807 F.2d 1094 (1st Cir. 1986), 86-1307, Carillo v. Brown

Docket Nº:86-1307.
Citation:807 F.2d 1094
Party Name:John CARILLO, Petitioner, Appellant, v. John N. BROWN, et al., Respondents, Appellees.
Case Date:December 23, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1094

807 F.2d 1094 (1st Cir. 1986)

John CARILLO, Petitioner, Appellant,

v.

John N. BROWN, et al., Respondents, Appellees.

No. 86-1307.

United States Court of Appeals, First Circuit

December 23, 1986

Argued Sept. 8, 1986.

Page 1095

Paul V. Curcio with whom Hinckley, Allen, Tobin & Silverstein was on brief for petitioner, appellant.

Thomas More Dickinson, Sp. Asst. Atty. Gen., Chief, Appellate Div., with whom Arlene Violet, Atty. Gen., was on brief for respondents, appellees.

Before TORRUELLA, Circuit Judge, WISDOM [*] and ALDRICH, Senior Circuit Judges.

WISDOM, Senior Circuit Judge:

John Carillo, serving a life sentence for murder and a sentence of ten years for conspiracy to murder, appeals from the district court's denial of the writ of habeas corpus. The petitioner makes two contentions. First, he asserts that state police officers violated his Fourteenth Amendment right to due process by applying benzidine, a carcinogenic chemical, to his skin; that this was an illegal search; that because the fruits of this alleged unlawful search (test) were not suppressed he was denied a fair trial. Second, he contends that he was denied a fair trial because the prosecutor's cross-examination implied guilt from the petitioner's exercise of his Fifth and Sixth Amendment rights to remain silent and to receive assistance of counsel. The petitioner filed a motion for an evidentiary hearing on his habeas claim. The district court denied this motion and dismissed the action for failure to state a claim upon which relief may be granted. We affirm.

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I.

Donald Price was a security officer at the Adult Correctional Institute in Cranston, Rhode Island. On June 22, 1973, he was guarding a dormitory of prisoners, one of whom was Carillo. Shortly after 12:30 a.m., Price broadcast a distress call. Security guards answered his call and found him on the floor of the dormitory in a pool of blood. He was dying as a result of nine stab wounds. He bled profusely and blood was splattered on the walls.

State police officers arrived within minutes of Price's call for help, began a search, and seized a sharpened table knife that bore a residue of blood. The large amount of blood on Price and in the room suggested the likelihood that the attacker had come in contact with the victim's blood. The state police seized John Carillo's blood-stained undershorts and bedsheets.

Prior to any arrests, one of the prisoners told the state police that he had seen Carillo and another inmate fleeing from the murder scene shortly after he heard Price scream. That other inmate, an accomplice, told the police that Carillo killed Price. The police arrested Carillo.

The police officers noticed a substance that appeared to be blood on Carillo's arm. They applied the chemical reagent benzidine directly to Carillo's body. Benzidine is commonly used to detect blood on a surface. When a benzidine solution comes into contact with blood, it turns blue. Carillo's skin turned blue in various places; the prosecutor exhibited to the jury photographs of Carillo showing bluish splotches on his body.

At a pre-trial suppression hearing, Carillo filed a standard Fourth and Fourteenth Amendment motion to suppress the evidence showing the results of the benzidine test. His entire emphasis was on the exclusionary rule. First, he contended that without a warrant the test was a search incident to an unlawful arrest. Second, he contended that the scope of the warrantless search was unreasonable. He put on evidence as to the first allegation. He put on no evidence of the unreasonableness of the search (the test) itself, that is, the hazardous nature of benzidine, and made no effort to show that the officers knew or should have known of the hazards related to the use of benzidine. The court found that the benzidine was applied incident to a lawful arrest and denied his motion to suppress. A Rhode Island Superior Court jury convicted Carillo of murder and conspiracy to murder. The evidence of guilt was overwhelming.

On appeal of his conviction to the Rhode Island Supreme Court, Carillo argued for the first time that the search violated his Fourth and Fourteenth Amendment rights because benzidine can cause bladder cancer. Its direct application was, he alleged, an unreasonable risk to his life; benzidine is, in fact, carcinogenic when applied to the skin.

In spite of Carillo's not having raised the issue at the trial level, the Rhode Island Supreme Court examined the record to see if the officers who applied the benzidine knew that it was carcinogenic when they used it on Carillo's skin. In the suppression hearing and in the trial Carillo had not presented evidence of the hazards of benzidine or the officers' knowledge of its danger. One prosecution witness had testified that the chemical was an irritant. Another had testified that it was carcinogenic when applied to the skin. Because of no evidence in the record showing that the officers who applied the benzidine to Carillo knew that it was carcinogenic in such an application, the Rhode Island Supreme Court held that the test was reasonable. 1

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Carillo also contended on appeal that the benzidine test was improper because no exigent circumstances justified a warrantless search. The Rhode Island Supreme Court noted that redress on that issue might be available to Carillo on post-conviction relief. 2 The Rhode Island Supreme Court affirmed the conviction. 3

Carillo then applied to the state trial court for post-conviction relief, contending that the benzidine test violated his Fourth and Fourteenth Amendment rights. He sought to introduce evidence of the dangers of benzidine for the purpose of showing that a search involving the use of benzidine required a warrant. The trial justice denied the writ, holding that Carillo had raised no issues of fact not fully covered in the record and that, therefore, there was no need for an evidentiary hearing. On the law, he held that Carillo had waived his objection based on the reasonableness of the search without a warrant by failing to press his objection in the suppression hearing.

Carillo appealed the denial of post-conviction relief to the Rhode Island Supreme Court. He argued that he should have been permitted to present additional evidence on the legality of the search. The Rhode Island Supreme Court affirmed the trial court, 4 repeated its earlier holding that the test was reasonable, 5 and added that the issue of reasonableness also was precluded by res judicata. 6 The Rhode Island Supreme Court stated that it agreed with the trial court that Carillo had waived his right to a reconsideration of the issue. 7 The court observed that the "notions" of waiver and res judicata are closely related, but preferred to decide the case against Carillo on the basis of res judicata. 8 The

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court affirmed the denial of post conviction relief. 9

Carillo then filed a petition under 28 U.S.C. Sec. 2254 for a writ of habeas corpus in the federal district court in Rhode Island. He alleged violations of his Fourteenth Amendment due process rights arising from the benzidine test. He sought an evidentiary hearing on the question whether state officials knew or should have known of the carcinogenic effects of benzidine when they applied it to his skin. He also alleged violations of his Fifth and Sixth amendment rights arising from his cross-examination at trial. The respondents sought dismissal alleging waiver (deliberate bypass), lack of exhaustion, and other defenses. The district court denied relief.

FOURTEENTH AMENDMENT ISSUE

The petitioner bases his due process claim on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), 10 holding that the Fourteenth Amendment outlaws state police actions that offend human dignity in a manner that "shocks the conscience" of the court. Evidence obtained from such actions must be suppressed. Rochin was an especially egregious example of police misconduct. The police officers "jumped" Rochin, tried to force open his mouth in attempting to extract two capsules which he put in his mouth and later swallowed, handcuffed him, and took him to a hospital. At the direction of one of the officers, a doctor forced an emetic solution through a tube into Rochin's stomach against his will. Rochin vomitted the two capsules which proved to contain morphine. The United States Supreme Court held that the police methods offended "a sense of...

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