Opposition — Massachusetts v. Brant

OCT 21 1980

OFFICE OF THE

SUPREME COURT, U.S,

RECEIVED =.

a 4

a

NO. 80-488

IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1980.

COMMONWEALTH OF MASSACHUSETTS

Petitioner,

Vv.

JEFFREY A. BRANT

Respondent.

REPLY OF THE RESPONDENT, JEFFREY A. BRANT

TO THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT PURSUANT TO

RULE 46 OF THE RULES OF THE SUPREME

COURT OF THE UNITED STATES

ADOPTED APRIL 14, 1980

EFFECTIVE JUNE 13, 1980.

Thomas P. McCusker, Jr.

Attorney for Respondent

805 High Street

Westwood,Massachusetts 02090

(617) 326-3500

NO. 80-488

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMONWEALTH OF MASSACHUSETTS

Petitioner

Vv.

JEFFREY A. BRANT,

Respondent.

REPLY OF THE RESPONDENT, JEFFREY A. BRANT

TO THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT PURSUANT TO

RULE 46 OF THE RULES OF THE SUPREME

COURT OF THE UNITED STATES

ADOPTED APRIL 14, 1980

EFFECTIVE JUNE 13, 1980.

The Respondent, Jeffrey A. Brant, prays that a

Writ of Certiorari not issue to review the judgment

of the Supreme Judicial Court of Massachusetts.

Opinions Below.

The opinion of the Supreme Judicial Court is

reported at Mass. Adv. Sh. (1980) 1473, 406 N.E. 2d

1021. The opinion of the Appeals Court is reported

at Mass. App. Ct. Adv. Sh. (1979) 2124, 395 N.E. 2d.

1320.

— - ——— ane _—-—

statement of the Case.

The respondent was convicted of armed robbery

while masked and sentenced to not less than eighteen

years nor more than thirty years. Prior to trial

he filed a motion to suppress statements as they

were obtained in violation of his Constitutional

rights. After a hearing, the motion was denied in

part and the respondent excepted. A three judge

panel of the Appeals Court found no error, however,

Judge Brown, of that panel, filed a dissent to the

majority opinion of the Appeals Court wherein he

stated that he believed the Motion Judge misapplied

the Constitutional standards to the fact finding

process from the start. See Petitioner's Appendix B,

pages 35 (a) through 54(a).

The defendant Brant then made application to

the Supreme Judicial Court for leave to obtain

further appellate review. This leave was granted

and the Supreme Judicial Court reversed the

judgment on the basis that all statements and

admissions "should have been excluded as have been

excluded as obtained in violation of his rights |

under the Fifth Amendment of the Constitution of

the United States" Commonwealth V. Brant, Mass. Adv.

Sh. (1980) 1473, 1484; 406 N.E. 2d 1021 (Petitioner's

App. A).

Statement of Facts.

The Respondent, Jeffrey A. Brant, relies upon

the findings of fact by Judge Young, who heard and

decided the Motion to Suppress and filed Findings

of Fact. They are appended hereto as Appendix A.

The Reasons for Denying Review.

The decision of the Supreme Judicial Court for

the Commonwealth of Massachusetts in the case of

Commonwealth V. Jeffrey Brant follows settled

Constitutional law in this area. The Supreme

Judicial Court has followed the precepts set forth

by decisions of the United States Supreme Court in

Miranda V. Arizona, 384 U.S. 436 (1966), Michigan V.

Mosley, 423 U.S. 96 (1975), and Rhode Island V.

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

The Supreme Judicial Court of Massachusetts

has also followed its own case law as set forth in

Commonwealth VY. Taylor, 78 Mass. Adv. Sh. 394;

374 NE. 2d 81 (1978).

Il.

The decision of the Supreme Judicial Court of

the Commonwealth of Massachusetts in the Brant case

does not set forth a per se proscription against

further questioning by the police once a defendant

expresses a desire for an attorney but instead has

followed the settled case law as set forth in the

cases cited above.

III.

It is the Respondent Brant's position that the

decision of the Supreme Judicial Court in reversing

Brant's conviction was not based on an application

of Rhode Island V. Innis, U.S. 100, 8. ‘Ct.

1682 (1980) and it is further his position that the

decision does not constitute a new constitutional

rule of criminal procedure and further the

petitioner's argument of retroactive application

need not be considered by the Court.

Conclusion.

For the reasons stated above the respondent,

Jeffrey A. Brant, submits that a Writ of Certiorari

should not be granted.

Respectfully submitted,

omas P, McCusker,

805 High Street

Westwood, MA 02090

(617) 326-3500

APPENDIX A.

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 defendants, Neil H. Kampen, Jr., and

Jeffrey A. Brant, have each raised motions to

suppress the various inculpatory statements which

they made while in the custody of Florida or

Massachusetts officials.

After a voir dire hearing, at which both

defendants testified, the Commonwealth called

Deputy Sheriff Hudepohl and Norwood Police

Detectives Casey and Fruci in rebuttal, and the

parties introduced twenty (20) exhibits, I make

the following findings and rulings:

2(a)

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 do not so find, concluding rather

that the police used only such force as was

necessary to apprehend the fleeing defendants

Kampen and Brant.

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

who had eluded 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. Brant concedes that he was

offered an attorney at that time; but both deny

that any attorney was present, representing them

3(a)

at that hearing. I find to the contrary, inferring

from the Court records that the Florida Public

Defender appeared at the February 5 hearing and

represented Kampen and Brant (as well as others

apprehended at the same time).

Following this hearing Kampen and Brant were

held in custody at the Brevard County Jail, one of

a complex 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. And 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 they would be subject

to homosexual assaults.

On February 13, 1978, the Florida Public

Defenders' Office was relieved by Court Order from

representing Kampen and Brant due to a conflict of

4(a)

interest between these defendants and a juvenile

apprehended with them. On that same day, 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. 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 interview

him concerning certain Massachusetts offenses and

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, assuring after each question that

Kampen understood. 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,

5 (a)

when transcribed, covered six pages.

I find 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. I also

find that his will was not overborne by the

circumstances of his incarceration nor his concern

over the results of conviction in Florida; and I

find that he 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 complaints 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 Casey

then left for Florida.

6(a)

On the morning of February 15, 1978, Hudepohl

returned to the Brevard County Jail with Kampen's

earlier taped statement, now transcribed; and 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. 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 appointed 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 returned to jail; and 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

Department Interrogation Preamble," (Exhibit i3).

7 (a)

This form, quite properly in view of the fact that

Brant had already had an attorney appointed to

represent him, asks specifically, "Are you 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

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 further 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. Hudepohl then turned off the tape

recorder.

Kampen remarked that his statement was "all

lies;" and Brandt asked for a moment to speak with

Kampen privately. He was afforded this privilege.

Fourteen minutes after the interrogation had ceased,

Brandt and Kampen returned to the interview room

and Brandt asked that the tape recorder be turned

back on as he wished to make a statement. Hudepohl

complied, directing Brandt's attention to the

.— 0 ee a ee

SW BITRE 5 OE ee

8(a)

interrogation preamble, specifically the question

of Brandt's willingness to proceed without an

attorney being present to represent him. Brandt

himself crossed out the response, "No," wrote in

"Yes,"' and signed his name, indicating his

willingness to give a statement without his

attorney being present. Brandt indicated that he

had changed his mind about giving a statement of

his own free will, without any threats or

promises.

Although Brandt stated he wished to make a

statement, further proceedings followed a question

and answer format, Hudepohl asking Brandt certain

questions and Brandt responding. At one point

Kampen volunteered a response when Brandt hesitated,

or seemed uncertain; and one of the Massachusetts

authorities commenced following up Kampen's

response. Hudepohl then specifically reminded

Kampen of his Miranda rights, ascertained that

Kampen understood those rights, and asked him

expressly, "In light of all that, do you still

wish to talk to us without having an attorney

here, or your attorney of record here in Brevard

County?" Kampen responded, "Yeah."

9(a)

Thereafter both Brandt and Kampen were asked

further questions and responded thereto. Both

Kampen's during the course of interrogation, the

statements made by the person in custody cannot,

over his objections, be admitted in evidence

against him as a defendant at trial, even though

the statement 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 custody prior

to their making the incriminating statements at

issue. While an unreasonably lengthy detention

without the authorities from claiming that 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 defendants’ interrogations related in any way

to their court appearances or that the Florida

Court appearances were delayed 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.

Indeed, the Titusville Police afforded both the

a

oe , «

10(a)

defendants the opportunity to communicate with the

Office of the Public Defender; and Brandt 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.

Brandt, 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 absence of his attorney, he was at once

reminded that his compatriot Kampen had given a

signed statement to the police. That this comment

was not without significance to the parties at

that juncture is evidenced by the fact that

Kampen immediately denied the veracity of his

statement.

I find that the police, in permitting Brandt

to speak with Kampen, hoped and expected that

Brandt would change his mind and make a statement.

(See U.S. v. Olof, 527 F2d 52, 754 (1975).

Recognizing that Michigan v. Mosley does not

establish a per se proscription against further

questioning after a suspect has exercised his right

to cut off interrogation, Brandt nevertheless

1l(a)

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 Brandt'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 Commonwealth counters,

urging that since questioning was stopped promptly

upon the exercise by Brandt of his rights, and

since no further questioning of any sort took place

until after Branat himself expressed the desire to

make a statement, after a break during which he

consulted with someone other than the interrogators,

Brandt's second statement ought not to be suppressed,

under the Commonwealth v. Watkins, Mass. Adv. Sh.

(1978) 1646, 1663.

The question is a close one. Both Taylor and

Watkins depend upon a close reading of Michigan v.

Mosley. The focus of the majority opinion in

Michigan v. Mosley seems to be on reviewing police

conduct which, if faulty, would appear to prevent

12(a)

further questioning; that is, if the police failed

to scrupulously honor a suspect's right to cut off

questioning, further interrogation after a break

can be 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

statements or a permanent immunity from further

interrogation, regardless of circumstances”

(Michigan v. Mosley, at 102). As I discern 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 decision 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 doing.

13(a)

As in Watkins, I find that, once questioning

of Brandt had initially ceased, the police did

not further solicit him or apply any coercion or

pressure on him, and I hold that in these circum-

stances Brandt'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 Miranda and the Mosley decisions.

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 defendants’ rights

to cut off questioning were"scrupulously honored;"

and 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.

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

14(a)

defendants rely most heavily on Brewer v. Williams,

U.S. (19-7) 45 USLW 4287. The defendants

argue, and I agree, that their right to counsel

attached at least as early as the February 5th

probable 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

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 attorney,

whatever the scope of his original 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

15(a)

against these defendants; and that, thereafter,

adversary proceedings having commenced against these

defendants in Florida, they have a right to legal

representation when the government interrogates

them, Brewer v. Williams, 45 USLW, at 4291; and

that "waiver requires not merely comprehension but

relinquishment" (Brewer v. Williams, 45 USLW, at

4294). It is not enough, therefore, to simply

read to a suspect his Miranda rights, thus

reminding him of his right to the assistance of

counsel. 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. 2d 899, 904 (First Cir. (1977). (Suspect's

derogatory comments about his counsel established

his desire to go forward without counsel present).

In the instant case Hudepohl, in accordance

with what appears to be a quite proper Brevard

County practice, carefully and repeatedly asked

both Brandt and Kampen expressly whether they

wished to proceed without counsel present. Indeed,

16(a)

on February 15, 1978, when Kampen began volunteering

information during the interrogation of Brandt,

Hudepohl stopped the proceedings and, among other

things, asked him specifically whether "You still

wish to talk to us without any attorney here or

your attorney of record here in Brevard County."

It is difficult to see how Hudepohl could 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 Brandt-Kampen statement

(Exhibit 10) must be suppressed 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

Brandt attached to Exhibit 10 as well as their

initials on each page must be suppressed. These

affidavits were executed and the initials affixed

on February 17, 1978, when the transcribed state-

ment was given to both defendants for review and

signature.

17 (a)

The Commonwealth has failed to show that

Kampen and Brandt expressly or implicitly waived

their right to the assistance of counsel at the

time they executed these affidavits and initialed

the 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 or 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

defendants at trial to raise any inference with

the jury that the joint statement was not, in

fact, reviewed and signed. Should any such

inference be suggested, it will be open to the

Commonwealth to introduce the affidavits and

initials for impeachment purposes since the

suppression of the affidavits and initials

"cannot be perverted into a license to use

18(a)

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 Brandt 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 Miranda rights from

his Miranda card 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.3.

Miranda cards differ. The one carried by

Officer Hudepohl and introduced in evidence

(Exhibit 16) poses as its final question: "Do

you wish to talk with us now without a lawyer?"

Perhaps Officer Casey's card includes the same

statement. Unfortunately, we do not know; and,

19 (a)

in the absence of sufficient evidence that the

defendants, not merely comprehended their Sixth

Amendment Right, but relinquished it, the statements

to Officer Casey must be suppressed. (Brewer v.

Williams, U.S. 45 USLW 4287, 4292.)

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.

Brandt'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 denied.

BY ORDER OF THE COURT

Justice of Superior Court

Entered: August 3, 1978

RECEIVED & FILED

AUG. 4, 1978

CLERK OF THE COURTS

NORFOLK COUNTY