Reference no: EM133677457

Harry Hamburg, age 25 was the former owner of a stamp and coin shop in Kailua. He had a lengthy juvenile arrest record but no adult criminal record. After his stamp and coin shop closed, Harry faced great debt and was nearly bankrupt. Desperate, Harry called an old high school buddy named Charles Fong and asked him if he wanted to be part of a "rip-off" Harry was planning. Fong expressed interest and the two men met at the neighborhood bar to plan their crime. The next evening at 11 p.m., the two men scaled a two-story building on King Street and entered the "Good Times" sports collectible store through an air vent. Wearing old Oakland Raider football jerseys that Harry Hamburg owned, the men burglarized the store taking money and collectibles worth more than $20,000. A homeless man with his shopping cart observed the men from a bus stop bench across the street from the crime scene. The man did nothing but watch the men while drinking from a pint bottle of whiskey. After the burglary, the two men got back to Hamburg's house to split the "loot". Harry only gave Fong about $2,000 worth of items. Fong complained about his "cut" but fearing Hamburg's reputation for violence, he took the items and left.....upset and bitter.

The burglary was widely reported in the media (especially on the television news). One item reportedly stolen was a 9MM firearm that was kept under the cash register. The news coverage featured a very fuzzy security camera video of the burglars as they ransacked the store. News coverage ended with a call for the public's help to solve the crime via the "Crime Stoppers" program. Frank Friendly, a swap meet t-shirt dealer watched the newscasts about the burglary. He immediately suspected Harry Hamburg because of the football jerseys the culprits used (Hamburg always complained that Friendly never sold Oakland Raider t-shirts). Friendly was awaiting trial on a single state crystal methamphetamine felony charge and he called his public defender to discuss the possibility of working out a plea bargain if he helped the police in solving that big sports store burglary that was on the news. The public defender told Friendly to sit tight while he approached the police about that possibility. That night, Friendly went to the Silk Chateau, his favorite hostess bar. After taking a booth, he was approached by an attractive bar hostess he had never seen before. She introduced herself as "Chastity" and she joined Friendly at his booth. For the next hour, Chastity became "extremely" friendly with Friendly as the liquor flowed. Friendly spoke freely to her about his life problems (including his pending "meth" charge). Chastity then began to express a strong interest in Friendly by frequently rubbing her body against Friendly and kissing him on the lips.

Friendly was "stimulated' by Chastity and he invited her to go back to his place that night. Chastity responded by grabbing Friendly's knee and asking him if he could get some "stuff" for them to party with. Friendly knew that "stuff" meant drugs, but he hesitated (thinking about his pending drug case). Chastity persisted urging him to score some "stuff" because that way she would be totally "uninhibited". Friendly tried to change the subject but she grabbed and French-kissed him passionately. Tipsy, flattered, and horny, Friendly agreed to get some crack cocaine for them. Friendly scored the cocaine within fifteen minutes by seeing a local dealer he knew who lived within a mile of the bar. Later, when Chastity got into Friendly's car, Chastity asked him if he got the stuff. He nodded yes. Chastity asked him to show it to him. Friendly said "no, wait until we get to my place". Chastity replied "if you show me the stuff, I'll show my stuff". She then unbuttoned the top two buttons of her blouse. Friendly pulled out a clear plastic bag with cocaine in it to show Chastity. Friendly then said "now, show me what you have". Chastity then pulled out her H.P.D. badge and said "honey, here's what I have for you...you're busted. I got you good!". Two undercover narcotics detectives then surrounded the car and formally placed Friendly under arrest for possession of cocaine. At the cellblock, detectives took Friendly into the interrogation room (he had been booked for the cocaine possession charge). When Detective Boomer Schmidt entered the room, he announced "Friendly, your ass is grass, with this new cocaine case along with your old meth case, you're looking at serious mandatory jail time. If you want to make it easier on yourself, you better cooperate or we will seek the maximum penalty". Friendly said: "I think I better speak to my public defender before I talk to you?"

Detective Schmidt replied: "It takes too f*cking long and I have no patience with you...cooperate now or no deal. I will throw you back into the cell!" Friendly then said: "I think I can help you on that major burglary case that's been on the news". Detective Schmidt promised Friendly that he would release him that night and would order the prosecutor to drop the cocaine charge if he talked about his case and the burglary so long as the information was "good enough" (Note: detectives cannot order prosecutors to drop charges). Friendly then admitted to buying the cocaine from his regular dealer because he wanted to score with Chastity. After Friendly "confessed", Detective Schmidt gave Friendly a written Miranda warning form which Friendly signed without reading it. Then, Friendly told Schmidt about the burglary saying: "I'm sure it was Harry Hamburg and his pal Fong because I recognize the football jersey as one Harry always wears". Friendly gave the police the addresses of where Hamburg and Fong lived. Detective Schmidt then said: "thanks for the addresses, we'll go pick up Hamburg and Fong, but your information was nothing we didn't already know, no plea deal for you". [The facts were that Friendly's information was actually new to the investigation.] Friendly was returned to the cellblock cussing.

When the police picked up Fong on the burglary charge, the first thing he said without being asked any questions was "someone ratted me out! It was Harry's idea, I just went along with it!". During the car ride, Fong was seated in the back seat of the police car with Detective Schmidt and a patrol officer seated in front. Schmidt told the other officer (not Fong) that "if it wasn't for Harry's big mouth, we wouldn't have ever caught this joker Fong". The patrol officer replied "what did he call him, his stupid Chinese coolie". Fong yelled out "I'll get that jerk Hamburg, it was all his idea to hit the sports store, not mine!". At the station, Detective Schmidt gave Fong his Miranda rights and Fong realizing that he had already opened his mouth too much chose to remain silent.

Meanwhile, Detective Sally Strong, Schmidt's partner had prepared arrest and search warrant applications (Friendly address tip was included in the application) for Harry Hamburg but Schmidt waved them off saying "we don't need no stinking warrants...let's go arrest Hamburg". At 12:45 a.m., they drove to the Hamburg home and they pounded on the front door. Hamburg, dressed in pajamas answered the door. Schmidt immediately grabbed Harry by the arm and forcefully sat him down in the patrol car. Detective Schmidt then took a handcuffed Harry to the police station where he was booked and charged with the burglary. Harry demanded to know what evidence they had and Detective Schmidt replied "ask your burglary buddy Fong". Harry said: "that gutless bastard, I'll fix him later. I want to know my Miranda rights" . Detective Schmidt pretended to read from a card (it was his library card) to Harry as follows: "You got the right to remain silent. You got the right to have your attorney present only while I question you. If you speak to me, anything you say can and will be used against you if there ever are criminal charges brought against you and if there is a trial. If you cannot afford an attorney, the government will give you one free for trial. T think you will want to speak to me?"

Harry was so rattled about what was happening to him, he vomited on the interrogation room table. He told Detective Schmidt that he had the flu and that he didn't feel well. Harry did in fact have a 101 degree fever and was experiencing body chills. Detective Schmidt told him that he had better talk or else he would get a "good licking" from the hardcore inmates that were in the holding cell. Harry reluctantly agreed to talk, but he refused to sign anything. Harry then told Detective Schmidt that "Fong was the mastermind for the burglary, I only helped a little". When Schmidt pressed Harry further about his involvement in the burglary, Harry told Schmidt that "I want to see an attorney, you tricked me". Detective Schmidt said "okay, but you must sign this other form before I end this interrogation". It was actually a "consent to search" form that Harry hastily signed without reading it. Within 30 minutes with the consent to search form in hand, the police searched Harry's home and found several of the items (including the stolen gun) taken in the burglary.

By 7 a.m. the morning after the burglary, police had interviewed Jerome Broke, the homeless man who saw the burglary from across the street. Broke had been brought into the police cellblock area where a statement about what he had seen was taken. The police officer who took Mr. Broke's statement noticed a very strong alcoholic odor to his breath. A quick check of Broke's rap sheet showed that he had several misdemeanor convictions for crimes like public intoxication, assault, and shoplifting. By 8 a.m., lead detective Schmidt had arrived and was ordering that Hamburg and Fong be brought to a room adjacent to the room where Broke was in. Harry Hamburg demanded to see a public defender. The police ignored him. With Broke looking through a two-way mirror, Detective Schmidt asked him to look at Hamburg and Fong stating "look at those two, aren't they the two burglars you saw?". Broke said in slurred speech "I don't recognize these guys". Schmidt told Broke that "thank you, I'll take that as positive identification". None of this conversation between Schmidt and Broke was recorded by the tape or video recorder that was plugged in and available in the viewing room. Schmidt than gave $50 in cash to Broke (not documented on the police report) saying to him "this is for your help in the identification". Schmidt thereafter prepared a line-up identification form, which was signed by Broke (who signed with an "X" because he was unable to read or write the English language). Both Hamburg and Fong were later indicted for burglary. At the grand jury proceeding to indict Hamburg, the prosecutor called Detective Schmidt to testify referring to eyewitness Broke saying "he had positively identified the two men at a lineup". Broke did not appear as a witness at the grand jury hearing.

At the trial, Friendly was brought on the stand as a witness. The prosecutor falsely had told Friendly that if he testified against Hamburg, he would have done the State of Hawaii a favor and that he would be rewarded later in his case. Friendly testified that he could identify the two defendants as the culprits from the security video that was shown on the television news because they wore the kind of football jerseys that "Harry used to wear all the time". The prosecution then asked Friendly about the suspects at the police lineup. Friendly testified: "as soon as I came into the room, I recognized both of them". [Note: Friendly testified as a subpoenaed witness and had been orally "promised" by the prosecution and Schmidt that he would be "treated right" on his drug case if he helped to convict Hamburg and Fong]. During the trial, the public defender (for Hamburg) and court-appointed defense attorney (for Fong) attempted to attack Friendly by claiming that he had a grudge against the two defendants. Neither defense attorney asked about Friendly's deal with the prosecution, because they were never given information about any claimed deal between the prosecution and Friendly. Both defense attorneys had specifically asked the prosecution for such information, who claimed in writing that there was no plea deal with Friendly. The cross-examination of Friendly by the defense attorneys was conducted focusing on the quality of the video and the common ownership of the football jerseys. Neither defense attorney bothered to inquire about any hostility or ill will that Friendly had for Hamburg or Fong.

Jerome Broke testified (in brand new shirt, slacks, shoes bought by the police) at the trial about what he saw of the burglary. The prosecutor asked Broke about the identification he made of the defendants and he acknowledged that he had signed "X" on the lineup identification form after he picked out Hamburg from the lineup as the burglar. The prosecution never asked Broke to identify Harry Hamburg in court. On cross-examination by Hamburg's defense attorney, he asked Broke to identify any burglary suspect he saw in court. Broke then began to sweat profusely and he started shaking nervously. He was never able to identify anyone in court. Broke was excused from further testimony. Broke was not cross-examined by either defense attorney about the details of the line-up procedure that took place at the police department.

After all of the physical evidence (football jerseys, the 9MM and many stolen items) was introduced into evidence at the trial (over defense objections), the prosecution then sought to introduce the various statements given by the two defendants to the police. [Note: no other identification evidence like fingerprints or other eyewitnesses was brought forward at the trial.] Both defense attorneys jumped up and raised varied objections but the judge overruled them all and allowed the prosecution to introduce all "confession" statements unedited into the trial. Only Harry Hamburg chose to testify at the trial. He denied committing the burglary.

In closing argument, the prosecutor argued (with no defense attorney objection) that the two defendants "were as guilty as Osama Bin Laden was evil...and that terrorist is now deservedly dead" and the "we as citizens need to continually rid this country of such people". He urged the jury to "do service to this country by ridding the community of these two defendants. Heinous crimes are committed daily in Hawaii mostly because of our crystal meth problem.". After a brief deliberation, the jury convicted the two men for burglary. Fong was sentenced to ten years in prison as was available under the burglary statute. Hamburg was given an extended term of twenty years in prison after the judge at the sentencing hearing stated that "Mr. Hamburg I didn't like your lack of remorse for the crime and I think that you should have taken responsibility for your actions in this case. You said nothing during this sentencing hearing. I found this to be personally disrespectful".

Questions

You are the new attorney for Harry Hamburg assigned to handle the appeal of his conviction. You were not the trial attorney. Assume that all of the information stated above is now provable and available to raise as issues on the appeal. Identify and make all of the arguments for alleged violations of the constitutional rights of Hamburg, identify the constitutional issue and specific constitutional amendments involved, how those rights were by the different actors working in the criminal justice system. For each claimed constitutional violation, briefly discuss the facts involved and what you think the final resolution of that issue would be. When applicable reference any U.S. Supreme Court case decision that you think may apply.