i COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SJC-11433 _____________________________ COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee, v. STEVEN J. MORSE, Defendant-Appellant. ______________________________ ______________________________________________________ BRIEF FOR AMICUS CURIAE MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS _____________________________________________________ Monica R. Shah, B.B.O. #664745 Zalkind Duncan & Bernstein LLP 65A Atlantic Avenue Boston, MA 02110 (617) 742-6020 [email protected]
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COMMONWEALTH OF MASSACHUSETTS SUPREME … · COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SJC-11433 _____ COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee, v. STEVEN J. MORSE,
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COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT
SJC-11433
_____________________________
COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,
I. Admission of the Defendant’s Unequivocal Denial Violates Massachusetts’ Long-Standing Common-Law Rule Precluding Such a Statement from Evidence. ......... 4
II. Charging a Criminal Defendant with the Crime of Misleading an Investigator under G.L. c.268 § 13B for His Denial of Accusations that Will Compel Him to Furnish Evidence Against Himself Violates His Rights under Article 12. ................................. 14
III. The Misleading-an-Investigator prong of G.L. c.268 § 13B Is Void for Vagueness As Applied to the Defendant’s Case. ................................. 17
Grayned v. City of Rockford, 408 U.S. 104 (1972).... 19
Kolender v. Lawson, 461 U.S. 352 (1983)............. 18
Lambert v. California, 355 U.S. 225 (1957).......... 21
Lipsitt v. Plaud, 466 Mass. 240 (2013).............. 13
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Opinion of the Justices to the Senate, 412 Mass. 1201 (1992) ............................................................................................................ 16, 17, 18
Passatempo v. McMenimen, 461 Mass. 279 (2012) ............................... 13
Pineo v. White, 320 Mass. 487, 491 (1946) ........................................ 13
Ratzlaf v. United States, 510 U.S. 135 (1994); ............................ 21
United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) ............ 24
United States v. Williams, 553 U.S. 285 (2008) ...................... 18, 20
United States v. Yermian, 468 U.S. 63 (1984) ................................. 24
Constitutional Provisions
Article 12 of the Massachusetts Declaration of Rights .............................................. passim
G.L. c. 90B §8................................... 8, 12
G.L. c. 268 § 13B............................... passim
Other Authorities
Alex Kozinski & Misha Tseytlin, You're (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43 (2009) .................................................. 24
Fred Contrada, Northwestern DA uses new section of witness intimidation law, The Republican (July 10, 2012) ............................................. 22
Whether a defendant can be found guilty of violating G.L. c.268, § 13B, based on his allegedly false denials in response to police questioning about possible criminal activity; whether the statute violates the defendant's rights under article 12 of the Declaration of Rights ("No subject shall be . . . compelled to accuse, or furnish evidence against himself . . . ") or is void for vagueness.
INTEREST OF AMICUS CURIAE
The Massachusetts Association of Criminal Defense
Lawyers (MACDL), as amicus curiae, submits this brief
in support of defendant-appellant Steven J. Morse.
MACDL is an incorporated association representing more
than 1,000 experienced trial and appellate lawyers who
are members of the Massachusetts Bar and who devote a
substantial part of their practices to criminal
Defense.
MACDL is dedicated to protecting the rights of
the citizens of the Commonwealth guaranteed by the
Massachusetts Declaration of Rights and the United
States Constitution. MACDL seeks to improve the
criminal justice system by supporting policies and
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procedures to ensure fairness and justice in criminal
matters. MACDL devotes much of its energy to
identifying, and attempting to avoid or correct,
problems in the criminal justice system. It files
amicus curiae briefs in cases raising questions of
importance to the administration of justice.
MACDL contends that the Commonwealth should not
be permitted to charge defendants like Steven Morse,
who unequivocally deny possible criminal wrongdoing in
response to police questioning, with violations of the
obstruction-of-justice prong of the witness
intimidation statute, G.L. c. 268 § 13B (“§ 13B”).
The statute violates Massachusetts’ long-standing
common-law rule precluding accusations and unequivocal
denials from evidence. The Legislature did not
specifically abrogate this common-law rule, as would
be required, when it amended the statute in 2006 to
criminalize misleading an investigator. (See infra
Part I.)
The enforcement of § 13B against defendants who
unequivocally deny possible use of illegal substances
deprives those individuals of the right under Article
12 of the Massachusetts Declaration of Rights not to
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furnish evidence against themselves. (See infra Part
II.)
The statute’s failure to provide any standard for
the term “misleading” also renders it void for
vagueness, particularly where, as here, the accusation
itself calls for a subjective opinion that cannot be
proven true or false. The expansion of § 13B by the
Legislature, coupled with the inherent vagueness of
the statute, now gives prosecutors discretion to
charge defendants with violations of § 13B by
introducing evidence of accusations and unequivocal
denials that otherwise would be barred by common law.
Given that the legislative history is silent on
whether the Legislature considered the serious legal
and policy implications of the 2006 amendment and
there is no indication that it intended to change the
common law, the obstruction-of-justice prong of § 13B
should be invalidated and Morse’s conviction should be
vacated. (See infra Part III.)
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STATEMENT OF THE CASE
Amicus adopts the Statement of the Case as set
forth in the Appellant’s opening brief.
STATEMENT OF FACTS
Amicus adopts the Statement of the Facts as set
forth in the Appellant’s opening brief.
ARGUMENT
I. Admission of the Defendant’s Unequivocal
Denial Violates Massachusetts’ Long-Standing Common-Law Rule Precluding Such a Statement from Evidence.
It is well-settled Massachusetts law that
”[n]either the prosecution nor the defense can admit a
defendant’s denial of an accusation after warnings.”
See Brodin & Avery, Handbook of Massachusetts Evidence
§ 12.6.8, at 701 (8th ed. 2006). This rule dates back
over a century ago to this Court’s decision in
Commonwealth v. Trefethen, 157 Mass. 180, 197 (1892).
The trial court failed to adhere to the rule here when
it allowed the Commonwealth to improperly use the
defendant’s denial of an accusatory statement against
him on charges of misleading an investigator in
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violation of G.L. c. 268 § 13B, which inevitably
impacted the jury’s consideration of the substantive
homicide charges against the defendant. The trial
court’s ruling undermined the purpose of the rule,
unfairly prejudiced the defendant, and effectively
doubled the punishment against him.
The rationale for the rule is set forth in
Trefethen. There, the day after the victim’s
disappearance, the defendant unequivocally denied to
the victim’s mother her accusation that he met with
the victim on the night of her murder and “carried her
off.” Trefethen, 157 Mass. at 196. The Commonwealth
introduced these statements and other similar denial
evidence in its case-in-chief. Id. at 196-97.
Defense counsel timely objected, but the objections
were overruled and the evidence was presented to the
jury despite the fact that the defendant did not
testify. Id. While the Court ultimately reversed the
case on other grounds and concluded that admission of
this evidence was not prejudicial to the defendant, it
held that, “[i]f a defendant is charged with crime,
and unequivocally denies it, and this is the whole
conversation, it cannot be introduced in evidence
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against him as an admission.” Id. at 197. The Court
explained:
[I]t is not competent for the government to contend that a denial of guilt is of itself evidence against the defendant. To argue that by the other evidence the defendant is shown to be probably guilty, and that therefore his denial of guilt is false, and is additional evidence against him, ought not to be permitted. . . . [W]hen the defendant denies generally that he is guilty, this statement cannot be shown to be false, except by proving that he is guilty beyond a reasonable doubt; and then it is unnecessary. If there is a reasonable doubt of his guilt on all the other evidence, the fact that he unequivocally denied his guilt is not, of itself, evidence against him; and the denial cannot be assumed to be false because it has not been proved to be false by sufficient evidence.
Id. at 199.
Therefore, under the rationale set forth in
Trefethen, the Commonwealth cannot introduce an
unequivocal denial of an accusation as evidence
against the accused at trial for that crime because
the jury has not yet determined that he committed the
crime beyond a reasonable doubt based on other
evidence. In essence, the defendant’s denial of the
accusation is inadmissible hearsay because it is used
to prove both the truth of the accusation and the
falsity of defendant’s denial.
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In Commonwealth v. Cruz, 373 Mass. 676, 691
(1977), this Court further explained the purpose of
the rule:
[T]here are two basic reasons why accusatory questions followed by unequivocal denials are to be excluded from evidence. The first reason rests on the hearsay rule. . . . Accusatory statements and unequivocal denials, when offered as evidence against the defendant for the purposes of proving the Commonwealth's case-in-chief, are simply out-of-court statements offered to prove the truth of the matter asserted. As such, they plainly are hearsay statements which must be excluded. . . . A second subsidiary reason given for the exclusion of accusatory statements followed by unequivocal denials is that the relevance of this type of dialogue may be far outweighed by potential prejudice to the defendant.
Id. at 692 (internal citations omitted) (emphasis
added).
For well over a century, this Court has
repeatedly applied this rule to hold that neither the
Commonwealth nor the defense may introduce accusation
and denial evidence at trial. See, e.g., Commonwealth
v. Spencer, 465 Mass. 32, 49 (2013); Commonwealth v.
Womack, 457 Mass. 268, 272 (2010); Commonwealth v.
Waite, 422 Mass. 792, 801 (1996); Commonwealth v.
Nawn, 394 Mass. 1, 4 (1985); Commonwealth v. Cruz, 373
Mass. 676, 691 (1977); Commonwealth v. Locke, 335
Mass. 106, 115 (1956); Commonwealth v. Twombly, 319
Mass. 464 (1946).
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Morse’s unequivocal denial of the accusation that
he had taken any “substances that could’ve impaired
[his] ability to . . . be aware of what was going on
around [him]” (Appellant’s Br. 7) was clearly
inadmissible under Trefethen and its progeny. The
statement was an extrajudicial denial of an accusation
that he had consumed other substances that could have
impaired his ability to operate a vessel. This fact
is an element of one of the charged crimes. See G.L.
c.90B § 8A(2) (criminalizing operation of “a vessel on
the waters of the commonwealth . . . while under the
influence of intoxicating liquor, or of marihuana,
narcotic drugs, depressants, or stimulant substances,
all as defined in chapter ninety-four C, or the vapors
of glue.”). The denial evidence was introduced in the
Commonwealth’s case-in-chief as evidence of the
defendant’s guilt on the charge of misleading
investigators under § 13B. The accusation and the
denial were admitted into evidence to prove the truth
of the matters stated therein – i.e., that Morse took
substances that impaired him on the day of the
incident and that his denial was false. Therefore the
statements “plainly are hearsay statements which
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[should have been] excluded” at trial. See Cruz, 373
Mass. at 692.
The evidence was unfairly prejudicial to Morse.
The admission of the accusation and unequivocal denial
cannot form the basis for the criminal charge that a
defendant mislead investigators under § 13B because
such statements are inadmissible hearsay and,
therefore, inherently unreliable for precisely the
reasons set forth in Trefethen: At the time of the
admission of the statements into evidence, the
Commonwealth had not proven beyond a reasonable doubt
that Morse had taken any substances that could have
impaired him.
Further, although the trial judge attempted to
limit the denial evidence solely to the issue of guilt
or innocence on the charge that he misled
investigators under § 13B, the evidence no doubt
spilled over to the jury’s consideration of the
substantive homicide charges. As the Court stated in
Womack, “[t]he core of any prejudice is more likely
caused by admission of the accusations than the
denials.” 457 Mass. at 276. Moreover, by introducing
both the accusation and the denial before the jury,
the Commonwealth implicitly identified Morse as a liar
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without having to explicitly use that word in its
closing.
The Legislature’s 2006 amendment to § 13B
expanded the scope of the statute from solely
pertaining to witness intimidation to include
misleading law enforcement authorities. This
amendment creates an opening for the Commonwealth to
unlawfully prosecute persons based on evidence that is
of § 13B as applied to probation officers). However,
there is simply no mention in the Act or the floor
debate leading up to its enactment of the
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Legislature’s intent to criminalize or make admissible
in court an accusation and a suspect’s denial of
guilt. Absent such clear intent, this Court cannot
infer that the Legislature intended to eliminate the
common-law rule barring accusations and denials from
evidence. Therefore, a criminal defendant cannot be
found guilty of § 13B solely based on his unequivocal
denial of an accusation.
II. Charging a Criminal Defendant with the Crime
of Misleading an Investigator under G.L. c.268 § 13B for His Denial of Accusations that Will Compel Him to Furnish Evidence Against Himself Violates His Rights under Article 12.
The defendant was forced to choose between
refusing to incriminate himself by providing the
police with complete information about his drug use or
facing felony charges for misleading the police under
§ 13B by denying the accusation of such drug use. By
placing the defendant in this dilemma, the
Commonwealth deprived him of his right not to “accuse,
or furnish evidence against himself” under Article 12
of the Massachusetts Declaration of Rights.
As this Court has repeatedly recognized, Article
12 provides greater protection against self-
incrimination than does the Fifth Amendment. See
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Commonwealth v. Mavredakis, 430 Mass. 848, 858-59
(2000). Specifically, Article 12’s protection against
self-incrimination “applies equally to any compulsory
disclosure of his guilt by the offender himself,
whether sought directly as the object of the inquiry,
or indirectly and incidentally for the purpose of
establishing facts involved in an issue between other
parties.” Opinion of the Justices to the Senate, 412
2013) (recognizing increase in obstruction of justice
charges in Northampton County and that defendant in
arson case was charged with six counts of misleading
law enforcement under § 13B for allegedly lying to
police).
In the parallel situation in the federal system,
the elimination of the “exculpatory no” doctrine has
resulted in expansion of federal obstruction of
justice/false statement charges. In Brogan v. United
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States, 522 U.S. 398 (1998), the Supreme Court
broadened the scope of 18 U.S.C. § 1001, which
criminalizes the making of a false or fraudulent
statement in any matter within federal jurisdiction,
by eliminating the “exculpatory no” doctrine, which
many federal courts of appeal had adopted to foreclose
convictions under § 1001 based solely on a denial of
wrongdoing to government investigators. 522 U.S. at
401.1 Federal judges have recognized that the broad
scope of § 1001 has led to unfair applications of the
statute. See, e.g., United States v. Moore, 612 F.3d
698, 702-03 (D.C. Cir. 2010) (Kavanaugh, J.,
concurring) (“As many others have noted, § 1001
prosecutions can pose a risk of abuse and injustice.
1 The Commonwealth relies on Brogan in support of its position that the Legislature intended to criminalize exculpatory denials by amending § 13B to include misleading investigators. (Appellee Br. 27-29.) Brogan is distinguishable from the circumstances here. The century-old Trefethen rule long pre-dates the Massachusetts Legislature’s 2006 amendment of § 13B to include misleading investigators. There is no parallel common-law evidentiary rule under federal law. Instead, lower federal courts created the “exculpatory no” doctrine in an effort to narrow the application of 18 U.S.C §. 1001. See Brogan, 522 U.S. at 401. Thus, Brogan is irrelevant to this Court’s determination of whether the Massachusetts Legislature intended to abrogate the long-standing common law rule precluding admission of accusation and denial evidence.
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In part, that's because § 1001 applies to virtually
any statement an individual makes to virtually any
federal government official-even when the individual
making the statement is not under oath (unlike in
perjury cases) or otherwise aware that criminal
punishment can result from a false statement.” (citing
Alex Kozinski & Misha Tseytlin, You're (Probably) a
Federal Criminal, in IN THE NAME OF JUSTICE 43, 47
(2009)); United States v. Yermian, 468 U.S. 63, 82
(1984) (Rehnquist, J., dissenting)).2 To establish a
violation of § 1001, the government must prove beyond
a reasonable doubt that the defendant (1) knowingly
made a material false statement, (2) made the
2 Even under federal sentencing law, the obstruction of justice enhancement is inapplicable for mere denials of crimes:
This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.
(USSG § 3C1.1, application n.2.)
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statement voluntarily and intentionally; (3) and made
the statement in relation to a matter within federal
jurisdiction. See First Circuit Pattern Criminal Jury