McCracken v. Corey

• Citation: 612 P.2d 990
• Decision Date: 30 May 1980
• Docket Number: No. 3503,3503
• Parties: Jack Jeffrey McCRACKEN, Petitioner-Appellant, v. Theodore COREY, Superintendent, or any other person in charge of the Fairbanks Correctional Center, Division of Corrections, State of Alaska, Respondent-Appellee.
• Court: Supreme Court of Alaska (US)

Page 990

612 P.2d 990

Jack Jeffrey McCRACKEN, Petitioner-Appellant, v. Theodore COREY, Superintendent, or any other person in charge of the Fairbanks Correctional Center Division of Corrections, State of Alaska, Respondent-Appellee.

No. 3503.

Supreme Court of Alaska.

May 30, 1980.

Gail Roy Fraties, Joseph M. Moran and A. Lee Petersen, Fraties & Petersen, Anchorage, for petitioner-appellant.

David Mannheimer, Asst. Atty. Gen., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for respondent-appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

OPINION

CONNOR, Justice.

This is an appeal from a denial of a writ of habeas corpus.

McCracken was arrested and charged with being a felon in possession of a firearm, a violation of both Alaska law ¹ and the conditions of his parole. ² A parole revocation hearing was scheduled prior to his trial on the criminal charges. ³ McCracken applied for a temporary restraining order and preliminary injunction staying the revocation proceeding until after the criminal trial. He claimed that failure to reverse the order of proceedings would force him to stand mute at the hearing in order to preserve his defenses at the criminal trial. The superior court decided that the revocation hearing could proceed, with the proviso that the hearing be closed to all persons other than those "essentially necessary" and that "any testimony given on behalf of the defense shall not be used against the defendant in any way whatsoever . . . ."

McCracken did not testify under oath at the revocation proceeding or present any witnesses. After hearing the testimony of witnesses presented by the state, the board of parole found that McCracken had violated his conditions of release by unlawfully possessing a firearm and remanded him to custody to continue serving his original sentence. ⁴ Four months later, the trial of the criminal charges ended in acquittal on all counts.

McCracken's petition for a writ of habeas corpus claiming denial of due process at the revocation hearing was denied. He now appeals.

I.

First, petitioner argues that the lower court erred in holding that the denial of the preliminary injunction is res judicata in the habeas corpus proceeding. We agree. Historically, res judicata did not operate as a bar to habeas corpus. ⁵ As the Supreme Court stated in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837, 859-60 (1963):

"It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas corpus proceedings . . . is really but an instance of the larger principle that void judgments may be collaterally impeached." (citations omitted)

We also agree with the Supreme Court's statement in Darr v. Burford, 339 U.S. 200, 214-15, 70 S.Ct. 587, 596, 94 L.Ed.2d 761, 772-73 (1950):

"All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice through judicial error." (footnote omitted) ⁶

II.

Second, petitioner claims that, notwithstanding the grant of immunity bestowed by the superior court, the scheduling of the revocation hearing prior to the trial on the criminal charges forced him to make an unconstitutional election between his due process right to present a defense at the hearing ⁷ and his right against compulsory self-incrimination. ⁸ Although we were not required to address the question then, in State v. DeVoe, 560 P.2d 12 (Alaska 1977), Justice Rabinowitz in a concurring opinion wrote:

"When the probation revocation proceeding is based upon alleged criminal conduct as to which the probationer's innocence or guilt remains to be adjudicated in a criminal proceeding, there is the possibility of dilution of the probationer's privilege against self-incrimination . . . . In my view this is a problem of some significance which calls for solution."

Id. at 16. We are now presented with an opportunity to address this issue.

It is clear that the parolee is entitled to certain due process rights at a parole revocation hearing, including the "opportunity to be heard in person and to present witnesses and documentary evidence." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972); See also Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656, 664 (1973) (probation revocation hearing); McGinnis v. Stevens, 543 P.2d 1221, 1236 (Alaska 1975) (prison disciplinary hearing). ⁹ These due process requirements are designed to insure an accurate fact-finding process as well as the informed use of discretion by the parole board, Gagnon v. Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761, 36 L.Ed.2d at 663, for it would serve neither the interest of the state nor that of the parolee to revoke conditional liberty on the basis of erroneous information.

It is also clear that permitting a parolee's testimony at a revocation hearing to be used against him in a subsequent criminal trial for the very conduct which forms the basis of revocation is potentially incriminating. In Scott v. State, 519 P.2d 774, 786 (Alaska 1974), we reaffirmed that "(t)he fundamental right not to incriminate one's self . . . 'extends not only to answers that would in themselves support a conviction but also to those which might furnish a link in the chain of evidence leading to a conviction.' " (footnote omitted) quoting from McConkey v. State, 504 P.2d 823, 826 (Alaska 1972).

The United States Supreme Court has held that an individual has a constitutional right to remain silent in any "proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973), Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810, 820 (1976). Petitioner maintains that in exercising his right to remain silent "he was penalized by virtue of the loss of his due process rights" to put on a defense at the revocation hearing. The United States Supreme Court has repeatedly condemned the practice of imposing a substantial penalty for the exercise of the privilege against self-incrimination. The most recent decision in this area is Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). In that case, an officer of a political party was told that if he refused to testify before a grand jury or waive immunity from the later use of his testimony under the New York Election Law he could be removed from his party office and prohibited from holding office for five years. The Court held that the Fifth Amendment prohibits a state from compelling testimony "by threatening to inflict potent sanctions unless the constitutional privilege is surrendered . . . ." Id. at 805, 97 S.Ct. at 2135, 53 L.Ed.2d at 7.

Lefkowitz affirmed the teaching of a long line of cases that the state cannot condition the exercise of the privilege against compulsory self-incrimination upon the forfeiture of another constitutionally protected right. ¹⁰ In all of these cases, the "penalty" imposed for the assertion of the privilege against self-incrimination was the automatic loss of a tangible benefit, such as a job or a contract. The question here is whether forcing the defendant at a revocation hearing to choose between producing evidence which may incriminate him at later trial or remaining silent and foregoing a valuable defense, constitutes a penalty for the exercise of the privilege against self-incrimination.

In another line of cases, the Supreme Court has addressed the problem of whether the surrender of one constitutional right for the exercise of another imposes an impermissible penalty. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court held that when a defendant testifies at a suppression hearing on the issue of standing to object to evidence, his testimony may not thereafter be admitted against him on the issue of guilt. Reasoning that this placed the defendant in a position where he "was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or . . . to waive his Fifth Amendment privilege against self-incrimination" the Court found it "intolerable that one constitutional right should have to be surrendered in order to assert another." Id. at 394, 88 S.Ct. at 976, 19 L.Ed.2d at 1259.

A subsequent Supreme Court decision, McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), has cast doubt on the continued validity of this language in Simons. ¹¹ That case involved a challenge to Ohio's procedure of having a single trial on the issues of guilt and punishment. In rejecting the defendant's contention that this procedure presented an intolerable tension between his due process right to address his sentencer and his privilege against self-incrimination, the Court noted that the choice was analogous to many other difficult choices which criminal defendants and their attorneys routinely face. "The threshold question," the Court concluded, "is whether compelling the election (between the exercise of constitutional rights) impairs to an appreciable extent any of the policies behind the rights involved." ¹² Id. at 212, 91 S.Ct. at 1470, 28 L.Ed.2d at 729. One year later in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), the Court held that a statute requiring the defendant to testify, if at all, before any other defense witnesses could testify unconstitutionally infringed on the right to remain silent "by making its assertion costly." Id. at 611, 92 S.Ct. at 1894, 32 L.Ed.2d at 363.

The Supreme Court's most recent pronouncement on the issue of conflicting constitutional rights is in Baxter v. Palmigiano, ...