Maine v. Moulton

LOCATION: Rhode Island District Court

DOCKET NO.: 84-786
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Maine Supreme Judicial Court

CITATION: 474 US 159 (1985)
ARGUED: Oct 08, 1985
DECIDED: Dec 10, 1985

Anthony Whitcomb Beardsley - on behalf of the Respondent
Wayne S. Moss - on behalf of the Petitioner

Facts of the case


Media for Maine v. Moulton

Audio Transcription for Oral Argument - October 08, 1985 in Maine v. Moulton

Warren E. Burger:

Mr. Moss, I think you may proceed whenever you are ready.

Wayne S. Moss:

Mr. Chief Justice, and may it please the Court:

This is a criminal case from Maine involving a Massiah issue of whether the Sixth Amendment right to counsel applied to a post-indictment meeting between Respondent Moulton and his friend, Gary Colson, a co-defendant, on theft charges.

The central question here is whether the Massiah/Henry rule should be extended to the facts of this particular case.

There are two factors here which are important, distinguishing this case from Massiah and Henry.

First, Moulton himself, not the police, created his incriminating situation relative to the pending theft charges.

Second, the police here put the body wire on Colson as part of a legitimate investigation into a new crime which was Moulton's plans to murder a key state's witness, Gary Elwell.

In light of these two factors, there is no deliberate elicitation here, because, as the Court said in Henry, the police here did not intentionally create the situation inducing Moulton's incriminating statements.

I would like to address each of these two factors in turn.

First, as I said, Moulton himself, not the police, created this incriminating situation.

Moulton initiated all the contacts between himself and Colson, including the meeting in which he incriminated himself.

Respondent concedes that it was Moulton who did arrange the meeting in which Moulton incriminated himself.

Moreover, Moulton, on his own initiative, put on the agenda for that meeting a complete discussion of their trial strategy and the perjured testimony that Moulton wanted them to get.

Just further evidence that Moulton himself created his own incriminating situation is that some of the statements at the meeting were made without any questioning or promoting by the informant Colson at all and other statements that he made in response to Colson's questions, that Colson asked those questions within the role that Moulton had created for him which was to review discovery materials and prepare a perjured defense for trial.

Additional evidence that this Moulton/Colson meeting was not a government-created confrontation is that here Colson was the one who initiated contact with the police to complain about threatening telephone calls.

This is not a case where the police sought out the informant to investigate pending charges.

The second important factor here is that the police placed the body wire on Colson as part of their legitimate investigation into a new crime, Moulton's plans to murder a key state's witness.

The suppression hearing justice below in fact found that the police were involved in this legitimate purpose of investigating a new crime and put the body wire on for that purpose and also to protect Colson's safety and not to gather evidence on the pending charges.

This finding is entitled to some deference because it was the suppression hearing justice below who heard the testimony firsthand, observed the demeanor of the witnesses and found both the police and the informant Colson to be believable.

The Maine Supreme Court found ample evidence to support the justice's finding and Respondent, as I have said, concedes that there was a legitimate purpose here for this investigation into murder.

The police were making every effort here to comply with Massiah while investigating the proposed murder and this is evidenced by the police instructions themselves.

Prior to this Moulton/Colson meeting, the police instructed Colson, the informant, to act like himself, converse normally, and avoid trying to draw information out of Moulton.

The police consulted with the local District Attorney's office before giving these instructions and the instructions themselves are consistent with Massiah and show a good-faith effort to comply with it.

Harry A. Blackmun:

But, he did ask questions, didn't he?

Wayne S. Moss:

Yes, he did ask questions.

Harry A. Blackmun:

Do you think he elicited comments?

Wayne S. Moss:

No, he did not elicit comments and the reason why he did not elicit comments is because those were statements that either Moulton was going to make anyway or that those questions that Colson asked were questions that Moulton required him to ask in order to develop the perjured testimony that Moulton wanted him to give.

Harry A. Blackmun:

But your Supreme Judicial Court disagreed with it?

Wayne S. Moss:

Yes, and the reason that our Maine Supreme Judicial Court disagreed is because our Maine Supreme Court assumed that simply by putting the body wire on the informant that the state somehow created the incriminating situation.

Our Court also used a foreseeability test and that is because it was foreseeable that the defendant and the informant would be having conversations about pending charges and that the defendant would be making incriminating statements in this conversation, that because this was foreseeable this also violated Massiah and Henry.