Burbine v. Moran

• Decision Date: 07 June 1984
• Docket Number: Civ. A. No. 83-0293 S.
• Citation: 589 F. Supp. 1245
• Parties: Brian K. BURBINE, Petitioner, v. John MORAN, Director, Department of Corrections, Respondent.
• Court: U.S. District Court — District of Rhode Island

589 F. Supp. 1245

Brian K. BURBINE, Petitioner, v. John MORAN, Director, Department of Corrections, Respondent.

Civ. A. No. 83-0293 S.

United States District Court, D. Rhode Island.

June 7, 1984.

William F. Reilly, Public Defender, Paula Rosin, Asst. Public Defender, Appellate Div., Providence, R.I., for petitioner.

Dennis J. Roberts II, Atty. Gen., Joel D. Landry, Asst. Atty. Gen., Anthony F. DelBonis, Sp. Atty. Gen., Providence, R.I., for respondent.

OPINION AND ORDER

SELYA, District Judge.

This is an application for a writ of habeas corpus brought pursuant to 28 U.S.C. §§ 2241 and 2254. The petitioner, Brian K. Burbine, is currently incarcerated at a state penitentiary. The defendant is the director of Rhode Island's department of corrections.

This proceeding had its origins in the brutal and senseless slaying of a young woman, Mary Jo Hickey, in Providence, Rhode Island, in March of 1977. Burbine was indicted for the crime, tried before a state superior court jury in early 1979, and found guilty of murder in the first degree.¹ He was sentenced to life imprisonment. His appeal to the state supreme court was initially rejected by an equally divided court. State v. Burbine, 430 A.2d 438 (R.I.1981) (Burbine I). A petition for reargument was granted, however, some six weeks later. At full strength for the second go-round, a sharply splintered state supreme court again affirmed the conviction. State v. Burbine, 451 A.2d 22 (R.I. 1982) (Burbine II) The instant application, filed in this court on April 28, 1983, ensued in due course.

After issue had been joined, the petitioner moved to consolidate his application for hearing with the then-pending petition of Samuel Fuentes, No. 82-0071S (despite the fact that Fuentes had been convicted in a separate trial on charges arising from entirely unrelated offenses). Burbine's motion postulated "that both petitions raise precisely the same legal issues." Fuentes and Burbine, it should be noted, shared common counsel.

This court, in August of 1983, denied Burbine's motion to consolidate, without opinion. Shortly thereafter, the Fuentes application was argued here and was dismissed. Fuentes v. Moran, 572 F.Supp. 1461 (D.R.I.1983) (Fuentes I). Fuentes, nothing daunted, appealed the adverse decision.

The court then conferred with counsel in the instant case on October 21, 1983 (the merits having been fully briefed prior thereto). By agreement, proceedings in this cause were held in abeyance (although no formal stay was entered) pending the decision of the court of appeals in respect to Fuentes' appeal. In May of 1984, the First Circuit issued its opinion affirming Fuentes I. Fuentes v. Moran, 733 F.2d 176 (1st Cir.1984) (Fuentes II). This court promptly ordered the filing of supplemental briefs "addressing this case in the albedo of Fuentes II." Following the submission of these briefs, oral arguments were heard on May 31, 1984. Decision was reserved.

I. Factual Background

The facts germane to Burbine's application are fully and fairly set out in Justice Weisberger's majority opinion in Burbine II, and it would be pleonastic to repeat them in an exegetic fashion here. It suffices merely to highlight the most pertinent data, paying heed withal to the obligation of a federal court in a proceeding of this genre "to accord a presumption of correctness to state-court findings of fact." Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982).

The key sequence of events implicated by the instant petition occurred some three months after Hickey's death, when Cranston, Rhode Island police arrested three men, Burbine included, in connection with a break-in. The trio of suspects were brought to the Cranston police station subsequent to 3:00 p.m. on June 29, 1977. One of the Cranston detectives, Ferranti, was then in possession of a lead in respect to Hickey's death, received from a police tipster. After Burbine's arrest, Ferranti put one and one together, accurately arrived at two, and confronted Burbine vis-a-vis the Hickey affair. He informed Burbine of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Burbine, at that time, declined to sign a waiver-of-rights form, and Ferranti went no further with him. Ferranti was cognizant, of course, that Hickey's murder had occurred not in Cranston, but in Providence.

While Burbine remained alone in an interrogation room, Ferranti proceeded to question Burbine's putative accomplices on the breaking-and-entering charge. He extended his questioning to the Hickey homicide, and gleaned from them further information which tended to tie Burbine more tightly into that killing. Ferranti, his suspicions bolstered, then called the Providence police. Three Providence officers (Captain Wilson, Lt. Gannon, Detective Trafford) immediately sojourned to Cranston for the express purpose of questioning Burbine about Hickey's murder. They arrived at approximately 7:00 p.m., spoke with Ferranti, and interrogated Sparks (one of the two men who had been arrested with the petitioner). Gannon and Trafford proceeded to quiz Burbine, with Ferranti present.

Before that examination got underway, however, a parallel series of events began to unfold. Burbine, in connection with other pending criminal charges, was then being represented by attorney Richard Casparian, of the state public defender's office. At approximately 7:45 that evening, Burbine's sister (unbeknownst to him) called the public defender's office seeking to locate Casparian to enlist his aid in connection with Burbine's most recent arrest. She had no inkling at that time that her brother had been implicated in Hickey's demise. Her sole concern was the break-in. Casparian was not about; but the caller reached attorney Barbara Hurst, an appellate specialist in the same office. Hurst, after unsuccessfully trying to reach Casparian, advised attorney Allegra Munson, also an assistant public defender, of Burbine's predicament. By a quarter past 8:00, Munson placed a telephone call to Cranston police headquarters. Justice Weisberger's summary of what next occurred need not be embellished:

At approximately 8:15 p.m., Ms. Munson called the Cranston police station and asked that her call be transferred to the detective division. A male voice responded with the word "Detectives." Ms. Munson identified herself and asked if Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the person that Burbine was represented by attorney Casparian who was not available; she further stated that she would act as Burbine's legal counsel in the event that the police intended to place him in a lineup or question him. The unidentified person told Ms. Munson that the police would not be questioning Burbine or putting him in a lineup and that they were through with him for the night. Ms. Munson was not informed that the Providence police were at the Cranston police station or that Burbine was a suspect in Mary's murder.

Burbine II, 451 A.2d at 23-24.

Contrary to the information imparted to attorney Munson, the Providence police were continuing to question Burbine about Hickey's demise — although the interrogation by Cranston police as to the break-in which had led to the petitioner's arrest was, for aught that appears, ancient history by that time.² Munson's call, of course, did not focus at all on the homicide investigation; she was apparently unaware of it at the moment in question. Munson did not ask to speak with Burbine, nor did she inquire as to why he was in custody (MT. 256). It should likewise be noted that there was absolutely no evidence to indicate that the Providence investigators (or Ferranti, for that matter) were made aware of Munson's call until long after the cat was wholly out of the bag.

It is incontrovertible that, as the evening wore on, Burbine was fully apprised of his Miranda rights on at least two occasions, executed a brace of waiver-of-rights forms, signed a confession shortly after 10:00 p.m., and signed a second inculpatory statement an hour later. The next morning, he appeared in state district court in regard to the breaking-and-entering charge; he was thereafter again interrogated by the Providence police, waived his rights once more, and gave a third written statement anent the Hickey affair. Burbine's indictment followed apace.

At a pre-trial suppression hearing in the state superior court, the petitioner attempted in vain to thwart the prosecution's use at trial of the trilogy of confessions. The trial justice found that Burbine knowingly, intelligently and voluntarily waived his privilege against self-inculpation, and that his right to counsel had not impermissibly been abridged (TT. 6-7). The state thereafter profitably employed the three incriminating statements before the jury. And, subsequent to Burbine's conviction and sentencing, the state supreme court held that suppression was not required. Burbine II, 451 A.2d at 31.

II. Contentions of the Parties

The applicant makes, at bottom, a trio of contentions. He asseverates that the multiple confessions were euchred from him in violation of (i) his sixth amendment right to counsel, (ii) his fifth amendment right against self-incrimination, and (iii) his fourteenth amendment right to due process. The respondent challenges the applicability of the sixth amendment to these facts (and, in any event, sees no sixth amendment infringement); asserts that the finding of voluntariness is supportable and undercuts the fifth amendment claim; and urges that the petitioner in all material respects received process that was due. Further, the state treats Fuentes II as both controlling and dispositive (although conceding at oral argument that the instant proceeding presents a "closer case"); the petitioner, who originally sought to consolidate this case with Fuentes' application on the ground that the two involved identic legal issues,...