Flint v. Mullen

• Decision Date: 03 January 1974
• Docket Number: Civ. A. No. 5251.
• Citation: 372 F. Supp. 213
• Parties: Robert W. FLINT, Jr. v. James MULLEN, Warden Adult Correctional Institutions.
• Court: U.S. District Court — District of Rhode Island

372 F. Supp. 213

Robert W. FLINT, Jr. v. James MULLEN, Warden Adult Correctional Institutions.

Civ. A. No. 5251.

United States District Court, D. Rhode Island.

December 26, 1973.

Addendum to Opinion January 3, 1974.

Ralph J. Gonnella, Providence, R. I., for plaintiff.

Donald P. Ryan, Asst. Atty. Gen., of R. I., Providence, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

Petitioner is presently incarcerated by the State of Rhode Island in the Adult Correctional Institutions and seeks a writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 requesting that the sentence imposed upon him by the Superior Court of Rhode Island on February 26, 1970 at the conclusion of a deferred sentence violation hearing be vacated. Essentially, petitioner raises two legal issues. First, he alleges that the holding of the deferred sentence violation hearing based upon conduct also supporting a new indictment prior to the criminal trial on the new indictment, forced petitioner to make an unconstitutional choice between waiving his Fifth Amendment privilege against self-incrimination and the right to remain silent against his due process right to a full and fair deferred sentence violation hearing. As part of his challenge to the above procedure, petitioner also alleges that holding the violation hearing prior to the criminal trial based upon the same conduct places him in an unequal position at trial as against other criminals because the deferred sentence violation hearing provides the prosecutor with an opportunity for discovery beyond that normally permitted. Second, petitioner alleges that the sentence is unconstitutional because the standard of proof employed to determine violations falls short of due process requirements.

FACTS

In 1964, petitioner pleaded guilty to three counts of robbery. On two of these counts he was sentenced to prison, but on the third, petitioner entered into a deferred sentence arrangement as authorized by Rhode Island General Laws 1956, § 12-19-19, whereby petitioner was to be placed on probation for five years from the date of his release from prison on the first two counts. As a result, his period of probation began to run when he was paroled in October 1967. In 1969, petitioner was arrested and indicted for the robbery of the Old Stone Bank to which he pleaded not guilty.

Subsequent to the indictment, but prior to the criminal trial for the robbery, the State moved for the Superior Court to declare petitioner in violation of the deferred sentence agreement and a hearing date was set for December, 1969. Petitioner immediately filed writs of prohibition and mandamus in the Rhode Island Supreme Court in an attempt to postpone the violation hearing until after he was tried on the new indictment alleging, inter alia, that the violation hearing would compel him to incriminate himself and reveal his defense prior to the trial. Petitioner's objections were rejected respectively by the Rhode Island Supreme Court in Flint v. State, 106 R.I. 823 (1969), the United States District Court, and the United States Court of Appeals for the First Circuit, Flint v. Rhode Island, No. 361 (January 8, 1970).

The violation hearing began on January 14, 1970 and on that date court appointed counsel for petitioner stated that there were facts favorable to the defense that should be presented and that it was his opinion that the defendant should take the stand and testify. During this portion of the hearing, petitioner informed the court that he and his counsel were at odds and on January 20, 1970 counsel was permitted to withdraw and new counsel was appointed causing a continuance of the hearing until February 25. Prior to the appointment of new counsel the State presented five witnesses. Petitioner cross-examined each witness while his counsel limited his cross-examination to the three police officers. All five witnesses originally called by the State were recalled when the hearing resumed on February 25 and petitioner's newly appointed counsel cross-examined each of them. However, despite the strong case presented by the State, petitioner's counsel informed the court at the close of the presentation of the State's evidence that petitioner chose to present no evidence and to not take the stand because he felt that by taking the stand at that time with the new indictment pending, he would be forced to incriminate himself in regard to the subsequent trial and would reveal the defense he planned for the upcoming trial. Relying on the uncontradicted testimony presented by the State, the Superior Court then found the petitioner in violation of his deferred sentence agreement and sentenced him to twelve years. Nine months later, petitioner was tried and acquitted on the robbery charge which constituted the basis of his deferred sentence violation.

EXHAUSTION OF STATE REMEDIES

Petitioner has presented his first contention to the Supreme Court of Rhode Island in Flint v. Howard, 291 A.2d 625 (R.I.1972), thus exhausting his state court remedies pursuant to 28 U.S.C. § 2254. However, the State contends that petitioner did not challenge the standard of proof employed in the violation hearing in Flint v. Howard, supra. The record does not support this contention. The Supreme Court of Rhode Island addressed directly the issue what is the standard or proof necessary to find petitioner in violation of the deferred sentence agreement, writing at p. 631-632:

"He makes much of this fact, arguing inferentially that if he had been tried on the indictment first, his acquittal would be an effective bar to finding him in violation of his deferred sentence agreement.

That such would be the case, however, is simply not supported by any case cited by petitioner, nor discovered by our considerable independent research. And this is not because the question has remained at large.

* * * * * *

Again in Charest v. Howard, R.I., 285 A.2d 381 (1972) and Broccoli v. Kindelan, 80 R.I. 436, 98 A.2d 67 (1952), we held that whereas a jury must be convinced beyond a reasonable doubt in order to convict, the decision of a revoking justice is reversible only if such decision is arbitrary or capricious."

DISCUSSION

Two essential factors must be found before petitioner's application for a writ of habeas corpus can be granted. First, petitioner must have been forced to make an unconstitutional choice at his deferred sentence violation hearing which resulted in the surrender of one constitutional right in order to assert another constitutional right similar to the situation in Simmons et al. v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968) and distinguishable from the situation in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). Second, although closely intertwined with the first, constitutional due process must be found to apply to a deferred sentence violation hearing to the extent that petitioner's right to testify personally and present evidence in his behalf take on constitutional dimensions.

The issue before the Supreme Court in Simmons v. United States, supra, was whether testimony given by a defendant in a hearing based upon his motion to suppress evidence allegedly obtained in violation of his Fourth Amendment rights should be admissible against him at trial on the issue of guilt. Concluding that this testimony is not admissible at the subsequent trial, the court at p. 393-394 of 390 U.S. at p. 976 of 88 S.Ct. stated:

"For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment's Self-Incrimination Clause because the testimony was voluntary. As an abstract matter, this may well be true. A defendant is `compelled' to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the `benefit' to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another."

Thus, the Supreme Court in Simmons concluded that where the Constitution requires that a defendant be given a specific right or protection, the State may not put the defendant in a position whereby that constitutional right may be exercised only at the price of giving up another constitutional right. To do this places a party in a untenable position not wholly unlike a coerced statement.

Furthermore, the First Circuit in Palmigiano v. Baxter, 487 F.2d 1280 (1973) recently held that limitations upon due process rights may not be upheld simply by a finding that the limitations are rationally related to a legitimate state goal. In Palmigiano, a case involving some similar questions, but in the context of a prison disciplinary hearing, the court found that once the right asserted takes on due process dimensions, the State may not abrogate the right if the right presents only a minimal burden upon the State and does not drastically detract from the intended State purpose. By analogy, the court at p. 1287 noted:

"The government's obligation here is fundamentally the same as that underlying its obligation to use `less drastic means' when infringing upon First

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