Opposition Brief — New York v. Ferro

.

<tegktn | ILED

84-1007

APR 18 1985

ALEZXANVEH L STEVAG,

CLER

No. — a

In The

Supreme Court of the United States

October Term, 1984

STATE OF NEW YORK,

Petitioner,

vs.

ALFIO FERRO,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CER-

TIORARI TO THE COURT OF APPEALS OF THE STATE OF

NEW YORE

;

ANTHONY V. LOMBARDINO

Attorney for Respondent

125-10 Queens Boulevard

Kew Gardens, N.Y. 11415

(718) 275-0200

Dick Bailey Printers, 208 Richmond Avenue u Staten Island, New York 10902

Tel. (212) 608-7666 — (718) 447-6358 — (616) 222-2470 — (914) 682-0848

BEST AVAILABLE COPY

*

Wc

i

QUESTIONS PRESENTED

1. Whether the placement of the furs in front of

the respondent’s cell was the functional equivalent of

illegal questioning thereby violating the Constitution.

2. Whether a fresh set of Miranda Warnings must

be given when questioning resumes assuming, arguen-

do, that all questioning must not permanently cease

once the respondent has exercised his right to counsel.

il

TABLE OF CONTENTS

Page

e i

— OE BI Reiniicsstcscoossveccsosserencccccosossovoncosooee 1

POINT ONE-Respondent’s Constitutional right

secured by the Fifth Amendment was violated by

the use of a statement made by him to law en-

is dc cadacimanaseinnose 3

POINT TWO-A fresh set of Miranda Warnings

must be given when questioning resumes assum-

ing, arguendo, that all questioning must not per-

manently cease once the respondent has exercised

e ̃ͤ ˙iu 6

TABLE OF AUTHORITIES

Cases

Leyra v. Denno, 347 U.S. 556 (1954). . . . . 5

Michigan v. Mosley, 423 U.S. 96 (1979). . . . 3

Miranda v. Arizona, 384 U. S. 436 (1966)... . 3

People v. Bodner, 74 A. D. 2d 440. . . . . . . 4

People v. Faison, 78 Il. App 3d 911 (1979). . . . 4

People v. Punch, 70 A.D. 2d 664 (2d Dept.,

aii —— —— — —— —

iii

People v. Bryant, 59 NY 2d 786... . . . .. 7

State v. Emory, 131 Ariz 493... . . . . . . . . 5

State v. Godfrey, 131 Super 168... ... . ... 5

Rhode Island v. Innis, 446 U.S. 291 (1980)............. 7

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

STATE OF NEW YORK

Petitioner,

-against-

ALFIO FERRO,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK

Statement of Facts

Lillian Sher was murdered on December 5, 1975 in

the course of a robbery. One week later respondent

was arrested for causing the death. Respondent had

no obvious connection to Sher and there was no direct

evidence linking respondent to the crime. Respondent

was taken to the 106th Precinct in Queens County and

was read his Miranda Warnings. Respondent refused

to speak to Detective Robert Hudson, who was

assigned to the Sher investigation. Later in the day,

respondent stated he wanted to speak to the District

Attorney. The detective asked why and respondent

- resumed his silence. Detective Hudson left the 106th

Precinct and returned with a handful of furs he had

recovered. The furs were placed a foot from the cell

where they remained for some period of time. Respon-

dent then asked if there was a District Attorney who

could do something for him. Approximately fifteen

minutes later, after being told that neither he nor the

2.

District Attorney could do anything for him, he asked

to speak with a ‘“‘Pisano’’. Detective Walter Cassi was

brought before respondent; I am Italian, do you

want to say something. Respondent continued with a

discusssion he had with Sher’s neighbor, Florence

Freeman, saying she wanted her robbed. Respondent

said he was not interested and Freeman asked if he

could get somebody. According to respondent, he said

he would think about it. Subsequently, these

statements were used against him at trial.

A motion to supress the statement made after

respondent’s viewing of the furs was denied and

respondent was convicted of Murder in the Second

Degree and was sentenced to a term of imprisonment

of 15 years to life.

On appeal to the Appellate Division of the

Supreme Court of the State of New York, Second

Judicial Department, by respondent, the lower

Court’s decision was affirmed, with opinion, by a 3 to

2 decision. Respondent subsequently appealed to the

Court of Appeals of the State of New York and the

Appellate Division, Second Judicial Department was

reversed by a 5 to 1 decision and the motion to supress

granted.

3

POINT ONE

RESPONDENT'S CONSTITUTIONAL RIGHT

SECURED BY THE FIFTH AMENDMENT

WAS VIOLATED BY THE USE OF A STATE-

MENT MADE BY HIM TO LAW ENFORCE-

MENT OFFICERS.

Respondent had been given his Miranda Warn-

ings by Detective Hudson and respondent chose and

elected to exercise his constitutional privilege to re-

main silent. The furs were intentially put in front of

his cell admittedly to intimidate and provoke respon-

dent into making a statement. A frightened and coerc-

ed respondent then, and only then, asked to talk to an

Italian Detective. He was brought before the Detec-

tive hours after being given his original Miranda War-

nings and then was interrogated without being given

new warnings. “‘Admissibly all statements obtained

after the person in custody has decided to remain

silent depends, under Miranda, whether his right to

cut off questioning was scrupulously honored.”

Michigan v. Mosely, 423 U.S. 96 (1979). In the case at

bar, it can hardly be said that the request of respon-

dent was scrupulously honored, instead, psychological

ploys were illegally used to improperly induce the

defendant’s statement. Detective Hudson did not

adhere to respondent’s request, but used pressure and

psychlogical coercion to get him to waive his Fifth

Amendment right to counsel which he already had in-

dicated. People v. Puch, 70 A.D. 2d 644 (2nd Dept.,

1979).

The warnings required under Miranda v. Arizona,

384 U.S. 436 (1966), are an asolute prerequisite to in-

terrogation. As pointed out in Rhode Island v. Innis,

446 U.S. 291 (1980):

“The term ‘interrogation’ under Miranda refers not

only to express questioning, but also to any words or

actions on the part of the police (other than those nor-

mally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an in-

criminating response from the suspect.“

Placing the furs in front of the cell clearly

demonstrates an act of coercion by the detective to in-

duce the respondent to waive his constitutional

rights. These maneuvers are nothing short of the

functional equivalent of illegal questioning which

the Supreme Court interpreted as applicable to Miran-

da (Supra, p. 301).

Encircled in the functional equivalent of question-

ing are ‘‘any remarks, psychological tactics or patient

maneuvering designed to elicit a response or to under-

mine the suspect’s will to resist People v. Faison, 78

Ill App 3d 911, 913 (1979). In the instant case, there

was an obvious violation of the respondent’s rights

and to allow such interplay of interrogation would

‘subjugate the individual to the will of his examiner”

and thereby undermine the privilege; the privilege

against compulsory self-incrimination (384 U.S. at

457). It is obvious these techniques of persuasion used

by the police officers can not be permitted to undo the

“safeguard’’ of the Fifth Amendment established in

Miranda.

There are several cases that are illustrative of the

functional equivalent of questioning and found the

evidence inadmissible due to the fact that there had

been no warnings. In People v. Bodner, (75 AD 2d 440)

a detective confronted the defendant by talking of the

5

incapability of his cousin as the arsonist by checking

and confirming his alibi. The court held this to be the

same as telling the defendant he was guilty and lying.

In addition, the disclosing of polygraph results to the

suspect in State v. Godfrey, (131 N. J. Super 168) and a

conversation regarding the death penalty as defen-

dant’s fate, (State v. Emory, 131 Ariz 493) are encom-

passed within the functional equivalence of question-

ing.

The state is not privileged to use psychological

coercion to induce a defendant to make a statement

Leyra v. Denno, 347 U.S. 566 (1954). Once an in-

dividual has exercised his rights to remain silent, all

express questioning and its functional equivalent

must cease (446 U.S. 291). Petitioners use of narrow-

ing the holding of Innis is simply applying articulable

fact in the place of established law. The functional

equivalent of questioning to inciude psychological

ploys has been overwhelmingly upheld. To hold that

the placing of the furs in front of the cell was anything

other than the functional equivalent of questioning

would limit the scope of Miranda and place a

premium on the ingenuity of the police to devise

methods of indirect interrogation, rather than to im-

plement the plain mandate of Miranda.” Henceforth,

then, it is quite evident that the streamline of cases

relied on by the People of the State of New York do

not raise a constitutional question at all, but are simp-

ly attempting to take another bite of the apple.

This, in essence, would lead to a severe erosion of our

fundamental rights and guarantees under the Fifth

Amendment, and signal permission to the police to

engage in a myriad of tactics in contridiction to the

privileges protected and guaranteed by the Fifth

Amendment of the Constitution.

6

POINT TWO

A FRESH SET OF MIRANDA WARNINGS

MUST BE GIVEN WHEN QUESTIONING

RESUMES ASSUMING, ARGUENDO, THAT

ALL QUESTIONING MUST NOT PER-

MANENTLY CEASE ONCE THE RESPON-

DENT HAS EXERCISED HIS RIGHT TO

COUNSEL.

All statements obtained after the person in

custody has decided to remain silent depends on

whether his right to cut off questioning was

scrupulously honored. One may not, within a short

period of time thereafter, continue his interrogation to

overcome his silence without a fresh set of warnings,

Michigan v. Mosley, 423 U.S. 96 (1979).

By placing the furs in front of respondent’s cell as

a psychological weapon to persuade respondent to

waive his constitutional rights tainted the admission.

The least to which respondent was entitled was a new

set of Miranda Warnings in order to afford the respon-

dent an opportunity to make a free willed intelligent

waiver once Detective Cassi began interrogation. The

fact that respondent was taken to an Italian Detective

at his own request did not give the latter the privilege

to interrogate without fresh Miranda Warnings. In

the case at hand, the play of the police could never

have produced an intelligent weiver.

A statement volunteered or spontaneously made

will not be suppressible unless it is about the same

crime and results from express questioning or the

functional equivalent under circumstances which do

not include fresh warnings and do not scrupulously

7

honor the suspects right to cut off questioning; Rhode

Island v. Innis, 446 U.S. 290, 300-301, Michigan v.

Mosley, Supra, People v. Brant, 59 N.Y. 2d 785). In

the case at bar, respondent made no spontaneous

declarations to the Detective, but responded to his

questions only as a result of the police coercion.

Under the circumstances, respondent's statement

was improperly induced and procurred and was cor-

rectly suppressed. Within the unequivocal law of

Mosley the psyhological coercion used to overcome

respondent’s silence without a fresh set of warnings is

plainly erroneous, and constitutionally malignant.

Conclusion

For the foregoing reasons stated above, the peti-

tion for a writ of certiorari should be denied.

submitted,

ANTHONY V. LOMBARDINO

Attorney for Respondent

125-10 Queens Boulevard

Kew Gardens, N.Y. 11415

(718) 275-0200