points out

that when he indicated that he did not wish

to respond to questions in the ahsence of

his attorrev, he was at once reminded that

his companion Kampen had given a signed

statement to the police. That this comment

was not without significance to the parties

at that juncture is evidencec by the fact

that Kampen immediately denied the veracity

of his statement.

I find that the police, in permitting

Brant to speak with Kampen, hoped and

expected that Brant would change his mind

and make a statement. (See U.S. v. Olof,

527 F. 2€ 52, 754 (1975). Recognizing that

Michigan v. Mosley does not establish a per

se proscription against further questioning

efter a suspect has exercised his riaht to

72a

cut off interrogation, Brant nevertheless

argues that, on the authority of

Commonwealth v. Taylor, Mass. Adv. Sh.

(1978) 394, 400-407, the brief interval

between interrogations (14 minutes), the

fact that the second statement was about

the same crime and was given to the same

interrogators as were present during the

first interrogation, when coupled with the

fact that Brant's appointed counsel, known

to the authorities, was not present,

requires suppression of the second

statement. See U.S. v. Clayton, 407 F.

Supp. 204, 206-207 (E.D. Wisc. (1976). The

Commcnwealth counters, urging that since

questioning was stopped promptly upon the

exercise by Brant of his rights, and since

no further oquestioning of any sort took

place until after Brant himself expressec

the Cesire to make a statement, after a

break Guring which he consulted with

73a

someone other than the interrogators,

Brant's second statement ought not he

suppressed, under Commonwealth v. Watkins,

Mass. Adv. Sh. (1978) 1646, 1663.

The question is a close one. Both

Taylor and Watkins Cepend upon a close

reading of Michigan v. Mosely. The focus

of the majority opinion in Michigan v.

Mosley seems to be on reviewing police

conduct which, if faulty, would appear to

prevent further questioning; that is, if

the police failed to scrupulously honor a

suspect's right to cut off questioning,

further interrogation after a hreak can he

viewed as an effort to wear down the

suspect's resistance and make him change

his mind (Michigan v. Mosley at 105-106).

At the same time, the Court characterized

as “wholly irrational" a “blanket

prohibition against the taking of voluntary

Tha

statements or a permanent immunity from

further interrogation, regardless of

circumstances" ‘Michigan v. Mosley, at

102). As I @iscern it, therefore, the

teaching of Michigan v. Mosley, as

expressed in Taylor and Watkins, is that,

once a suspect has exercised his right to

cut off questioning, the police must

"scrupulously honor" that Gecision and must

cease interrogation on that charge or that

line of inquiry for some indefinite period

of time; but that the suspect may himself

choose to initiate further interrogation.

Thus the suspect has it wholly within his

control to decline to answer any further

questions or to initiate further inquiry if

he determines his interests are best served

by so Coing.

As in Watkins, I find that, once

questioning of Brant had initially ceased,

75a

the police die not further solicit him or

apply any coercior or pressure on him, and

I hold that in these circumstances Brant's

spontaneous declaration of his desire to

make a further statement constituted an

implied, if not expressed (See PP. 1-2 of

Exhibit 10) waiver of his previously

asserted desire to speak with counsel,

which waiver is permitted under the Miranéa

and the Mosley Cecisions. Commonwealth v.

Watkins at 1663, but see U.S. v. Jakakas,

423 F. Supp. 564, 566-567 (E.D.N.Y. 1976).

I rule that adequate Miranda warnings

were given prior to taking any of the

incriminating statements in question; that

the CGefendants' rights to cut off

questioning were "scrupulously honored;"

ane that in view of my finding of

voluntariness there appears no reason why

any of the statements in question ought to

be suppressed on Fifth Amendment grounds.

76a

2. The Defendants' Sixth Amendment

Rights.

The defendants next argue that their

Sixth Amendment right to counsel was

violated by their interrogation in the

absence of counsel following counsel's

appointment to represent them. The

defendants relv most heavily on Brewer v.

Williams, U.S. (1977) 45 USLW 4287. The

Gefencants argue, ane I agree, that their

right to counsel] attached at least as early

as the February 5th probabJe cause hearing

in the Florida Court. See Argersinger v.

Hamlin, 40 7 U.S. 25 (1972); Kirby v.

Illinois, 406 U.S. 682 (1972); Gideon v.

Wainwright, 372 U.S. 335 (1963).

Adversary proceedings had then

commenced against the defendants in

Florida; and I reject any formalistic

notion that the appointment of Florida

77a

attorneys on the Florida charges did not,

at that time, call into play the

defendants' rights to counsel on the

Massachusetts charges as well. It is the

essence of the attorney-client relationship

that the client will’ reveal to the attornev

all matters affecting his or her interest;

and that the attorney, whatever the scope

of his origina) engagement, ought have a

complete background upon which to counsel

his client. The proscription of DR7-104

(A) (1), and “ethical consideration" EC7-8

seem to me to require such an

interpretation. Thus, in ascertaining

Sixth Amendment rights I rule that the

appointment of counsel on the Florida

charges is the equivalent of the

appointment of counsel on all pending

charges against these defendants; and that,

thereafter, adversary proceedings having

78a

commenced against these defendants in

Florida, they have a right to legal

representation when the government

interrogates them, Brewer v. Williams, 45

USLW, at 429]; and that “waiver requires

not merely comprehension but

relinguishment" (Brewer v. Williams, 45

USLW, at 4294). It is not enough,

therefore, to simply reac to a suspect his

Miranda rights, thus reminding him of his

right to the assistance of counse]. After

Brewer, the correct rule, as I perceive it,

requires further that the suspect expressly

or implicitly indicate that he wishes to

proceed with the questioning without his

counsel being present. See U.S. v. Monti,

557 F. 2¢€ 899, 904 (First Cir. (1977).

(Suspect's derogatory comments about his

counsel established his @esire to go

forward without counsel present).

79a

In the instant case Hudepohl, in

accordance with what appears to be a quite

proper Brevard County Practice, carefully

and repeatedly asked both Brant and Kampen

expressly whether they wished to proceed

without counsel being present. Indeed, on

February 15, 1978, when Kampen began

volunteering information during the

interrogation of Brant, Hudepohl stopped

the proceedings and, among other things,

asked him specifically whether "You still

wish to talk to us without having an

attorney here or your attorney of record

here in Brevard County." It is difficult

to see how Hudepoh! co1!d have called more

forcefully to Kampen's attention his right

to have his appointed attorney present.

Despite Hudepohl's care, however,

certain portions of the joint Brant-Kampen

statement ‘Exhibit 10) must be suppressed

80a

because no express or implicit waiver of

counsel's assistance was obtained.

Specifically, the answers provided by

Kampen on pages 14 and 15 of Exhibit 10,

which were volunteered prior to Hudepohl

re-reading Kampen's rights to him and

obtaining an express waiver of counsel's

presence must be suppressed. For the same

reason the affidavits of Kampen and Brant

attached to Exhibit 10 as weJ) as their

initials on each page must be suppressed.

These affidavits were executed and the

initials affixed on February 17, 1978, when

the transcribed statement was given to both

Gefeneants for review and signature.

The Commonwealth has failed to show

that Kampen and Brant expressly or

implicitly weived their right to the

assistance of counsel at the time they —

executed these affidavits and initialed the

8la

joint statement. Since the statement is a

joint one and the affidavits indicate that

each defendant adopts and admits as true

and correct the admissions of the other, I

rule that the signing and initialing on the

morning of February 17 was a

re-interrogation, inadmissible in evidence

absent an express ocr implicit waiver of the

assistance of counsel.

Of course, suppression of the

affidavits and initials does not mean that.

the 20-page transcript itself is to be

suppressed. Save for the remarks of Kampen

on pages 14 and 15 thereof, it is not. Nor

does this partial suppression permit the

Cefendants at trial to raise any inference

with the jury that the joint statement was

not, in fact, reviewed and signed. Should

anv such inference be suggested, it will he

open to the Commonwealth to introdcuce the

82a

affidavits and initials for impeachmert

purposes since the suppression of the

affidavits and initials "cannot be

perverted into a license to use perjury by

way of a defense, free from the risk of

confrontation with prior inconsistent

utterances." (Harris v. New York, 401 U.S

222, 226 (1977), (Dissenting opinion of

Brennan, J.); Commonwealth v. Harris, 364

Mass. 236, 239 (1973).

The statements given by Kampen and

Brant to Detective Casey on the way to the

airport must also be suppressed since the

Commonwealth has failed to prove that the

defendants expressly or implicitly waived

their right to the assistance of counsel at

the time of that interrogation. The

Commonwealth introduced credible evidence

that Casey properly read to the defendants

their Mirané@a rights from his Miranda card

83a

before discussing the substance of the

offenses with them; but, unfortunately, the

Miranda card was not introduced in evidence

as suggested in Commonwealth v. Preston,

359 Mass. 268, 372 N.2 (1971). See

Commonwealth v. Howard, Mass. App. Ct. Adv.

Sh. (1976) 866, 868 n.32.

Miranda cards ciffer. The one carried

by Officer Hudepohl and introduced in

evidence (Exhibit 16) poses as its final

guestion: "Do you wish to talk with us now

withov: a lawyer?" Perhaps Officer Casey's

card includes the same statement.

Unfortunately, we do not know; and, in the

absence of sufficient evidence that the

Gefendants, not merely comprehended their

Sixth Amendment right, but relinouished it,

the statements to Officer Casey must be

suppressed. (Brewer v. Williams, U.S.

45 USLW 4287, 4292.)

84a

It follows that Kampen's motion to

suppress must be allowed to the extent of

suppressing his responses on page 14 and 15

of the transcript (Exhibit 10) and his

signed affidavit and initials affixed

thereto. His inculpatory statements to

Officer Casey on the way to the airport are

also suppressed. His motion is otherwise

denied. Brant's motion to suppress

likewise is allowed to the extent of

suppressing his affidavit attached to

Exhibit 10 and his initials on each page

thereof, as well as his inculpatory

statements to Officer Casey on the way to

the Airport. His motion is otherwise

Cenied.

BY ORDER OF THE COURT

JUSTICE OF SUPERIOR COURT

Entered: August 3, 1978

RECEIVED & FILED

Aug. 4, 1978

CLERK OF THE COURTS

NORFOLK COUNTY