# Opposition Brief — Cobbs v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0628%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 414 U.S. 861 ## Text = FILE Copy * MICHAEL RODAY 2. MLTRA IN THE oe . Supreme Court of the United States OCTOBER TERM, 1973 No. 73-5030 JAMES J. COBBS, Petitioner, 7; STATE OF CONNECTICUT, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI & DonaLp A. Browne ead State’s Attorney for g;” Fairfield County 4 Attorney for Respondent S$ County Court House S 172 Golden Hill Street &” Bridgeport, Connecticut 06604 Preserve A EEO NES ITPRINT IEEE Re ee PT ee mS owes : / : : : TABLE OF CONTENTS in Ee COCO Ee EL DE ieitiy Ubaveehuns det esbnaducns oe ~“ ’ I. The Grand Jury Proceedings ................. eee B. Right to Stenographie Minutes ............ II. Constitution of the Grand Jury ............... III. Composition of the Petit Jury Panel .......... IV. The Petitioner's Statements .................. Ne eubemubens Cases CITED Application of Robarts, (Nev.) 485 P.2d 685 ........ Baker v. United States, 412 F.2d 1069 .............. Butler v. United States, 402 F.2d 748 ............... Chance v. United States, 322 F.2d 201 .............. Commonwealth v. Carroll, (Pa.) 278 A.2d 898 ....... Edgington v. State, 243 Ark. 10, 418 S.W.2d 637 .. Gallegos v. State, (Nev.) 446 P.2d 656 .............. Gibson v. State, (Okla.) 476 P.2d 362 ............... Green v. State, (Ala.) 233 So.2d 243 ................ PAGE —— TABLE OF CONTENTS PA Hammond v. Brown, 323 F.Supp. 326 .............. eis eT Be ee Be oie kes cnn en ec oens senses Heard v. State, 244 Ark. 44, 424 S.W.2d 179 ......... In Boe Chrmmtes, 455 FB TID. goon vc ccncccsewcnsss Klempert v. Culp, 407 F.2d B56 . .. 2... cc ecseeccess Loux v. United States, 389 F.2d 911 ................ Mingo v. People, (Col.) 468 P.2d 849 ............... Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 ee rere err ee 17, 18, 20, 22, 23, : Nash v. State, (Texas) 477 S.W.2d 557 ............. Parejo v. Culp (D.C.) 320 F.Supp. 395 ............. People v. Cruthird, 30 Mich. App. 196, 186 N.W. 2d 531 People v. Hess, 104 Cal. App. 2d 642, 234 P.2d65..... 1 People v. Higgins, 50 Ill. 2d 221; 278 N.K.2d 68 ..... People v. Kruger, 302 N.Y. 447, 99 N.E.2d 233 ...... People v. Mercer, 64 Cal. Rep. 861 ................. : People People v. People v. People v. People v. v. Pantoja, 78 Mich. App. 681, 184 N.W.2d 761 | Pierce, 67 Cal. Hoom, G66... 06sec scvcccees | Smith, 30 Mich. App. 34, 186 N.W.2d 61 . Sunday, 76 Cal.Rep. 668 ................. } Tubbs, 22 Mich. App. 549, 177 N.W.2d 622. ‘VW People v. Washington, 115 Tl.2d 318, 253 N.E.2d 677 | Reyes v. Smith v. Soolook State v. State v. State v. State State v. State v. State v. United States, 417 F.2d 916 ............... Peyton, 295 Pape. 8578 on oes ceccinccess v. State, (Alaska) 447 P.2d 55 ............. 7 Arnold, (Oregon) 496 P.2d 919 ............ 18, Benitez, 157 Conn. 384, 254 A.2d 564 ........ Biehl, 135 N.J. Law 268, 51 A.2d 554 ........ v. Carlton, (N.Mex.) 945 P.2d 1091 ........... Chaplin, (Maine) 286 A.2d 325 ............. Chapman, 103 Conn. 453, 130 A. 899 ........ Collins (Wash.) 446 P.2d 325 .............. 19, State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. Swain v TABLE OF CONTENTS ii PAGE Delgado, 161 Conn. 536, 290 A.2d 338 ....... 6,7,8 Devoe (Mo.) 480 S.W.2d 164 ............... 19 Ferraro, 146 Conn. 59, 147 A.2d 478 ........ 14 Finlayson, (Wash.) 417 P.2d 624 ........... 15, 16 Goyet, 119 Vt. 167, 122 A.2d 862 ............ 13 Hankish, 147 W. Va. 123, 126 S.E.2d 42 ..... 14 Harper, (Mo.) 465 S.W.2d 547 ............. 17,18 Hogan, 67 Conn. 581, 35 A.508 ............. 16 Holderness, (lowa) 191 N.W.2d 642 ........ 17 Jones, (Minn.) 196 N.W.2d 606 ............ 7 Luria, 100 Conn. 207, 123 A.378 .... 26000: 16 Mastrian, 285 Minn. 51, 171 N.W.2d 695 .... 18 Motes, (Arvin) S70 FB Ot... cnc ce ct ccncds 14 McGee, 80 Conn. 614, 69 A.1059 ............ 16 Miller, 35 Wis. 2d 454, 151 N.W.2d 157 ...... 23 Peck, (Mo.) 420 BW 2d B47... cess ccess 22 Rocco, 109 Conn. 571, 145 A.47 ............. 16 Smith, 138 Conn. 196, 82 A.2d 816 .......... 16 Stallings, 154 Conn. 272, 224 A.2d 718 ...... 6,7 Vennard, 159 Conn. 385, 270 A.2d 837 ....... 6.8 . Alabama, 380 U.S. 202, 85 S.Ct. 824, 131 Ed. RN gee unre Oi cia ear eat ce ea ak 15 Thessen v. State, (Alaska) 454 P.2d 341 ............ 19 United States v. Angello, 452 F.2d 1135 ............ 23 United States v. Bekowies, 432 F.2d 8 ............. 23 United States v. Brown, 457 F.2d 731 .............. 21 United States v. Butera, 420 F.2d 564 .............. 10 United States v. Caruso, 358 F.2d 184 .............. Ss United States ex rel Chestnut v. Criminal Court, 442 ee ee ee eee eena eer sae 11 United States v. Cianchetti, 315 F.2d 584 .......... 8 United States v. Cooper, 464 F.2d 648 ............4. 8 United States v. Corallo, 413 F.2d 1806 ............. 6.7 2 eens iv TABLE OF CONTENTS PA United States v. Duncan, 456 F.2d 1401 ............ United States v. George, 444 F.2d 310 .............. United States v. Harflinger, 436 F.2d 928 ........... United States v. Hartlerode, 464 F.2d 1280 .......... United States v. Harper, 432 F.2d 100 .............. United States v. Hedges, 455 F.2d 188 .............. United States v. Kind, 433 F.2d 339 ................ United States v. Levinson, 405 F.2d 971 ............ United States v. Schrenzel, 462 F.2d 765 ............ United States v. Silverman, 449 F.2d 1341 .......... | United States v. Tillman, 272 F.Supp. 908 .......... 10,1 United States v. Tropiano, 418 F.2d 1069 ........... 1 United States v. Wilson, 427 F.2d 649 .............. United Sttaes v. Wolff, 409 F.2d 413 .............. d United States v. Wolfson, 282 F.Supp. 7 United States v. Ybarra, 430 F.2d 1230 ............. Watts v. State, (Ala.) 262 So.2d 630 ...........005. 1 ~l bo i) IN THE Supreme Court of the United States OCTOBER TERM, 1973 No. 73-5030 a. ~~ JAMEs J. Cosas, Petitioner, v. STATE OF CONNECTICUT Respondent. ib vw BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Questions Presented . Does an accused have a constitutional right to represen- tation by counsel at grand jury proceedings or a consti- tutional right that proceedings before a grand jury must be stenographically recorded? . Was the grand jury which indicted the defendant il- legally or unconrstitutionally assembled? . Was the petit jury panel from which the defendant’s trial jury was selected illegally or unconstitutionally assembled ? . Were statements made by the defendant improperly admitted into evidence? ———" Statement of the Case On the evening of Saturday, August 27, 1966, the pe. titioner, James L. Cobbs, participated in the murder of one Batista Carbone, a resident of the City of Bridgeport. Batista Carbone, age 70, resided alone in a fifth floor apartment of the Green Apartments, a public housing project in Bridgeport. On the evening of Saturday, August 27, 1966, the pe- titioner was present with an unidentified companion in a local Bridgeport restaurant known hoth by the name of L. Belle Bar or Tony’s Restaurant situated on Harral Avenue across the street from the Green Apartments. The petitioner and his companion left the restaurant and were seen together approximately one-half hour later by the steps leading from the Green Apartments. At that time the petitioner proceeded to walk across Harral Avenue carrying a towel which appeared to have stains which resembled blood on it. On Harral Avenue, the petitioner met and spoke with two friends of his who were named Robert Womble and Raeford Willis. The’ petitioner told Robert Womble that he had participated in killing some- one. The petitioner asked Raeford Willis for a ride. Robert Womble did not want Raeford Willis to take the petitioner because of what the petitioner had told hin. Womble, Willis and the petitioner all drove off in Willis’ automobile but Womble left the auto after several blocks because he did not wish to involve himself further. Shortly thereafter Willis stopped the auto at the peti- tioner’s request and the petitioner placed the same towel with apparent blood stains and a kitchen knife with a wooden handle into a street sewer. Willis then drove the petitioner to the vicinity of the petitioner’s home. The body of Batista Carbone was found on the living room floor of his apartment on Sunday, August 28, 1966. Mr. Carbone had been strangled manually and had been stabbed eleven times by a sharp bladed instrument. The probable cause of death was strangulation with the stab wounds being inflicted after death. Sometime later petitioner showed Raeford Willis a newspaper article about the death of Batista Carbone and said something about it being true. Shortly after the Carbone murder the petitioner sold a Timex wrist watch to a man who worked with him at a dry cleaning company. The daughter of Batista Carbone posi- tively identified the same watelh as one which had been owned by her father. Mr. Carbone’s daughter based her positive identification upon a distinctive yellow stain or discoloration on the watch crystal. On May 16, 1967 the petitioner was arrested for the Carbone murder. At the time of his arrest and before heing taken to the Bridgeport police station the petitioner was advised of specifie constitutional rights regarding statements which he might make. Thereafter at the police station these same constitutional rights were reviewed with him again and he signed a written acknowledgment that he was acquainted with them. At the police station the arresting officer by the name of Lieutenant Anthony Fabrizi advised the petitioner that the police had all the evidence that they needed regarding the Carbone murder and that he did not want the petitioner to tell them anything. Lieutenant Fabrizi further advised the petitioner that the Bridgeport Police were satisfied that the petitioner had been in the apartment when the man was killed and that he had drank heer taken from the vietim’s refrigerator and had wiped the refrigerator clean of fingerprints with a towel. At that time the petitioner asked Lieutenant Fabrizi how he knew so much and the lieutenant stated that the man who had been with the pe- titioner had told them everything and the lieutenant again 4 described wiping fingerprints off of the refrigerator, to which the petitioner stated that he had not done that but the other man did. Lieutenant Fabrizi then wrote on a piece of paper and placed it under a telephone telling the petitioner that he had written the name of the brand of beer which they had drank in the dead man’s apartment and asked the peti- tioner to test him on it. The petitioner stated “*Schaefer beer’’ and then picked up the paper which had this same brand name on it. The petitioner then Stated that he had hit the man in the face and knocked him out; grabbed him to keep him from falling and hurting himself ; lowered him to the floor; and went through his pockets. The petitioner’s initial conversation terminated at ap- proximately 10:00 A. M. and the petitioner was processed through normal police booking procedures, while the lien. tenant attended to other detective bureau matters. At approximately 11:30 A. M. the petitioner asked for a tele. phone to call his grandmother. At the same time he stated: “I should call my lawyer.”’ At that time the lieutenant placed a telephone in front of the petitioner and advised him that he could make as many telephone calls as he wanted. The petitioner in fact ealled his grandmother and asked her to come to the police station and also called a girl and asked her to write to him. The petitioner then asked the lieutenant if he could wait for his grandmother in the lieutenant’s office. Shortly after noon the petitioner’s grandmother arrived at police headquarters and spoke with the petitioner, As the grandmother was leaving and in the presence of Liev- tenant Fabrizi and Sergeant Frank Nerkowski she advised the petitioner to tell the truth and asked the petitioner why he had gone there and the petitioner replied to her in the presence of the two officers that they had gone there to mug a@ man and he is dead. The petitioner then advised Liet- * n SD PC EES. EAE BO ile 5 tenant Fabrizi that he would describe his version of what happened and gave a detailed description of following the victim into the apartment and mugging him but leaving him unconscious on the floor and leaving; that immediately é thereafter his companion left him and reappeared shortly ; thereafter and handed him a towel, a bloody knife, a wrist- watch and a ten dollar bill; and finally a description of leaving the area with Robert Womble and Raeford Willis. At approximately 1:35 P. M. on May 16, 1967 the peti- tioner was taken to the Second Circuit where he was ar- raigned at approximately 1:45 P. M. MA Bes II RAPD bend 5 nme Lipeen.2 The petitioner was subsequently indicted by a Grand Jury for the crime of murder in the first degree. In ac- cordance with Connecticut practice the petitioner was pres- Thereafter the petitioner pleaded not guilty to the In- dictment and was tried by a jury of twelve and on April 26, 1968 after a full trial the jury returned a verdict of Guilty of First Degree Murder and on April 29, 1968 the same jury recommended a sentence of life imprisonment which was imposed by the Court. The petitioner’s subsequent appeal to the Connecticut Supreme Court was denied by that court on April 3, 1973. | a * 6 ARGUMENT I. The Grand Jury Proceedings A. Right to Counsel Quite clearly the established authority and precedent in the State of Connecticut unanimously hold that ‘neither precedent nor the due administration of justice require that counsel be present with the defendant at the grand jury proceeding.’’ State y. Stallings, 154 Conn. 272, 299 224 A.2d 718. This holding was recently restated in the case of State v. Delgado, 161 Conn. 536, 539, 290 A.2d 338. See also State v. Vennard, 159 Conn. 385, 390, 270 A.2d 837, cert. denied 400 U.S. 1011, 91 S.Ct. 016, 27 L.Ed.2d 625. Similarly recent Federal decisions have also repeated this holding that clearly “‘. . . there is no constitutional right to be represented by counsel while the grand jury is deliberating.’’ Harris y. Beto, 438 F.2d 116: Ham. mond v. Brown, 323 F. Supp. 326. **An accused counsel likewise has no right to be present at the grand jury.”” 38 Am Jur 2d 980n (Grand Jury § 34) The petitioner’s present claims that either constitu. tional rights or decisions of this court should entitle him to the presence of counsel at the grand jury proceeding have been repeatedly denied by well reasoned decisions of the Federal court system. United States y. Duncan, 456 F.2d 1401, 1407; In Re Grumbles, 453 F.2d 119, 122; United States v. Corallo, 413 F.2d 1306, 1330; United. States v. George, 444 F.2d 310, 314; United States vy. Wolfson, 282 F.Supp. 772, 775. ‘“*The grand jury is an ancient institution and the only agency of our jurisprudence that is secretive. Its proceedings are not adversary. Its function is only ee ete 7 investigative. It does not determine guilt or inno- cence. It determines only whether there is sufficient evidence to cause an accused to stand trial before a petit jury. There is no right of an accused to cross- examine witnesses or to introduce evidence in re- buttal. The grand jury has in all ages stood between the accused and his unjust accusers. One accused of crime may oftentimes, by himself testifying before the grand jury, clear up the charges against him so : that no indictment is returned, ? = & x z © = Fy & &, 2 $ wilerecay - . Admittedly Escobedo, Miranda and Wade are not factually analogous to Strang’s position in the case at bar. We are unwilling to extend the principle of those cases to the right of a potential defendant to have a lawyer present with him in the grand jury room.’’ United States y. Levinson, 405 F.2d 971, 980. ‘It is hornbook law that witnesses called to testif v be- fore a grand jury have no right to the presence of a lawyer to object to questions or act as counsel,”’ United States y. Corallo, ante at 1330. The State respectfully submits that these numerous federal decisions and the decisions of the Connecticut Su- preme Court in Stallings and Delgado retain their vitality and urge upon this Court the total lack of any reported decision supporting the petitioner’s ¢elaim. B. Right to Stenographic Minutes The petitioner’s position on the absence of a transcript of the proceedings before the grand jury apparently is that the equal protection or due process provisions of the Constitution of the United States require that such a transcript be prepared. Necessarily this again is contrary to the well established authority both of the State and the Federal judicial decisions. ‘There is no constitutional or statutory right to have a stenographer present in the grand jury room a= 8 and we find no error in the refusal of the trial court to permit it in this case.’’ State v. Delgado, 161 Conn. 536, 540, 290 A.2d 338. See also: State v. Vennard, 159 Conn. 385, 390, 270 A.2d 837. ‘“‘The law does not require that the testimony of witnesses before a grand jury be recorded or tran- seribed. . . . Every court that has considered the question has so held. (citations omitted)’’ Lour vy. United States, 389 F.2d 911, 916. ‘*. . . neither statute nor the Constitution requires that the testimony of witnesses before a grand jury be recorded or transeribed.’’? United States v. Har- flinger, 436 F.2d 928, 935. ‘*We find no constitutional right to have grand jury proceedings recorded.’’ United States v. Harflinger, ante, at 936. Quite clearly, the reported federal decisions unanimously hold that there is no constitutional requirement that grand jury proceedings must be recorded or transcribed. United States v. Hartlerode, 464 F.2d 1280, 1282; United States v. Cooper, 464 F.2d 648; United States v. Schrenzel, 42 F.2d 765; United States v. Hedges, 458 F.2d 188; United States v. Kind, 433 F.2d 339, 340; United States v. Harper, 432 F.2d 100, 102; United States v. Ybarra, 430 F.2d 1230, 1230; United States v. Wilson, 427 F.2d 649, 659; Reyes v. United States, 417 F.2d 916, 918; Baker v. United Siates, 412 F.2d 1069, 1073; United States v. Caruso, 358 F.2d 184; United States v. Cianchetti, 315 F.2d 584. Finally, the respondent feels obliged to comment that the petitioner’s allegation at page 19 of his brief that grand +e aa aed 9 jury proceedings in Connecticut ‘‘prohibit note taking by the accused’’ is totally incorrect, unsubstantiated by any evidence appearing anywhere in the record of this pro- s ceeding and just not true. Again the position and claims of the petitioner and his counsel are eloquent and elaborate but completely unsup- ported by any reported decision of any federal or state court of record. II. Constitution of the Grand Jury The respondent initially disputes the completely un- substantiated statements within the petitioner’s brief that the grand jury which indicted the petitioner was composed exclusively of personal acquaintances of the sheriff or his associates; that residents of the City of Bridgeport were completely excluded from service; and that the grand jury which indicted the petitioner was the same grand jury which indicted one Villafane in another unrelated matter. In fact the 18 member grand jury which indicted the petitioner included six Bridgeport residents, only one : single person who served on the unrelated Villafane jury; and there was just no evidence that the 18 member panel was composed of personal acquaintances of the sheriff. Further the petitioner’s reference to the use of volun- teers must be considered exclusively in the context of per- sons who agreed to serve voluntarily on the grand jury as distinguished from individuals who themselves requested service. The only statutory regulation regarding grand jury service in Connecticut is that the individual be an elector (C.G.S.54-45). The general statutes prescribe no additional limitations or qualifications nor any method for selection. It appears undisputed that by longstanding tradition the 10 Superior Court has always directed the High Sheriff of the particular county to convene a grand jury and the sheriff complies with that direction. The law applicable to the constitutionality of grand jury composition is clear. A grand jury which returns an in- dietment will not be found to have been improperly se- leeted where no proof is offered that any class was ex- cluded or the grand jury was not legally drawn from a representative cross-section of the community. Butler v. United States, 402 F.2d 748; U. S. v. Butera, 420 F.2d d64, 574. The State submits that the constitutional test, ‘*. . . is not whether a particular method of selection, such as voter registration lists was employed but whether the use of such a procedure resulted in an array which was a repre- sentative cross-section of the community or an array from which a cognizable group or class of qualified citizens has been systematically excluded (citations omitted)’’. United States v. Tropiano, 418 F.2d 1069, 1979. The State again submits that it is not the method of selection but the result of that selection which is deter- minative. Without question grand juries must be selected from all classes of persons without discrimination because of race, color or religion or political belief and any discrim- ination on the part of selecting officials is a violation of constitutional guarantees. 38 Am Jur 949 (Grand Jury § 4) In brief it is again the position of the State that there exists no authority, precedent or statute requiring a ran- dom selection of grand jurors and that the only constitu- tional requirements are an affirmative duty that the juries include a representative cross-section of the community and a negative duty that no class or group is purposely excluded from participation. ef United States v. Tillman, 272 F. Supp. 908, 910. Fee EO RENE ll ‘Nobody contends that to obtain a ‘cross-section’ it would be required that names be taken at random from the totality of the inhabitants of the area . . .’’ Chance v. United States, 322 F.2d 201, 204; U nited States v. Tillman, 272 F.Supp. 908, 913. Quite clearly ‘‘obtaining a cross-section of the com- munity does not require that the jury be a ‘perfect mirror of the community or accurately reflect the pro- portioned strength of every identifiable group.’ Swain v. Alabama, 380 U.S., supra, at page 208, 85 S.Ct. $24 at page 829. Aceord: Hernandez v. Texas, 347 U.S., supra, page 482, 74 S.Ct. 667; Cassell v. Texas, 339 U.S. supra, page 287, 70 S.Ct. 629; Akins v. Texas, 325 US., supra, page 403, 65 S.Ct. 1276; Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 50 L.Ed. 497.’’ Com- monwealth v. Carroll, (Pa.) 278 A.2d S98, 900. In a very recent 1971 decision the Supreme Court of the State of Nevada reviewed and sustained a grand jury selection procedure strikingly similar to the Connecticut procedure, quoting the following language: ‘*We do not think that persons who are unacquainted with the selection officials constitute a distinct class, against whom discrim- ination can oceur;’’? Application of Robarts, (Nev.) 485 P.2d 685, 686. Finally the respondent refers to the very recent 1971 decision of the United States Second Cireuit Court of Ap- peals in the case of United States ex rel. Chestnut v. Crim- inal Court of the City of New York, 442 F.2d 611 (2nd Cire.) in which the court refused to reverse an indictment where the grand jury panel consisted exclusively of volun- teers, exclusively between the ages of 35 and 65 and with all welfare recipients summarily excluded. The respondent emphatically submits that there exists not one shred of evidence that the selection methods of Sheriff nee — 12 John Previdi did not produce fair and impartial grand jurors drawn from a representative cross-section of the community. III. Composition of the Petit Jury Panel The total petit jury panel for Fairfield County for the court year in question contained approximately 12,((K) names. From among these 12,000 prospective jurors the evidence presented established that some totally undeter- mined speculative amount of possible prospective jurors may have been eliminated in error. Absolutely no specific evidence as to the elimination of any single eligible pro- spective juror was presented. The evidence presented by the petitioner in his challenge to the jury array was totally vague and uncertain and at best indicated that some in- significant deviations from the statutory requirement of selection of prospective jurors by lot may have existed. Quite clearly absolutely not one specific figure or mathe- matical proportion was established. The petitioner’s selection was directed at the procedure followed in only six of the twenty-three towns within Fairfield County, and the conclusion is irresistible that the procedures followed in the other communities were com- pletely proper and the presumption that the persons in charge of jury selection have completed their obligation properly is completely applicable. 50 C.J.S. 889 (Juries § 163a) While the defendant would group the apparent devia- tions together in a manner which would magnify them and attempt to attribute all of them to all of the towns such is simply not the accurate situation. Quite obviously what- ever scattered deviations or technical irregularities were presented were de minimis within the 12,000 total names submitted. —— ‘ . . SPOS DL Ne NIGERIA AAA CIT LS TLL BUA TE £ ees aia — i 13 The law applicable to these situations is quite clear: DOT ‘‘Statutory provisions with regard to making up the y, jury list ordinarily are held to be merely directory, and errors and irregularities in failing strictly to com- ply with the provisions which are not prejudicial to the parties do not invalidate the list or furnish any ground for challenging the array.’’ 50 C.J.S. 889 (Juries § 163b) citing 51 cases. ‘*. . . the general rule is that statutory provisions respecting the preparation of lists and the drawing of the panel are regarded as directory only, and that irregularities therein are no ground of challenge, unless they are such as plainly operated to prejudice the challenging party.’’ State v. Biehl, 135 N.J. Law 268, 51 A.2d 554, 556 (emphasis added) ‘‘The remainder of the cited cases are illustrative of the rule that an indictment by a grand jury or a ver- dict by a petit jury will not be invalidated because of some technical irregularity in the making up of a jury list unless prejudice be shown to result thereby.’’ State v. Goyet, 119 Vt. 167, 122 A.2d 862, 867 (emphasis added) ‘As a general rule, errors and irregularities in failing to comply strictly with the statutes in making up a jury list, when there is no resultant prejudice to the parties involved in litigation, does not invalidate the list.”’ People v. Hess, 104 Cal. App. 2d 642, 234 P.2d 65, 83, App. dism. 342 U.S. 880, 72 S.Ct. 177, 96 L.Ed. 661 (emphasis added) ‘‘While all of these represent unexcused variations from the jury selection procedure set out by the legis- lature . . ., we believe that they are not material deviations and did not in any way prejudice defendant or deprive him of a fair and impartial jury trial.’’ State v. Mastrian, 285 Minn. 51, 171 N.W. 2d 695, 704, Aig 9 . 14 cert. den. 397 U.S. 1049, 90 S.Ct. 1381, 25 L.Ed.2d 662 (emphasis added) ‘Tt is well settled that mere irregularities in the draw- ing of grand and petit jurors, is not a ground for re- versing a conviction, unless it appears that they oper. ated to the injury or prejudice of the prisoner.” People v. Kruger, 302 N.Y. 447, 99 N.E.2d 233, 235. (emphasis added) ‘¢A judgment of conviction will not be reversed for dis- regarding formal provisions of the law regarding the manner and selection of juries if a fair and impartial jury was secured. (citations omitted) Defendant offered no showing that his rights were prejudiced due to this technical discrepaney.’’ State v. McGee, (Ariz) 370 P.2d 261, 266 (emphasis added) ‘‘The statutes dealing with the selection of jurors have been held to be directory and error predicated there- on will not be reviewed after verdict unless it is ap- parent the accused was prejudiced thereby.’’ State v. Hankish, 147 W.Va. 123, 126 S.E. 2d 42, 45 (emphasis added) This same rule has been recited by the Connecticut Su- preme Court on at least two separate occasions in the cases of State v. Chapman, 103 Conn. 453, 130 A.S899 and State v. Ferraro, 146 Conn. 59, 62, 147 A.2d 478. ‘*. . . mere irregularities in the drawing of grand and petit jurors, is not a ground for reversing a con- viction, unless it appears that they operated to the injury or prejudice of the prisoner.’’ State v. Chap- man, ante, at 472. ‘*We have held on a number of occasions that irregu- larities in drawing or summoning a jury did not con- stitute a ground for a new trial unless they were actu- ally or probably prejudicial to a party.’’ State v. Ferraro, ante, at 62. ~ . ~~ NO TOO OE MENIIE UNE TR 15 DA SLT ee app cE In Swain v. Alabama, 380 U.S. 202, 207, 85 S.Ct. 824, 13 L.Ed. 2d 759 the failure of the state jury commissioners to follow statutory regulations was insufficient to dismiss a jury array in the absence of evidence of fraud or pur- poseful discrimination. Finally the case of United States v. Silverman, 449 F.2d 1341 involved the inclusion of a clearly ineligible juror on the actual twelve member jury which convicted the defend- ant. In refusing to reverse the conviction the Second Cir- cuit speaking by Judge Paul Havs stated: ‘‘the inclusion in the panel of a disqualified juror does not require re- versal of a conviction unless there is a showing of actual prejudice.’’ United States v. Silverman, ante at 1344 (emphasis added) In his brief the defendant makes no claim, allusion or reference to being prejudiced by the compilation of the names of the 12,000 potential jurors, quite clearly because it was just not so. Clearly and without doubt the defendant is hoping that lightning will strike and enable him to reverse his convic- tion on a technicality having absolutely no relation to that conviction. A recent decision of the Supreme Court of the State of Washington appears uniquely applicable to the instant factual situation: ‘*The manner of making up the jury lists indicated hy the statute is merely direetory, and need be only substantially complied with, to the end that a fair and impartial trial may be had. * * * [I]n this state we have followed the great weight of authority, to the effect that such statutes are directory, and that the very fact that the officer in the performance of his duty failed to conform precisely to the statutory re- quirements did not invalidate his act unless it appears that there is reasonable apprehension that the com- 16 plaining party has been prejudiced. The purpose of all these statutes is to provide a fair and impar- tial jury, and if that end has been attained and the litigant has had the benefit of such a jury, it ought not to be held that the whole proceeding must be annulled because of some slight irregularity * * *. ‘*Having determined that a fair and impartial jury was secured, we hold that * * * if the prisoner has been tried by an impartial jury, it would be nonsense to grant a new trial * * * in order that he might be again tried by another impartial jury.’’ State vy. Finlayson, (Wash.) 417 P.2d 624, 626 (emphasis added) In Connecticut a challenge to the array will be allowed only on some ground which arises out of the proceedings in selecting and summoning the panel. State v. Smith, 138 Conn. 196, 202, 82 A.2d 816. In State v. McGee, 80 Com, 614, 619, 69 A. 1059, the challenge to the array was al- lowed because the failure to follow the statutory command in selecting names was applicable to all the names selected and thus applied to the entire panel. **A challenge to the array of jurors is an objection to the whole panel of jurors at onee, and in order to be available it must be for a cause that affects all the jurors alike.’’ State v. Hogan, 67 Conn. 581, 583, 35 A508; State v. Smith, supra; State v. Rocco, 109 Conn. 571, 572, 145 A.47; State v. Luria, 10 Conn. 207, 209, 128 A.3878; 47 Am. Jur. 2d, Jury, § 224; 5 Wharton, Criminal Law and Procedure § 1961. As the petitioner’s challenge applied only to the doings of jury committees in six of twenty-three towns, it was inadequate on its face. It clearly did not claim a deficiency in the selee- tion process used to obtain the jurors from seventeen towns and thus did not attack the validity of the entire panel. State v. Hogan, supra. eee ons: SRS 17 IV. The Petitioner’s Statements The respondent initially emphatically disputes the peti- tioner’s allegations again stated as if they were undis- puted fact that ‘‘the petitioner was not given proper warn- ing of his constitutional rights’’ and that ‘‘none of the warnings met the requirements of constitutional stand- ards.”’ Petitioner does not state anywhere affirmatively in what manner he claims that the advisement of his rights was de- fective. By innuendo it would appear that he relies upon a claim that the decision of this court in the case of Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694, requires a specific advisement that any interrogation would cease at his request. In this respect petitioner apparently relies entirely upon the earlier Connecticut decision of State v. Benitez, 157 Conn. 384, 254 A.2d 564. If in fact Benitez implied such an obligation it was clearly contrary to the prevailing au- thority and was just as clearly reversed by the decision in the instant holding. Quite clearly the unanimous holding of existing precedent is that the failure to advise a suspect that he has the right to stop answering questions at any time does not vitiate his subsequent statements or admis- sions or render them inadmissible in evidence. See Parejo v. Culp, (D.C.) 320 F. Supp. 395, 396; State v. Carlton, (N. Mex.) 945, P.2d 1091, 1101; People v. Smith, 30 Mich. App. 34, 186 N.W. 2d 61, 63; State v. Jones, (Minn.) 196 N.W. 2d 606; Watts v. State, (Ala.) 262 So. 2d 630, 631. People y. Cruthird, 30 Mich. App. 196, 186 N.W. 2d 53; State v. Harper, (Mo.) 465 S.W. 2d 547, 549; Green v. State, (Ala.) 233 So. 2d 248, 246; People v. Washington, 115 [l.2d 318, 253 N.E. 2d 677, 682; People v. Pantoja, 28 Miei. App. 681, 184 N.W.2d 761, 765; State v. Holderness, (lowa) 191 N.W. 2d 642, 648; People v. Tubbs, 22 Mich. 18 App. 349 177 N.W. 24 622, 625: State vy. Arnold, (Oregon ) 496 P.2d 919, 922. “‘Defendant’s second contention on appeal is that the Miranda warnings given to defendant were insufficient jn that they did not tell defendant he had the right to ter. minate the interview at any time. We overrule this con. tention. The state’s evidence was that the defendant was told on each occasion before he was interrogated that he had the right to remain silent, that anything he said could and would be used against him in a court of law, that he had a right to have an attorney with him during any inter. view, and that if for some reason he could not provide his own attorney one would be provided. He also was asked if he had any questions about the warning and if he under. Stood these four points. Miranda v. Arizona, 384 Us. 436, 86 S.Ct. 1602, 16 L.Ed. 2a 694, 10 A.L.R. 3d 974, does not require that the warning preliminary to interrogation include the additional Statement that defendant may stop the interview at any time he desires.’”’ State y. Harper, (Mo.) ante at 548. “The Miranda opinion itself does not place explanation of this subsequent right to cease answering questions as being an integral part of the required initial warnings requisite to a valid Waiver.”’ Green y. State, ( Ala.) ante at 246. Miranda as interpreted in People v. Whisenant, supra. required defendant to be warned of his constitutional rights including the right to have counsel. retained or appointed. present during the questioning and the giving of his state- ment, but did not rule so as to require a further warning that the interrogation would cease at his request. Peopli v. Tubbs (Mich.) ante at 624. The petitioner's brief while lengthy in other respects neglects any time chronology of the detailed events of Mar 16, 1967, the date of his arrest, and his statement of perti- 19 nent facts seems to include only selected items stated ina manner favorable to his claims while at the Same time omitting other vital items not so favorable. Initially it appears undisputed that the petitioner was in no way abused in any manner on that date. The petitioner was arrested at approximately 9:20 a. m. at the State Jail. At this time he was advised of the occasions and had been advised of his constitutional rights om prior occasions. The petitioner had been advised of these rights on prior occasions by police officers, He had also been advised of these rights on prior occasions by court judges. The prior criminal experience of a defend- ant may be used to help establish that constitutional warn- ings were understood because they had been received be- fore in other cases and at other times. State v. Collins, (Wash.) 446 P.2q 325, 327; Thessen y. State, (Alaska) tH P.2d 341, 351: People v. Pierce, 67 Cal. Rep. 438, 441; Vash v. State, (Texas) 477 S.W.24 597; People vy. H iggins, 0 Tl. 2d 221, 278 N.E.2d 68, 71; Mingo vy. People, (Col.) 68 P.2d 849, 852; State y. Devoe (Mo.) 430 S.\W. 2d 164, 67; Heard y. State, 244 Ark. 44, 424 S.W.24 179, 181, The record discloses that in an auto on the way to the olice station the petitioner stated: «T didn’t kill the man | the hotel.’ After being advised that he was charged with the murder the man in the Green Apartments the petitioner stated - Dh, that’s different. Now I know what you are talking out. ’? Quite clearly and not by the wildest stretch of the imag- ition was the petitioner being interrogated when he ij ; : 20 made those initial statements. An almost identical sity tion was judicially approved in the recent decision of Sta v. Arnold (Oregon) 492 P.2d 919. Inside the police station the petitioner was readvis of the same constitutional rights and the usual Bridgepo police department’s written constitutional rights form w; read and executed by him. At that time he was also asked if he understood tl rights form and answered yes and then signed it. Aft. the petitioner signed the form he was further advised } Bridgeport Police Lieutenant Fabrizi that he (the pet tioner) did not have to make any statement because th police already had everything they required regarding th murder, and related their information of his involvemen within the apartment of the deceased. When the lieutenan mentioned removing fingerprints from the refrigerator th petitioner stated: ‘I didn’t do that, the other man did.’ Again at the time of this admission the petitioner ha not been asked one single question and clearly was not th subject of the ‘‘seeret interrogation process.”’ ef. Miranda Vv. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed. 24 694. Again as the petitioner offered his initial description of the assault upon Batista Carbone the record does not re- flect a single question being propounded to him but an additional admonition from the lieutenant not to volunteer any information. Following his initial admission to being in the Carbone apartment and assaulting the gentleman the petitioner was At the non-jury hearing on the admissibility of his statements the petitioner testified under oath that it was not his signature on the notifications of rights form and that the signature was a forgery. During the trial the defendant admitted under oath that the signa- ture was his and was not a forgery. 21 processed for normal booking procedures and Lieutenant Fabrizi directed his attention to other detective bureau matters not associated with the petitioner. At approxi- mately 11:30 a.m. the petitioner requested permission to eall his grandmother and indicated a desire to eall his lawyer. At that time it again appears that he was given a telephone and advised by the officers that he could eall anyone he wished and again advised that he didn’t have to tell anything to the police. The most recent decision of U.S. v. Brown, 457 F.2d 731 involved a defendant’s conversation with police officers under circumstances strikingly similar to the Cobbs situa- tion and although the Suspect made three unsuccessful at- tempts to reach his attorney by telephone his conversation was completely admissible and constitutional with the court holding that an unsuccessful attempt to reach an attorney did not indicate a desire to remain silent and the police should not have construed it as such. 99 Again it clearly appears that this was just not the ‘‘inter- rogation process’’. ef Miranda v. Arizona, ante, at 469. The petitioner’s grandmother arrived shortly after noon and spoke with the petitioner in an interview room. As the petitioner and his grandmother were leaving the interview room and in the obvious presence of the officers the grandmother told the petitioner, ‘‘I know you don’t believe in God, but you should tell the truth. You had no vv business going there. Why did you go there?”’’ At that time the petitioner in the presence of the officers replied to the grandmother, ‘‘ We went there to mug a man, and he is dead or he is killed’’, Again the statement was just not any part of the police interrogation encompassed by Miranda. Quite clearly admissions made by a defend- ant during a conversation with a relative or friend are clearly not the product of an interrogation within the pur- view of the Miranda decision. Soolook vy. State (Alaska) 447 P.2d 55, 60; State v. Peck, (Mo.) 429 S.W.2d 247, 251; Edgington vy. State, 243 Ark. 10, 418 S.W.2d 637, 63s; State v. Chaplin, (Maine) 286 A.2d 325, 333, (reversed on other grounds) ; Gallegos v. State, (Nevada) 446 P.2d, 656, 657. At that time and again without question or interrogation the petitioner stated to Lieutenant Fabrizi: ‘*I will tell you what went down.’’ He proceeded to voluntarily relate his version of the events which occurred on the evening of August 27, 1966 again without interrogation or significant question. The State concedes that all statements uttered by the petitioner on May 16, 1967 were made while he was in police custody but at the same time it emphatically denies that any individual statement or comment was the result of the ‘‘police interrogation process.”’ Clearly statements which are not made in response to questioning initiated by law enforcement agents are admis- . — Sse tI 3 2 f sible even without any Miranda warnings. Miranda v. 3 Arizona, ante at 478; United States v. Wolff, 409 F.2d 413, E 417, certiorari denied 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 5 108; United States v. Angello, 452 F.2d 1135, 1139; U. S. tb v. Bekowies, 432 F.2d 8, 11 (reversed on other grounds) ; : State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157, 164; ‘*Even though in custody, voluntary statements made to police officials not the result of interrogation are admissible in evidence and are not in violation of Miranda requirements.’’ Gibson v. State (Oklahoma) 476 P.2d 362, 365. Clearly a statement is completely voluntary in the Miranda context even if some questions may be asked as long as the questions are neutral and intended to clarify and are not designed to expand the scope of the statement the witness wants to make. Smith v. Peyton, 295 F. Supp. 1379; People v. Sunday, 76 Cal. Rep. 668, 673; People v. Mercer, 64 Cal. Rep. 861, 864. The State emphatically submits that the defendant’s total failure to brief the details of the defendant’s admis- sions is a knowing calculated effort to avoid them, and urges this court that the defendant ‘‘was no inexperienced youth, unknowing in the ways of the world, nor a stranger to the technique of a police interrogation.’’ State v. Col- lins, ante, at 327. Quite clearly the defendant volunteered his comments without any interrogation whatsoever. ‘‘Under Miranda, however, statements volunteered by a defendant, even though in custody, free from inter- rogation or other coercion, are still admissible regard- less of the absence of warnings of rights. Miranda, 384 U.S. 478, 86 S.Ct. 1602.’ Klampert v. Culp, 437 F.2d 1153, 1154. ‘*Any statement given freely and voluntarily without any compelling influences is, of course, admissible in 24 evidence. The fundamental import of the privilege while an individual is in custody is not whether he ean talk to the police without the benefit of warnings and counsel, but whether he can be interrogated . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissability is not affected by our holding today.’’ Miranda v. Arizona, ante, at 478 (emphasis added). CONCLUSION The State of Connecticut respectfully represents that there is no constitutional issue raised by this case and urges this Court to deny the Petition for Certiorari. Respectfully submitted, Donatp A. Browne, State’s Attorney for Fairfield County Attorney for Respondent Ph AE PEL OR ARE INET IRE So RRR ERE oe ree --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0628%3A1. Public record. Not legal advice.