# Opposition — Massachusetts v. Brant

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1004

## Text

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

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