Statement of Facts

I. Statement of Facts

On May 15, 2007, at 9:30 a.m. Pennsylvania State Police Corporal Leo Hannon, Troopers Murphy and Polishan, Dallas Township Police Department Sergeant Douglas Higgins and Luzerne County Detective Daniel Yursha filed criminal charges against the defendant relating to the death of Bryan Kocis. See Homicide Investigation Report attached hereto as “Exhibit 1."

On that same date, Virginia Beach Police Department apprehended the defendant on a “Fugitive from Justice” warrant. See Report, Exhibit 1. Upon information and belief, the jurisdiction from which the defendant was allegedly a fugitive from was Pennsylvania, relating to the charges filed against him earlier in the day.

Pennsylvania State Police Corporal Hannon, Special Agent Glenn, Detective Yursha, and Sergeant Higgins traveled to Virginia on the same date that the charges were filed and the defendant was apprehended. See Report Exhibit 1. The Pennsylvania authorities arrived at Virginia Beach Police Department to find the defendant in an interview room, Mirandized. ld.

Defendant Kerekes invoked his right to counsel by requesting that he speak to an attorney prior to questioning. ld. Kerekes told officers that his attorney was either Atty. Taylor or Atty. Brewer. ld.

Despite the tact that Kerekes unequivocally invoked his right to counsel, Trooper Hannon asked Kerekes questions regarding “biographical” information. ld. Upon information and belief, this questioning went beyond identifying information and included questioning regarding the identity of his paramour, family history, educational background, religion, military history and employment history. ld.

Despite the fact that Kerekes unequivocally invoked his right to counsel, Trooper Hannon told Kerekes he was under arrest for the murder of Bryan Kocis and proceeded to read aloud the criminal complaint to Kerekes. ld. See also Complaint and Affidavit attached hereto as “Exhibit 2.” When he was finished reading the complaint to Kerekes, Corporal Hannon questioned Kerekes regarding his understanding of the document. ld.

Despite the fact that Kerekes unequivocally invoked his right to counsel, Trooper Hannon read aloud the affidavit of probable cause to Kerekes. ld. See also Complaint and Affidavit “Exhibit 2.” The affidavit of probable cause contains statements made by third parties regarding the crimes with which Kerekes was charged. Complaint and Affidavit “Exhibit 2.” Kerekes made certain statements during this session with Corporal Hannon which the defendant believes, and therefore avers, the Commonwealth will seek to use at trial.

1 Defendant Kerekes challenges the admissibility of the statements he made while in custody at the Virginia Beach Police Department on the day of his arrest. He does not challenge the admissibility of the statements made during his transport from Virginia Beach to Pennsylvania.

Law and Argument

II. Law and Argument

There is a conflict of laws between Virginia and Pennsylvania. However, the issue of admissibility must be analyzed under Pennsylvania law even though the statements were elicited in Virginia because Pennsylvania has the greater state interest.

Under Pennsylvania law, the Sixth Amendment right to counsel attaches at arrest. Commonwealth v. Karash, 513 Pa. 6, 518 A 537, 541 (1986); Commonwealth v. Laney, 1999 Pa.Super68, 729 A.2d 598, 601 (Pa.Super. 1999); Commonwealth v. Richman, 458 Pa. 167, 320 A 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970). Pennsylvania offers greater protection than federal law. Kerekes clearly invoked his right to counsel. See Report Exhibit 1. Corporal Hannon’s reading of the complaint and affidavit was the functional equivalent of an interrogation violating the Sixth Amendment right to counsel when viewed under Pennsylvania law. Because Kerekes was interrogated after he had invoked his right to counsel, the statements elicited must be suppressed as they were obtained in violation of Kerekes’ Sixth Amendment rights.

Should the Court disagree and find analysis appropriate under Virginia law, the statements should still be suppressed. Under Virginia law, the point of arrest does not attach Sixth Amendment rights. Virginia offers no greater protection than federal law. However, the defendant is still protected by his Fifth Amendment right to counsel. Because Kerekes unequivocally invoked his right to counsel and was in custody, any further questioning was prohibited by the Fifth Amendment. Therefore, the statements must be suppressed.

Conflict of Laws

III. Conflict of Laws

The analysis regarding conflict of laws is identical to that articulated in defendant’s previously filed briefs regarding the electronic intercepts and search of defendant’s home. To summarize, this matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrisori, 2000 Pa.Super 111, 750 A.2d 895 (2000).

"In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. UnitedAirlinos, 416 Pa.1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the Jurisdiction most intimately concerned wIth the outcome. ld. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez, et al, 552 Pa, 570, 576, 716 A 1221, 1224 (1998) (Emphasis supplied).

Because Pennsylvania law enforcement initiated the charges against the defendant, Pennsylvania law enforcement traveled to Virginia and elicited the statements from the defendant and Pennsylvania prosecuted the defendant, Pennsylvania has the greater interest in the outcome.

The Sanchez case makes this distinction even more clear. In Sanchez a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant, Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. ld. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania. ld. at 1224.

In reaching this conclusion, the Sanchez court reasoned:

No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff.

Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.

ld. at 1224, 1225. (Emphasis supplied).

Analysis compels the result that Pennsylvania law applies to the admissibility of the defendant’s statements.

Conflict of Laws: Pennsylvania Analysis

IV. Pennsylvania Analysis

Under Pennsylvania law, the Sixth Amendment right to counsel attaches at arrest. Commonwealth v. Karash, 513 Pa. 6, 518 A.2d 537, 541 (1986); Commonwealth v. Laney, 1999 Pa 68, 729 A.2d 598, 601 (Pa 1999); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).

The Sixth Amendment guarantees the right to representation by counsel not only at trial but at earlier “critical” stages. Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct 477, 484, 88 LEd.2d 481 (1985). After the Sixth Amendment has attached, “government efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.” Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). As the United States Supreme Court observed in Brewer v. Williams, 430 U.S. 387, 97 S.Ct, 1232, 51 L. Ed.2d 424 (1977), there exists a clear rule, established in Massiab v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) that “once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” ld., 430 U.S. at 402. “If police initiate interrogation after a defendant’s assertion.. of his [Sixth Amendment] right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 637.

Interrogation includes when “a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-301, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980). “Functional equivalent” is defined as “any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect.” Id. at 301. Police interaction with the defendant need not amount to “interrogation.” The prohibited police-initiated contact is indeed broader, encompassing police-initiated “further discussions, ““police-initiated conversation” or “discussion,” or any statements made by the defendant “deliberately elicited” by police. Smith v. Illinois, 469 U.S. 91, 95, 105 S 490, 83 L 488 (1984); Michigan v. Harvey, 494 U.S. 344,345, 348-49, 110 S.Ct. 1176, 108 L 293 (1990).

Here, defendant Kerekes was arrested by Virginia authorities on a fugitive warrant for charges originating in Pennsylvania. See Report Exhibit 1. The Sixth Amendment right to counsel attached. Kerekes then very clearly invoked the right to counsel by telling authorities he would like to speak to his lawyer prior to questioning and identifying who his lawyer(s) were. Report Exhibit 1. Despite the attachment of his Sixth Amendment right to counsel and his clear request for counsel, law enforcement read the affidavit of probable cause and criminal complaint to the defendant which contained third party statements regarding the defendant and the crimes charged. This was the “functional equivalent” of interrogation.

In Commonwealth v. Stevenson, 2006 Pa. D&C LEXIS 80 (Dauphin) aff’d without opinion 927 A.2d 658 (Pa.Super 2007), defendant had been arrested and Mirandized and a detective read to him a search warrant and supporting affidavit of probable cause. Stevenson at 3-4. The affidavit contained statements made by third parties which incriminated the defendant. Id. Following the reading, the defendant was re-Mirandized, waived his right to an attorney and made statements. ld. The court suppressed the statements, finding that the reading by the detective of the probable cause affidavit was a police-initiated discussion designed and likely to elicit an incriminating response from the defendant since it contained a third party statement. ld. at 14.

In Commonwealth v. Gaul, 590 Pa, 175, 912 A.2d 252 (2006), the police arrested the defendant, took him to a detention center and read the defendant the affidavit of probable cause, acknowledging he should give him Miranda warnings. Gaul at 178. The Pennsylvania Supreme Court found that this was the functional equivalent of questioning because the officer should have known his behavior was likely to evoke an incriminating response. Id. at 183.

Under Pennsylvania authority, Kerekes was arrested, his Sixth Amendment right to counsel had attached and he invoked it. Pennsylvania authorities by requesting discussion of his background, employment history, military history, etc. violated Kerekes’ Sixth Amendment right. Further, Pennsylvania authorities engaged in the functional equivalent of interrogation when they read the affidavit of probable cause to him and confronted him with third party statements, setting up a situation they should have known would likely elicit a response. The geography of the interrogation does not shield Pennsylvania authorities from the consequences of their behavior when outside the Commonwealth acting under color of this state’s law. All statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Sixth Amendment rights.

Conflict of Laws: Virginia Analysis

V. Virginia Analysis

Should this Court find that Virginia’s application of federal law applies, the result is the same—suppression should be granted.

Virginia adheres to federal analysis regarding the attachment of Sixth Amendment right to counsel and affords no greater protection. See Commonwealth v. Malvo, 63 Va.Cir. 22 (Fairfax) (2003). Recently, the United States Supreme Court has reaffirmed its holdings in Brewer and Jackson, supra, in Rothgery v. Gillespie County, 128 S.Ct. 2578, 2008 U.S. LEXIS 5057 (June 23, 2008) by stating,” ...a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

Because Kerekes’ statements were given prior to any appearance before a judicial officer, under Virginia analysis his Sixth Amendment right to counsel had not yet attached. However, his Fifth Amendment right to counsel had.

The Fifth Amendment provides that “no person... shall be compelled in any criminal case to be a witness against himself.” The United States Supreme Court has held that this guarantee encompasses a right to counsel:

[The Fifth Amendment right to counsel is] found... in this Court’s jurisprudence relating to he Fifth Amendment guarantee [compelled self-incrimination]. In Miraridaf[, supra], we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present.

In Edwards [v. Arizona, 451 U.S. 477, 486-87, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)], we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U.S. at 484-85, 101 S.Ct. At 1884-85—which means... that counsel must be present, Minnick v. Misissippi, 498 U.S. [ 111 S.Ct. 486,112 L.Ed.2d 489(1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver... The Edwards rule, moreover is not offense specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be re-approached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

In the instant case, Kerekes was clearly in custody. He had received Miranda warnings and invoked his right to counsel. The police subsequently initiated an encounter in the absence of counsel by requesting “background information” and reading the affidavit of probable cause and charges against Kerekes. Any statements elicited from Kerekes were obtained in violation of his Fifth Amendment right to counsel.

The Commonwealth seeks support for its proposition that Kerekes’ Fifth Amendment rights were not violated under Virginia analysis in Gates v. Commonwealth, 30 Va.App. 352, 516 S.E.2d 731 (1999). However, Gates is inapposite.

In Gates, a defendant arrested on other charges was served with new arrest warrants by police. He was not Mirandized, nor did he invoke his right to counsel before police read the charges to him, Gates at 354. The police asked no questions of the defendant and the defendant made statements following the reading of the charges. ld. at 354-355. The Virginia court determined that this circumstance was not the “functional equivalent” of interrogation. ld. at 356.

The Gates case was different in fundamental aspects from the instant case. Here, Kerekes was Mirandized and invoked his right to counsel. In Gates, the defendant was not Mirandized and did not invoke his right to counsel. Therefore, the analysis was not the same. Further, the Gates court found facts specific to that case as reasons for the finding that the encounter with the defendant did not rise to the “functional equivalent” of interrogation including that the officers did not have any paper or tape recorder and were thus unprepared to record any statement, showing they did not intend to elicit a statement. See Gates at 356.

When the facts of the instant case are analyzed under the Fifth Amendment standard adopted by Virginia, the result is that Kerekes was in custody, he was advised of his Miranda warnings, he invoked his right to counsel and questioning did not cease, The Pennsylvania officers asked questions relating to his background, family history, educational and military background, religion and personal relationships and then proceeded to read to him the affidavit of probable cause and complaint, confronting him with statements of third parties. This was the functional equivalent of custodial interrogation. Therefore, all statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Fifth Amendment rights.

2 copy of all Virginia case law cited herein is attached to this Brief as an Appendix for the Court’s convenience.

3 is the primary difference between Virginia and Pennsylvania law. Where Pennsylvania and some federal circuits find that magisterial approval of a criminal complaint and issuance of an arrest warrant by a magistrate who is apprised of “information upon oath” is sufficient to commence adversarial proceedings thereby triggering the Sixth Amendment right to counsel, Virginia follows Brewer, Jackson and Rothgery in finding that the Sixth Amendment right attaches at the equivalent of formal arraignment. See Commonwealth v. Richman, 320 A.2d 351 at 353; United States ex rel. Robinson v. Zelker, 468 F,2d 159, 163 (2d Cir. 1972).

Conclusion

VI. Conclusion

For the reasons more fully stated above, in a conflict of laws analysis, Pennsylvania is the forum state and its analysis of the law should apply because it has the greater interest.

Under Pennsylvania interpretation, Kerekes’ Sixth Amendment right to counsel had attached because he was arrested. All statements elicited from the Pennsylvania authorities and fruits thereof should be suppressed as obtained in violation of his Sixth Amendment rights.

If analyzed under Virginia law, the statements and all fruits thereof should still be suppressed as obtained in violation of Kerekes’ Fifth Amendment rights.

Respectfully Submitted,

Shelly L. Centini, ESQ.
Attorney for Defendant Kerekes

John Pike, ESQ.
Attorney for Defendant Kerekes

PPO to Decide Within 2 Weeks...

The Citizens' Voice reports that Luzerne County Judge Peter Paul Olszewski Jr. said Wednesday he would likely rule within the next two weeks on defense requests to exclude potentially incriminating evidence from the capital murder case against Harlow Cuadra and Joseph Kerekes, including e-mail messages, recorded conversations and items seized from the accused killers’ Virginia Beach, Va., home.

At the same time, Olszewski will consider a defense motion to hold separate trials for Cuadra and Kerekes — a request bolstered Wednesday by a possible alibi defense submitted by Cuadra’s attorneys that conflicts with a potential alibi filed by Kerekes in January.

At trial, both men could claim they were in the same room at a Plains Township motel at the time Bryan Kocis was killed in Dallas Township in January 2007, but Kerekes has said he was in the room alone while Cuadra visited Kocis, a rival producer of gay pornographic films.

Cuadra, 26, and Kerekes, 34, both of Virginia Beach, Va., are accused of slashing Kocis’ neck to the point of near decapitation, stabbing his torso nearly 30 times and later setting fire to his Midland Drive home. They face the death penalty and are scheduled to stand trial together, beginning Sept. 2.

The e-mail messages and other evidence the attorneys are asking be blocked from use during the trial contradict the potential alibis and show a series of premeditated events leading to the killing.

The e-mail messages, obtained through six search warrants from Jan. 30, 2007, to Aug. 27, 2007, show Cuadra established communication with Kocis on Jan. 22, two days before his death.

Cuadra wrote to Kocis posing as an inexperienced pornographic film actor named “Danny Moilin.” He created an e-mail address on Jan. 22, 2007, solely to contact Kocis, prosecutors said.

Prosecutors said Cuadra created the Moilin character as a ruse to gain a private meeting with Kocis, 46, who led a nearly reclusive life.

“Umm can we please be alone,” Cuadra wrote in a message dated Jan. 23. “At least this first time. Thanks. Danny.”

“We’ll be alone, no worries,” Kocis responded.

Cuadra sent Kocis photographs of himself, tying him to the Moilin character, and ordered an online background check of Kocis days before the murder, prosecutors said.

Cuadra also called Kocis on a cell phone purchased and used to call only Kocis, and rented a vehicle that was seen by witnesses in Kocis’ driveway around the time of the killing, prosecutors said.

Attorneys for Cuadra said the search warrants used to obtain the e-mail messages, from Yahoo, Excite and Myspace, were granted without sufficient probable cause.

The attorneys have also asked that Olszewski suppress an interview investigators conducted with Kerekes at the headquarters of the Virginia Beach Police Department shortly after his arrest, and conversations between Cuadra, Kerekes and acquaintances Grant Roy and Sean Lockhart recorded in San Diego in April 2007.

Kerekes claimed investigators ignored his request for an attorney at the start of the interview.

The attorneys questioned the validity of the San Diego conversations because they said Roy, who volunteered to wear a recording device, had originally been identified as a suspect in Kocis’ death.

Kocis had, until days before his death, been locked in a lawsuit with Roy and Lockhart, a pornographic actor who starred in films for Kocis, over Lockhart’s ability to work for other companies using his stage name, Brent Corrigan.

“It was quick. He never saw it coming,” Cuadra said, according to transcripts of the San Diego conversations.

“Actually seeing that (expletive) go down,” Cuadra said later in the transcript, allegedly referring to Kocis. “It’s actually sick, but it made me feel better inside.”

The Tales Some Tell...

Please note that this post is based upon my own personal opinion/experience/findings ... it should not be confused as an immediate statement of fact:

From a blog post dated this past Saturday... DeWayne In San Diego made the following comment:

"Michael Kocis with his Son in Law (Melody's husband) walked up to Sean and Grant in the courthouse there to testify as Prosecution witness's in the trial of the two alleged murderers of HIS son!

Michael Kocis said "These are the two scumbags who KILLED my son!"

Sean replied "Your Son was a FUCKING Pedophile" "And the Apple didn't fall far from the tree!"

Grant filed a formal complaint on behalf of both with the DA's office for Witness Intimidation and Interference with two state witnesses on Official business"

Fortunately I'm here to disagree...

First of all, Michael Kocis and his son-in-law where not there to testify... they were simply there as spectators... just like they have been for almost every hearing in the past... and who could really blame them?

Secondly... I had the opportunity to watch, and listen to Michael Kocis' every move and words during the last two-day hearing (to the best of my knowledge DeWayne has ever met him) ... not once did the 70-something-year-old-man come across as someone that would make a statement like that.

Thirdly, even if Mr. Kocis did make that statement (which I still personally doubt) ... how rude and disrespectful for Sean and/or Grant to reply in the way they allegedly did... while some would like to believe that it's entirely possible Sean and Grant had nothing to do with the murder, they seem to forget that it's also possible Michael Kocis had nothing to do with Bryan's business... to insinuate that the father of a deceased son should also be blamed for alleged bad acts is just plain stupid... as was Sean/Grant's alleged comment.

Fourthly... I'm unable to find any evidence of a formal complaint being filed by either Sean or Grant... though I've also heard that the Kocis family intends to sue them as well... at this point... I'll believe whatever I can actually see via police/court documents... thus far there's none.

The constant spin just needs to stop... just show me the documents... please.