Opposition Brief — Stavola v. New Jersey

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SUP ix LRT, U8 ’

INTHE FEp 25

Supreme Court of the anited Bates

October Term, 1973

No. 73-1110

MICHAEL J. STAVOLA,

Petitioner,

v.

STATE OF NEW JERSEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

WILIAM F. HYLAND

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR PLAINTIFF-RESPON DENT

STATE OF NEW JERSEY

STATE HOUSE ANNEX

TRENTON, NEW JERSEY 08625

JOHN DE CICCO

DEPUTY ATTORNEY GENERAL

IST ASST., APPELLATE SECTION

DIVISION OF CRIMINAL JUSTICE

APPELLATE SECTION

7 GLENWOOD AVENUE

EAST ORANGE, NEW JERSEY 07017

OF COUNSEL AND ON THE BRIEF

LEGAL MIMEOGRAPHING SERVICE. INC.

561 Broad St., Newark, N. J. (201) 643-4292 s

Se A RR RE ER NIN EEA AAS es meanest

TABLE OF CONTENTS

PAGE

Counter-Statement of the Case............... 1

Argument

Point! The Defense of Entrapment Is Not

of Constitutional Dimension and

the Police Conduct In This Case

Comported With The Due Process

Clause of the Fourteenth Amend-

NG ts Wa ae ek sw Sw a km ed 6

Point II Petitioner's Various Motions for

Severance Were Properly Denied

and He Suffered No Irreparable

Se ee 10

A a 12

CASES CITED

° Crisp v. United States, 262 F.2d 78 (4 Cir. 1958] .. . 9

Dutton v. Evans, 400 U.S. 74 RE eee 11

Polski v. United States, 33 F.2d 686 (8 Cir.), cert.

denied 2860 U.S. 591 (1929)................ 9

Sherman v. United States, 356 U.S. 369 (1958)... ... 7

Sorrells v. United States, 287 U.S. 345 aaa 7

State v. Dolce, 41N.J. 422, 430-32 (1964)........ 7

State v. Rios, 17 N.]. 372 (1955).............. 11

State v. Yormark, 117 N.J. Super. 315 (331, 332){ App.

Div. 1971), certif. den. 60 N.J. 138 (1972), cert.

den. 408 U.S. 925 (1972)................. 10

United States v. Comi, 336 F.2d 856 (4 Cir.), cert.

den. 379 U.S. 992 (1964)................. 9

United States ex rel. Hassell v. Mathues, 22 F.2d

OOGLS. Pa. My. ................... 8.9

CASES CITED (Continued)

United States v. Kosterman, 248 F.2d 191

Se I nbc acs ares Wes ee kes

United States v. Perkin, 190 F.2d 49 (7 Cir. 1951)...

United States v. Romana, 278 F.2d 202, 204

ge Gah, Bina Ae Geir senate Se an pee

United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637

5. RRP Cepop rie nas 20 ry yt on al ge, SOC era e

UNITED STATES CONSTITUTION CITED

Ps SS so a ce are ee baw eels

eee I . . . ac otk abe kare ae ee

NEW JERSEY RULES OF EVIDENCE CITED

i le a ee ee ear oi tater eee

OTHER SOURCES CITED

Note, 45 B.U.L. Rev. 542, 563-64 (1965)........

Orfield, ‘‘The Defense of Entrapment in the Federal

Courts.”° 1987 Duke L.J. 30, 45... es cceces

Donnally, ‘*Judicial Control of Informants,"’ 60 Yale

he ee ee ae ee

Garland and Snow, “The Co-conspirators Exception

to the Hearsay Rule: Procedural Implementation

and Confrontation Clause Requirements,"* 63

Ae ae iS Se eae

_

| ee

IN THE

aon

: SUPREME COURT OF THE UNITED STATES

October Term, 1973

No. 73-1110

MICHAEL J. STAVOLA,

Petitioner,

v.

STATE OF NEW JERSEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

i COUNTER - STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 30-3, Respondent, the

State of New Jersey, respectfully submits, in addition to

: Petitioner's Statement of the Case, the following factual

recitation in order to present an accurate and concise view

of the matter involved herein.

i Petitioner, Michael ]. Stavola, was indicted by the Mon-

mouth County Grand Jury on charges of assault and battery

i on a police officer and ostructing a police officer in the

execution of his official duty. The convictions, which are

the subject matter of the within petition, are the result of an

attempt to influence the prosecution of the aforementioned

indictment.

Petitioner Stavola and co-defendant Joseph Martinelli

were indicted by the State Grand Jury and charged with the

offenses of conspiracy, attempting to induce a State Police

Officer to engage in misconduct 1n office bribery of said

2: he, UOT MEER oh nist,

State Trooper and obstruction of justice. Petitioner Stavola

was found guilty of bribery and obstruction of justice and

acquitted on the remaining counts. The jury also found co-

defendant Martinelli guilty of inducing misconduct in office,

as well as bribery and obstruction of justice.

Petitioner does not controvert the fact that he gave a

New Jersey State Trooper $5,000 in order to influence the

outcome of the then pending indictment charging assault and

battery and interference with a police officer. Rather, it is

claimed that Petitioner's alleged entrapment defense entitled

him to an acquittal as a matter of law. Indeed, it is here

asserted that the police conduct was so outrageous as to

constitute a violation of due process. The facts of this case

belie such a contention.

Detective James Sweeney of the New Jersey State Police

was the central figure in Petitioner's attempt to influence

the outcome of the pending criminal litigation. Sweeney's

first inkling of what was to transpire occurred during a con-

versation with co-defendant Martinelli on December 17, 1970.

During that conversation Martinelli euologized co - defendant

Stavola. Martinelli informed Sweeney that if anyone could

help Stavola he would be able to ‘‘write (his) own ticket."’

Subsequent to this conversation, Trooper Sweeney was

equipped with an on-body recording device and other re-

cording equipment in order to preserve the substance of later

conversations between himself, Petitioner Stavola and

Martinelli.

On the evening of December 17, 1970, Sweeney conversed

by telephohe with Martinelli. During this conversation Mar-

tinelli indicated, ‘‘No listen, if you could do something on

that old buddy, I'll light a candle for you every moming."’

Martinelli introduced Sweeney to Petitioner Stavola on

the following day, December 18, 1970, at a restaurant located

in North Brunswick, New Jersey. Martinelli allegedly informed

Stavola that Sweeney was ‘“‘with the confidential squad or

something like that."’ Stavola then related his version of the

events leading to his indictment and its aftermath. The fol-

lowing portion of the conversation is most relevant in deter-

mining Stavola’s predisposition and intent to commit the

offenses charged:

Sweeney: ...1 can’t promise you nothing, that’s

all I can say.

Stavola: That's all you can say.

Martinelli: Mike, Mike, I told him whatever it is let

me know, you know what! am talking about.

Stavola: It's just half-assed all the way down

the line but it’s gotten to the stage.

{laugh}

Sweeney: Look, you've gotten to the stage right

now where your (sic) going to have todo

something.

Stavola: Allright.

Sweeney: Is it all right with you with the arrange-

ments | made with him then?

Stavola: Whatever.

Martinelli: / told him uhatever itis to let me know.

Stavola: } eah. (emphasis supplied)

Martinelli telephoned Sweeney on January 7, 1971, in

order to ascertain what progress, if any, had been made in

attempting to ‘‘fix’’ Stavola's case. Sweeney indicated that

he was making progress. Martinelli again telephoned Sweeney

on J anuary 23, 1971 and inquired as tohis progress in ‘‘fixing"’

the case. Sweeney stated that he could not talk at that

juncture. Again, on February 12, 1971, Sweeney received a

call from Martinelli. Sweeney requested a meeting with

Martinelli and Stavola.

On February 23, 1971, Martinelli telephoned Sweeney and

*‘reveals for the first time an interest jin personally bene-

fiting monetarily from this deal.’* Pa8.

1, *“Pa” refers to Petitioner's appendix.

Pac rcs)

NG ELS TN PE

A meeting was arranged for later that day at the Carriage

House Restaurant. At this meeting Martinelli indicated that

he had had some difficulty with Stavola because he had not

received a Christmas bonus. Martinelli then informed Sweeney

that the money to fix Petitioner Stavola's case would come

from the principal, ¢.e., Stavola. He further noted that Sta-

vola was aware of the arrangements and had requested Mar-

tinelli to meet with Sweeney.

On Febmary 25, 1971, Sweeney and Martinelli again met

in the parking lot of the Carriage House Restaurant. ‘*Mar-

tinelli appeared to be prompting Sweeney to impress Stavola

with the seriousness of the situation...."" Pa8. The prompt-

ing seemed ‘‘to be the result of Martinelli's desire to jack

the price up so that he and Sweeney could skim a profit out

of the deal." Pa9

At the conclusion of the conversation Martinelli entered

the restaurant and returned with Stavola. Sweeney indicated

to Stavola the seriousness of his situation, a potential ethnic

bias and the alleged penalty attached to the offense in ques-

tion. Stavola and Sweeney then discussed the price for fix-

ing the former's case. It was agreed that they would meet

the following day at the Holiday Inn in Princeton, New Jersey.

The following day Stavola and Sweeney met and conversed

in the parking lot. During that conversation petitioner Stavola

said:

Stavola: Gee, yeah, here, here's the thing, I feel this,

I do alot of business with a different jobs and they,

they cross a few bucks here and there, its a way of

life and I'd rather have it, like with me and you but

when I leave you. (emphasis supplied)

Stavola and Sweeney then haggled over the amount of

money that he, Stavola, would pay. Stavola agreed to pay

$5,000 for the judge, $5,000 for a prosecutor and $5,000 for

the ‘‘middle man."' Stavola then continued by stating that:

‘*Stavola: —(inaud), they only know me as Mike Sta-

vola and nothing else and | couldn't begin to tell ya

of my other deals that I've had in other than my word

i

: PED AR RE HORS Faxes ToS etree tate tg aii 4- ES REE Oe Nt ane Sa NSERC Mae ER Ee her or es a

ts seal

is bond, I'll tell ya what I'll do witn ya before I leave

tonight I'll give you five."" Pa9 and 10.

Sweeney and Stavola met that evening at the Colts Neck

Inn. Petitioner Stavola gave Trooper Sweeney $5,000 and

then left the scene.

At the trial, Sweeney affirmatively stated that he did not

refuse, or accept Martinelli’s offer to help Stavola out of his

difficulties since, ‘‘if it were in fact a bribe offer I would

have pursued it in hopes of arresting him for attempting to

bribe a State Trooper."' (IT229-4 to 6). Throughout the trial

Sweeney never deviated from the fact that he was playing the

role of a ‘‘crooked cop’’ and that he was attempting to ascer-

tain if Stavola was in fact seeking to have his case ‘‘fixed.”’

(IT293-8 to 12; IT399-1 to 11; IT539-17 to 20).

On the basis of the foregoing facts, Petitioner was con-

victed of bribery and obstruction of justice. The convictions

were affirmed by the New Jersey Superior Court, Appellate

Division on August 3, 1973. The New Jersey Supreme Court

i denied Certification on October 2, 1973. Thereafter, Peti-

tioner filed a petition for writ of certiorari to the Appellate

Division, Superior Court of New Jersey.

4 188 Me eR ORE ES AACS AEE INARA LY TL ISERIES AN RULERS EI EA

ARGUMENT

POINT I

THE DEFENSE OF ENTRAPMENT IS NOT OF

CONSTITUTIONAL DIMENSION AND THE POLICE

CONDUCT IN THIS CASE COMPORTED WITH THE

DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT.

Despite its recent vintage Petitioner implores this Court

to reverse its well considered opinion of United States v. Rus-

sell, 411 U.S. 423, 93 S.Ct. 1637(1973). The Petitioner urges

that this Court wrongly decided Russell by finding that the de-

fense denominated as ‘‘entrapment’’ is not of constitutional

magnitude, and therefore, inapplicable to the states through

the due process laws of the Fourteenth Amendment. The

only inference which may be gleaned from the question pre-

sented by Petitioner is that, in his view, this Court hastily

decided Russell and is now predisposed to overturn its hold-

ing barely nine months after its rendition. The State of New

Jersey submits that the issue raised by Petitioner obviously

lacks merit, especially in view of the fact that it has been

recently decided adversely to him by this Court. In addition,

as this Court indicated in Russell, the defense of entrapment

has no nexus to any of the enumerated amendments contained

in the Bill of Rights and should not be subsumed therein.

Lastly, the conduct in the instant case was compatible with

the dictates of the due process clause of the Fourteenth

Amendment.

Petitioner's principle contention is that the defense of

entrapment should be incorporated within the Fifth Amend-

ment’s due process provision and made applicable to the

states through the Fourteenth Amendment. It would then

necessarily follow, according to Petitioner, that the states

would be compelled to enter judgments of acquittal in those

cases where govemment agents or police officers unduly en-

meshed themselves in a criminal enterprise. This strained

interpretation of the Bill of Rights was laid to rest in United

States v. Russell, supra. There this Court rejected the con-

tention advanced herein that the defense of entrapment is

constitutionally grounded in the due process clause of the

SNP RO RR. SYS ELE THAT AMMAN ENTIRE RE HED EE NM TNA EIN

Fifth Amendment. 92 S.Ct. at 1642 and 1643. In response to

the contention that the exclusionary rule should be applic-

able to entrapment situations the Court held:

**But he would have the Court go further in deterring

undesirable official conduct by requiring that any

prosecution be barred absolutely because of the po-

lice involvement in criminal activity. The analogy is

5 imperfect in any event, for the principle reason behind

the adoption of the exclusionary rule was the govern-

ment’s ‘failure to observe its own laws.’ (citation

omitted). Unlike the situations giving rise to the

holdings in Wiranda, the government's conduct here

violated no independent constitutional right of the

respondent."’ 93 S.Ct. at 1642.

Thus, the defense of entrapment is not of constitutional

magnitude.

Petitioner also seeks to broaden the defense of entrap-

ment so that it would be made applicable to the states when

it is found that the criminal conduct would not have been

possible had not the government actively participated in the

transaction. Again, Russell is dispositive. There this Court

declined to overrule Sherman v. United States, 356 U.S. 369

(1958) and Sorrells v. United States, 287 U.S. 345 (1932).

Those cases established the well-settled doctrine that a de-

fense of entrapment would only succeed where it may be

shown that the defendant did not possess the requisite pre-

disposition to commit the crime. Predisposition, and not gov-

ernmental participation, is the test. The courts of New Jersey

have adopted the Sherman and Sorrells criteria for determining

the viability of an entrapment defense. See State v. Dolce,

41 \./. 422, 430-32 |1964). Thus, the defense of entrapment

is not of constitutional dimension, and therefore is not ap-

plicable to the states through the Fourteenth Amendment.

In Russell, this Court opined that it was not inconceiv-

able that on some future date a situation would present itself

where the conduct of law enforcement officials would be so

“‘outrageous’’ that due process would absolutely bar prose-

cution. 93 S.Ct. at 1643. Nevertheless, this Court was unable

Se a a eT a

to find that the conduct in Russell was ‘‘outrageous’’ and

‘*shocking to the universal sense of justice.’ /bid. In Rus-

sell, the Federal Agent had supplied an ingredient essential

to the manufacture of a drug in retum for half of the output.

Defendant was then charged with violation of the drug laws.

In the instant case Petitioner is hardly able to character-

ize the conduct of Officer Sweeney as ‘‘outrageous’’. There-

fore, the sole test to be applied in this case is whether de-

fendant Stavola had the requisite predisposition to commit

the offense in question. The Appellate Division of the Su-

perior Court found that ‘‘while the criminal design may have

originated with Martinelli that design was clearly adopted by

Stavola on December 18, 1970."" Pai2. The factual finding

below conclusively mandates against a finding of entrapment.

Officer Sweeney merely afforded Petitioner Stavola and co-

defendant Martinelli the opportunity to commit the offenses

in question. Russell, supra, 93 S.Ct. at 1644.

Petitioner's agency theory of entrapment must also fail.

Relying essentially on United States v. Klosterman, 248 F.

2d 191 (3 Cir. 1957) and United States ex rel. Hassell v.

Vathues, 22 F.2d 979 (E.D. Pa. 1927), Petitioner has con-

structed an agency theory whereby he seeks to charge the

State of New Jersey with the actions of Martinelli as an

agent of Trooper Sweeney. The argument is founded on the

premise that a third party (Martinelli) can be induced by the

State (Sweeney) to procure the commission of a criminal of-

fense by a particular defendant (Stavola) without the third

party having any knowledge of the government's objective.

Petitioner’s contrived theory is not applicable in this case.

As already noted, it has been found that defendant Sta-

vola adopted Martinelli’s criminal design on December 18,

1970. Therefore, United States v. Klosterman, supra, is fac-

tually distinguishable. In Alosterman, supra, the defendant

had abandoned his original criminal plan. Nevertheless, the

overreaching tactics of the police officials compelled the

defendant to commit a crime he would otherwise not have

committed. In the instant case there is no evidence indica-

tive of Stavola’s abandonment of his criminal design. Pa12.

So too, the holding in United States ex rel. Hassell v. Mat-

ORES TEE MOTTE LDP EE I OE EDI NE EE EE soil

hues, supra, is distinguishable. There it was found that the

crime was wholly manufactured by the Government and that

the government agent was unwillingly induced to entrap de-

fendant. /d. at 479. Here, there is no evidence to establish

that Martinelli was entrapped. Therefore, it was not at the

State's direction that Martinelli approached Stavola. He was

propelled by his own avarice. See: Orfield, ‘‘The Defense of

Entrapment in the Federal Courts,'' 1967 Duke L. J. 39, 45;

and Note, 45 B.U.L. Rev. 542, 563-64 (1965). For other

holdings in the federal courts sustaining the respondent's

view see: United States v. Comi, 336 F.2d 856 (4 Cir.), cert.

den. 379 U.S. 992 (1964); United States v. Romana, 278 F.2d

202, 204 (2 Cir. 1960); Crisp v. United States, 262 F.2d 78

(4 Cir. 1958); United States v. Perkin, 190 F.2d 49 (7 Cir.

1951); and Polski v. United States, 33 F.2d 686 (8 Cir.), cert.

den., 280 U.S. 591 (1929). See also, Donnally, ‘‘Judicial

Control of Informants’', 60 Yale L.J. 1108.

On the basis of the foregoing, the State of New Jersey

submits that the defense of entrapment should not be incor-

Y porated into the Bill of Rights and made applicable to the

state courts through the due process clause of the Fourteenth

Amendment. Further, the law enforcement conduct here

stopped far short of violating ‘‘that fundamental faimess,

shocking to the universal sense of justice’’ mandated by the

due process clause of the Fifth Amendment. Russell, supra,

93 S.Ct. at 1643.

LOR AIR IRE LT ENT EN IHN I I !

POINT ll

PETITIONER’S VARIOUS MOTIONS FOR SEVER-

ANCE WERE PROPERLY DENIED AND HE SUF-

FERED NO IRREPARABLE PREJUDICE.

Petitioner would have this Court grant certiorari on a

totally unsupported assumption that he was denied a fair trial

within the meaning of the due process clause of the Four-

teenth Amendment by the trial court's failure to sever co -de-

fendant Martinelli from the trial. That this contention falls

short of the mark is readily apparent. The claim presented

here is couched in ‘‘due process terms."’ Petitioner, like so

many other litigants seeking relief in the federal courts, has

tagged on to his claim of error the ritualistic label of ‘‘due

process." In fact, the granting of a motion for severance is

a discretionary act with the trial court. Clearly, it is not of

a constitutional hue. The denial of a severance motion will

not warrant a reversal unless it is known that the trial court

has committed a gross abuse of discretion. See State v.

Yormark, 117 N.J. Super. 315 (331, 332) (App. Div. 1971),

certif. den. 60 V.J. 138 (1972), cert. denied 408 U.S. 925

(1972). Therefore, absent a showing that petitioner has suf-

fered a deprivation of his Fifth or Sixth Amendment rights the

question of severance must be left to the state courts.

The crux of Petitioner's severance claim is that the joint

trial caused his entrapment defense to suffer irreparably. It

is asserted that Stavola’s defense was based upon two theo-

ries of entrapment. ‘‘First, that Sweeney entrapped him on

February 25, 1971, when Sweeney said he would make a deal

with the judge and the prosecutor. Second, he was entrapped

by Martinelli, whoas Sweeney's agent, conveyed that Sweeney

would make a ‘deal’ for him."* P14. As has already been re-

lated, the New Jersey Superior Court, Appellate Division

found that Sweeney did not entrap Stavola on February 25,

1971. Rather, the court found that while the criminal design

may have originated with Martinelli, that design was clearly

adopted by Stavola on December 18, 1970 and never abandoned

thereafter. Therefore, both alleged theories of entrapment

are factually precluded. Even assuming that the entrapment

N\

defense was viable, the trial court properly admitted conver-

sations between Martinelli and Sweeney with limiting instruc-

tions sufficient to preclude any prejudice.

Rule 63(9) of the New Jersey Rules of Evidence allows

admission at trial of statements made by a party while parti-

cipating in a plan to commit a crime or civil wrong, so long

as the statement was made in furtherance of that plan. This

Rule is similar to that in many other jurisdictions. See

Garland and Snow, ‘‘The Co-conspirators Exception To The

Hearsay Rule: Procedural Implementation and Confrontation

Clauses Requirements."’ 63 /. Crim. L. and P.S. 1 (1972).

The case law in this jurisdiction and elsewhere afiirms the

use of the co-conspirator exception rule even when a con-

spiracy is not charged. See, e.g., Dutton v. Evans, 400 U.S.

(1970), and State v. Rios, 17 N.J. 372 (1955). Thus, although

the jury returned a not guilty verdict as to the conspiracy

count, Martinelli’s statements as they related to Stavola were

properly admitted. In Dutton v. Evans, supra, this Court held

that the cq-conspirator hearsay exception does not violate

the confrontation clause of the Sixth Amendment. Therefore,

there is no constitutiqal issue as to the admission of these

statements.

As to those statements which did not relate to Stavola,

the trial court on several occasions instructed the jury that

these conversations could only be used as evidence against

Stavola if it was first determined that a conspiracy existed.

In the course of its charge to the jury the court again ‘‘al-

luded to this principle of law.’ See Pai7. Therefore, Mar-

tinelli’s statements as they related to Stavola were properly

admitted under the co-conspirator exception prior to the

jury's determination of whether a conspiracy conviction was

warranted. The trial court's instructions limited the jury to

consideration of these statements only if such a conspiracy

was found to exist

Petitioner lastly complains of the trial court's failure to

give Petitioner Stavola’s requested instruction regarding the

question of whether Martinelli was Trooper Sweeney's agent

for the purpose of passing on the entrapment defense. The

Appellate Division of the Superior Court correctly disposed

of this allegation when it found that the testimony ‘‘clearly

indicates that Martinelli originated the criminal design in

October, 1970; he was not acting on behalf of the State

Police. Cf. United States v. Romano, 278 F.2d 202, 204

(2 Cir. 1960). Martinelli’s criminal activity was adopted by

Stavola no later than December 18, 1970, and was never

thereafter abandoned by him. Hence the trial judge properly

refused the requested instruction."" See Pai2 and 13. Fur-

thermore, since there was ample evidence demonstrating Sta-

vola’s predisposition to commit the crimes charged, the issue

of entrapment was properly submitted to the jury for decision.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should not issue.

Respectfully submitted,

WILLIAM F. HYLAND

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR PLAINTIFF - RESPONDENT

By:

John De Cicco

Deputy Attorney General

First Assistant, Appellate Section

John De Cicco

Deputy Attorney General

lirst Assistant, Appellate Section

Division of Criminal Justice

Of Counsel and on the Brief