Opposition Brief — Massachusetts v. Seng

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IN THE

AUG ES 2%

SUPREME COURT OF THE UNITED STATES ee

NO. 02-144 +°\

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

¥.

VUTHY SENG,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The respondent in the above-entitled case moves that the

Court allow him to proceed in forma pauperis, pursuant to 28

U.S.C. §1915(a). Respondent has previously been granted leave

to proceed in forma pauperis in the Massachusetts Superior

Court and the Massachusetts Supreme Judicial Court.

Respondent's affidavit in support of this motion is attached

hereto.

VUTHY SENG

By his attorney,

[ Lt te a

Brownlow M. Speer

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

Counsel of Record for the Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 02-144

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

V.

VUTHY SENG,

Respondent

RESPONDENT'S AFFIDAVIT IN SUPPORT OF MOTION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, Vuthy Seng, am the respondent in the above-entitled

case. In support of my motion to proceed without being

required to prepay fees, costs or give security therefor, I

state that because of my poverty I am unable to pay the costs

of this case or to give security therefor; and I believe I am

entitled to redress.

I further swear that the responses I have made to the

questions and instructions below relating to my ability to pay

the cost of proceeding in this Court are true.

1. Are you presently employed? Yes No ~

a. If the answer is yes, state the

amount of your salary or wages per

month and give the name and address

of your employer.

b. If the answer is no, state the date

of your last employment and the

amount of the salary or wages per

month which you received.

Joly \442 - $ GO ( MONTH

NO. 02-144

IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

¥s

VUTHY SENG,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BROWNLOW M. SPEER

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

Counsel of Record for the Respondent

QUESTION PRESENTED

The respondent is dissatisfied with the statement

of the "Question Presented" for review by the peti-

tioner as being "[w]hether an inadequate recitation of

the Miranda rights can be cured by a second proper

recitation of those rights to permit a voluntary waiver

of a defendant's Fifth Amendment rights?"

This case does not involve that question, because

the Supreme Judicial Court of Massachusetts ("SJC")

does not hold in this case that an inadequate recita-

tion of the Miranda rights cannot be cured by a second

proper recitation of those rights. On the contrary, it

indicates in the margin of its opinion that subsequent

correct recitations of Miranda rights can cure an

inadequate first recitation. See Commonwealth v. Vuthy

Seng, 436 Mass. 537, 546 n.6, 766 N.E.2d 492, 500 n.6

(2002) (App. 12-13). The SJC holds here that where the

particular circumstances of the case are such that the

defendant would be confused by the discrepancy or omis-

sion, a waiver so obtained is not voluntary. Id. at

547, 766 N.E.2d at 500 (App. 13). Accordingly, the

"Question Presented" should properly be stated as follows:

Whether, where two sets of

Miranda warnings are given and one

is defective or incomplete, and the

circumstances are such that the

defendant would be confused by the

discrepancy or omission, a waiver

so obtained is not voluntary.

TABLE OF CONTENTS

ey A a ty 8 ye Sa eae ee ee ee ee ee

EME MTES CE EMU Ge eek a hoe cee ewe ee eee ee eee

ARGUMENT

A. THIS CASE DOES NOT PRESENT ANY

QUESTION LEFT OPEN BY THIS COURT

a Dee V+ BARR ow we re eee em eees

ean THERE WAS NO CORRECTION OF THE

RADICALLY DEFECTIVE MIRANDA

WARNINGS ADMINISTERED TO THE

DEFENDANT IN THE KHMER LANGUAGE.......

i > THE RULE APPLIED BY THE MASSACHU-

SETTS SUPREME JUDICIAL COURT IN

THIS CASE IS ENTIRELY IN KEEPING

WITH THIS COURT'S MIRANDA

SURAT CKD ees e reed eer cts eeeees

ee soe A ee a ee ae ee ee ere a ee re

te

TABLE _ OF AUTHORITIES

Cases

Colorado v. Spring,

OTe. ew OE SEE TE «5460S as hee keen ee ee eRe

Commonwealth v. Scott,

430 Mass. 351,

eto me ee 8) ee ee er rare

Commonwealth v. Vuthy Seng,

436 Mass. 537,

Tae ace Gee. COO! «6 645 6 son cae ew ea eens

Duckworth v. Eagan,

oe Pe ee . ) ee ee ee ee ee

Eagan v. Duckworth,

843 F.2d 1554 (7th Cir. 1988),

COGS, Soe Oxtw BOO Te bw ha bbe Heese

Fare v. Michael C.,

SO ies Per SEPT 60 5 4s 04 NS Se eRe KS eee Oe

Miranda v. Arizona,

a ae et eee es ee ee ee ee

Moran v. Burbine,

Se Wis Bae PROOREY ks 58s 6404 e ewe eh ane Cees

Other Authority

2W.R. LaFave & J.H. Israel,

Criminal Procedure §6.8(c) (2d ed.

STATEMENT OF THE CASE

The respondent is dissatisfied with portions of

parts 2(B) and 2(C) of the petitioner's Statement of

Facts, as follows:

In part 2(B), the petitioner asserts that the

respondent "taught other Cambodians how to speak

English...." (Petition for Writ of Certiorari [herein-

after "Petition"] 5) This implies a far greater com-

petence in the English language than the respondent has

been shown to possess, and is unsupported by anything

in the motion judge's findings of fact or the record

evidence. The closest the motion judge's findings come

to this point is the finding that "there was evidence

that defendant had in the past assisted another

Cambodian in learning to speak English more clearly."

(App. 39) That finding does not support the quoted

statement in the petition for certiorari.

The respondent is also dissatisfied with part 2(B)

because, although the petitioner concedes that the

Khmer version of the warnings required by Miranda v.

Arizona, 384 U.S. 436 (1966), was inaccurate (Petition

5), the petitioner omits to mention any of the ways in

which the Khmer version was inaccurate. A reading of

the opinion of the Massachusetts Supreme Judicial Court

("SIC") shows that there were numerous inaccuracies

in the Khmer version which rendered it radically

defective: (1) the respondent was not advised of his

‘right to remain silent; (2) four of the warnings

implied that he was obligated to answer the questions

of the police if he was able to do so; (3) he was not

advised that anything he said could be used against him

in court; and (4) he was not informed that a lawyer

would be appointed for him if he could not afford one,

only that "they can help find one for you." Common-

wealth v. Vuthy Seng, 436 Mass. 537, 544-545, 766

N.E.2d 492, 498-499 (2002) (App. 10-11).

In part 2(C) of the petition, the petitioner

states that the inadequate Khmer warnings were

immediately followed by proper warnings in English.

(Petition 6) The petitioner then summarizes the SJC's

conclusion as being

that the discrepancies between the

two sets of warnings would only

serve to confuse Seng and render

his statements involuntary for

purposes of the Fifth Amendment.

App. 13-15. In other words, the

SJC found that repeating the

warnings in English, albeit proper

in content, essentially integrated

the erroneous Khmer warnings into

the English version. App. 15....

(Petition 6 [emphasis added] )

The petitioner's paraphrase of the SJC's conclu-

sion materially distorts that conclusion. It does this

by omitting the key fact which led the SJC to find that

the discrepancy between the twc sets of warnings was

necessarily so confusing as to render impossible any

knowing waiver of Miranda rights. The fact omitted by

the petitioner is that, before administering the

Miranda warnings in English, the Khmer-speaking officer

told the respondent that what he was about to hear "in

English ... [would be] essentially a repetition of what

had just been stated in Khmer...." Commonwealth v.

Vuthy Seng, 436 Mass. at 547, 766 N.E.2d at 500-501

(App. 15). The SJC stresses the centrality of this

fact in its conclusion by reprinting in the margin of

its opinion the pertinent line of questioning at the

motion hearing in its entirety:

DEFENSE COUNSEL: "Did you tell

him, I'm going to read it to you in

English now?"

WITNESS [OFFICER TOUN]: "Yes, I

did."

DEFENSE COUNSEL: "Basically you

told him that what you just read

him in Khmer you're now going to

read in English."

WITNESS: "I'm going to read in

English, correct."

DEFENSE COUNSEL: "So, he's

already heard--what you told him in

English, he'd already heard in

Khmer."

WITNESS: "Right."

DEFENSE COUNSEL: "And you told

him that."

WITNESS: "Yes, sir."

Commonwealth v. Vuthy Seng, 436 Mass. at 547 n.8, 766

N.E.2d at 500 n.8 (App. 14-15).

It was Officer Toun's anticipatory "[c]haracterizing"

of the reading of the rights in English as essentially

a repetition of what had just been stated in Khmer, not

the English-language reading itself, which the SJC held

to have "essentially integrated the erroneous Khmer

warnings into the English version." Id. at 547, 766

N.E.2d at 500-501 (App. 15).

ARGUMENT

a.

THIS CASE DOES NOT PRESENT ANY QUESTION LEFT OPEN BY

THIS COURT IN DUCKWORTH V. EAGAN.

The petitioner says in his first argument that

"(ijn Duckworth v. Eagan, 492 U.S. 195 (1989), this

Court had the opportunity to answer the question

presented in this case" but "did not do so because it

ruled for the State on different grounds." (Petition 7)

This is not so. The petitioner's claim rests on a

misstatement of the holding of the United States Court

of Appeals for the Seventh Circuit in the decision

under review by this Court in Duckworth.

The petitioner recites the pertinent procedural

history of the Duckworth case as follows:

In Duckworth, the defendant was

twice given his Miranda rights, but

the first version stated that

counsel will be appointed "if and

when you go to court." Id. at 197.

The defendant argued that the

language of the Miranda rights

administered to him was defective

because it failed to provide a

clear and unequivocal warning of

the right to appointed counsel

before interrogation. Id. at 199-

200. The United States Court of

Appeals for the Seventh Circuit

agreed and concluded that the first

inadequate warning could not be

cured by a second proper warning.

Id. at 200; 843 F.2d 1554, 1558

(CA7 1988). This Court granted

certiorari, reversed and found that

the first warning was adequate

under Miranda. Duckworth v. Eagan,

492 U.S. at 205. That decision

leaves open the question presented

in this case.

(Petition 7)

Contrary to the representation of the petitioner

in the above-quoted passage from its petition for

certiorari, the Seventh Circuit did not "conclude []

that the first inadequate warning could not be cured by

a second proper warning." As the opinion of this Court

in Duckworth makes clear, the Seventh Circuit "thought

it necessary to remand this case for consideration of

whether respondent's second statement [made after a

second proper statement of Miranda warnings, see 492

U.S. at 198-199] was tainted by the first warnings."

Duckworth v. Eagan, 492 U.S. at 205. See also Eagan v.

Duckworth, 843 F.2d 1554, 1558 (7th Cir. 1988), rev'd,

492 U.S. 195 (1989).

Just as the Seventh Circuit in Duckworth did not

hold that "the first inadequate warning could not be

cured by a second proper warning," the Massachusetts

SJC did not so hold in this case. In the margin of its

opinion, the SJC cites one of its prior decisions

holding that subsequent correct recitations of Miranda

rights cure an inadequate first recitation. Common-

wealth v. Vuthy Seng, 436 Mass. at 546 n.6, 766 N.E.2d

at 500 n.6 (App. 12-13), citing Commonwealth v. Scott,

430 Mass. 351, 354, 718 N.E.2d 1248 (1999). In another

locus in the margin, the SJC essentially adopts the

opinion of two noted scholars of the criminal law that

a complete second warning ordinarily suffices to cure

an inadequate first warning, with the qualification

that "if the conflict between the two is such that the

suspect would be confused by the discrepancy, then a

contrary result is necessary." Commonwealth v. Vuthy

Seng, 436 Mass. at 547 n.7, 766 N.E.2d at 500 n.7

(emphasis omitted) (App. 14), quoting from 2 W.R.

LaFave & J.H. Israel, Criminal Procedure §6.8(c) (2d

ed. 1999).

ee

THERE WAS NO CORRECTION OF THE RADICALLY DEFECTIVE

MIRANDA WARNINGS ADMINISTERED TO THE DEFENDANT IN THE

KHMER LANGUAGE.

The petitioner complains in its second argument

that "[e]ffective law enforcement should not have to

suffer when, in the absence of bad faith, a suspect is

improperly advised of his rights and that error is

immediately corrected." (Petition 8) This complaint

ignores the fact that the SJC's opinion in this case

turns on the indisputable fact that the error was not

corrected. On the contrary, it was "reinforc[ed]" by

"the officer's indication that he was going to repeat

in English what had already been said in Khmer...."

Commonwealth v. Vuthy Seng, 436 Mass. at 547-548, 766

N.E.2d at 501 (App. 15).

ee

THE RULE APPLIED BY THE MASSACHUSETTS SUPREME JUDICIAL

COURT IN THIS CASE IS ENTIRELY IN KEEPING WITH THIS

COURT'S MIRANDA JURISPRUDENCE.

The petitioner insists in its third argument that

"[b]y finding that an inadequate recitation of the

Miranda rights cannot be cured by a second proper

recitation of those rights, the SJC created an unneces-

sarily rigid and mechanistic rule." (Petition 8)

However, as already pointed out in part I of this

Argument, ante, the SJC did not make any such finding,

but rather stated the reverse of that proposition in

the margin of its opinion. See Commonwealth v. Vuthy

Seng, 436 Mass. at 546 n.6, 766 N.E.2d at 500 n.6 (App.

12-13).

The rule applied by the SJC in this case is

neither "rigid" nor "mechanistic," but rather is

entirely fact-specific. It is "that where two sets of

warnings are given and one is defective or incomplete

and the circumstances are such that the defendant would

be confused by the discrepancy or omission, a waiver so

obtained is not voluntary." Commonwealth v. Vuthy

Seng, 436 Mass. at 547, 766 N.E.2d at 500 (App. 13).

This rule is simply an application of the "totality of

the circumstances" test for a knowing waiver mandated

by such cases as Fare v. Michael C., 442 U.S. 707, 724-

725 (1979), Moran v. Burbine, 475 U.S. 412, 421 (1986),

and Colorado v. Spring, 479 U.S. 564, 573 (1987).

In its concluding footnoté, the petitioner

characterizes respondent as a person who "teach[es]"

English. (Petition 10) As already pointed out in the

Statement of the Case, ante, this characterization

greatly overstates the respondent's competence in

English and is unsupported by anything in the motion

judge's findings of fact or the record evidence. This

characterization is an impermissible inflation of the

motion judge's finding that "there was evidence that

defendant had in the past assisted another Cambodian in

learning to speak English more clearly." (App. 39).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

5 eae MAS Qe2 i

Brownlow M. Speer

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division

44 Bromfield Street

Boston, Massachusetts 02108

(617) 482-6212

Counsel of Record for Respondent

Dated: August 23, 2002.

2. Have you received within the past twelve

months any income from a business, profession

or other form of self-employment, or in the

form of rent payments, interest, dividends,

or other sources? Yes No vas

a. If the answer is yes, describe each

source of income and state the amount

received from each during the past

twelve months.

3. Do you own any cash or have a checking or

savings account? Yes No

a. If the answer is yes, state the total

value of the items owned.

4. Do you own any real estate, stocks, bonds,

notes, automobiles, or other valuable

property (excluding ordinary household

furnishings and clothing)? Yes No

a. If the answer is yes, describe the

property and state its approximate

value.

5. List the persons who are dependent upon you

for support and state your relationship to

those persons. IN 0 N C

I declare under penalty of perjury that the foregoing is

true and correct. Executed on August Q1, 2002.

Utigbeng

Vuthy Seng