Flint v. Mullen

Decision Date25 June 1974
Docket NumberNo. 74-1061.,74-1061.
Citation499 F.2d 100
PartiesRobert W. FLINT, Jr., Petitioner, Appellee, v. James MULLEN, Warden, etc., Respondent, Appellant.
CourtU.S. Court of Appeals — First Circuit

Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellant.

Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

This is an appeal by the State of Rhode Island from a decision by the district court, 372 F.Supp. 213, which granted an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on grounds that the petitioner was forced to make an unconstitutional choice between not taking the stand at his deferred sentence violation hearing, thereby sacrificing due process rights, or speaking up in his own defense and thereby risking self-incrimination in an upcoming criminal trial, based upon the same incident.1

Petitioner was on probation, pursuant to a deferred sentencing procedure authorized by Rhode Island General Laws (1956)2 § 12-19-19, when he was arrested and indicted for bank robbery. Subsequent to the indictment, but prior to the criminal trial for robbery, the state moved to declare petitioner in violation of the deferred sentence agreement. Stressing that the deferred sentence violation hearing would compel him to reveal his defense prior to the criminal trial, petitioner thereupon moved pro se for leave to file writs of prohibition and mandamus in the Rhode Island Supreme Court, seeking to postpone the hearing until after trial. The motion was denied, Flint v. State, 106 R.I. 823, 259 A.2d 416 (1969), as was petitioner's application to us, Flint v. Rhode Island, No. 361 (Jan. 8, 1970).

A violation hearing was held before the Superior Court at which time the petitioner had the right to be heard personally, Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964), and the state had to present factual material proving that it was reasonable to believe Flint had failed to comply with the terms of his probation. Tillinghast v. Howard, 109 R.I. 497, 287 A.2d 749 (1972). Petitioner personally, as well as through his appointed counsel, again protested the holding of a revocation hearing before the trial. His motion for deferral was again denied. Petitioner's counsel then stated that there were facts favorable to the defense which should be presented at the hearing and that, in his opinion, the defendant should take the stand and testify. Calling five witnesses, all of whom were cross-examined by petitioner or by his counsel, the state presented evidence that defendant's brother, John, had robbed a bank and that defendant had participated by driving the getaway car in which he and his brother were arrested shortly after the robbery in the vicinity of the bank. Petitioner then informed the court that he and his counsel were in disagreement. Counsel was permitted to withdraw, and new counsel was appointed. At the close of the presentation of the state's evidence, the newly appointed counsel informed the court that petitioner chose neither to present evidence nor to take the stand because he did not wish to disclose his defense, planned for the upcoming trial. The Superior Court found petitioner in violation of his deferred sentence agreement and sentenced him to twelve years. The court emphasized that its finding was not just because an indictment was returned; it summarized the evidence and noted "we have given defendant the opportunity of being faced by his accusers." Petitioner was subsequently tried and acquitted on the robbery charge which had been at issue in the deferred sentence violation hearing.3

The district court concluded that petitioner was denied due process at his deferred sentence revocation hearing, in violation of the standards enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), insofar as he was not provided with use immunity for statements he might have made in his defense. We believe, however, that the right not to speak embodied in the Fifth Amendment is not equivalent to a right to volunteer information to the government under a grant of immunity. In Simmons, supra, the Court determined that a rule which required a defendant to testify at a pretrial suppression hearing, in order to assert his Fourth Amendment claims, created an unconstitutional "tension" with defendant's Fifth Amendment privilege against self-incrimination, since "a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim." Id. at 392. In Palmigiano, supra, the court held that when an inmate's silence is held against him, he must be provided "use" immunity for his testimony at a prison disciplinary hearing. We said that in those circumstances he faced "the constitutionally obnoxious dilemma of either remaining silent and risking greater punishment from the disciplinary board or speaking out in his own defense and risking self-incrimination in a subsequent criminal prosecution." Id. at 1288.

Neither Simmons nor Palmigiano is directly applicable to a deferred sentence violation hearing. Unlike the defendant in Simmons, petitioner was never faced with a choice between raising one constitutional right and foregoing another. The choice whether or not to exercise one's Fifth Amendment right to remain silent must often be made in a setting where there is a concomitant due process right to be heard. Petitioner's decision was, in effect, the same choice he or any other defendant must make when brought to trial. In Simmons, the penalty for remaining silent was waiver of a Fourth Amendment claim; in Palmigiano the inmate was specifically advised that his silence would be held against him. Here, however, the government had to prove its case by extrinsic evidence and there is no indication that defendant was penalized for silence except to the degree that anyone who claims the privilege may be said to forego the possibility of persuading a court in his favor.

In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), which involved a defendant in a unitary trial faced with the difficult choice of speaking out for a lenient sentence and risking self-incrimination, or remaining silent and risking a harsh sentence, the Court held the choice did not unconstitutionally burden the defendant's Fifth Amendment right. The Court reasoned that "the criminal process, like the rest of the legal system, is replete with situations requiring `the making of difficult judgments' as to which course to follow . . . .," id. at 213, such as a defendant's decision whether to take the stand and risk strenuous cross-examination and proof of prior convictions. The defendant's difficult, but not unconstitutional, choice in McGautha's unitary trial is essentially the same difficult, but not unconstitutional, choice faced by petitioner in the violation hearing. The possibility of a subsequent proceeding is not a critical difference.4 A defendant at a criminal trial for a substantive offense may wish to speak in his own defense but refrain, fearing a subsequent conspiracy prosecution. The choice is a strategic one, within a setting which requires many strategic choices.

We would view the choice as less strategic were an adverse finding to be based on the fact of defendant's silence, rather than independent evidence, as here. In Palmigiano, supra, the defendant's silence in the prison disciplinary hearing could not be viewed merely as a strategic alternative, since he was advised that it would be held against him. Moreover, he had no right to appointed counsel, the role of retained counsel was limited, the right to call witnesses and cross-examine them was undermined by the possibility that the disciplinary board would rely upon informants, and the proceeding was conducted and the facts ultimately determined by correctional officials. Petitioner, however, was provided with counsel, and both petitioner and his counsel had full opportunity to cross-examine every adverse witness and could have called their own. O'Neill v. Sharkey, 107 R.I. 524, 268 A.2d 720 (1970). The violation hearing was conducted before the State Superior Court. Although the burden of proof was less than that required in a criminal trial, Tillinghast v. Howard, supra, it was not so low that, as in Palmigiano, supra, a mere allegation of wrongdoing, unaccompanied by defendant's explanation or denial, would result in an adverse finding. In McGautha, supra at 213, the Court stated: "It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege."

Petitioner urges upon us a broader analogy than Palmigiano, and likens his plight to that of the defendants in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), where the Court held unconstitutional various penalties (disqualification from public bidding, removal from office, and disbarment) which attached to the valid exercise of the privilege against self-incrimination. Petitioner would have us view the risk of an adverse judgment in the violation hearing as a penalty upon petitioner's right to remain silent in his subsequent criminal trial, stemming from the same incident.

Yet not every undesirable consequence which may follow from the exercise of the privilege against self-incrimination can be characterized as a penalty. For example, it is unlikely that a state's refusal to issue a driver's license unless an...

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