Palmigiano v. Houle

• Decision Date: 08 April 1980
• Docket Number: No. 79-1372,79-1372
• Citation: 618 F.2d 877
• Parties: Nicholas A. PALMIGIANO, Petitioner-Appellant, v. Robert E. HOULE, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 877

618 F.2d 877

Nicholas A. PALMIGIANO, Petitioner-Appellant, v. Robert E. HOULE, Respondent-Appellee.

No. 79-1372.

United States Court of Appeals First Circuit.

Argued Jan. 9, 1980.

Decided April 8, 1980.

Judith Farris Bowman, by appointment of the Court, with whom Bowman & Bowman, Cambridge, Mass., was on brief, for petitioner-appellant.

John S. Foley, Sp. Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R. I., was on brief, for respondent-appellee.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from a denial, without an evidentiary hearing, of a petition for habeas corpus alleging state violations of petitioner's fourth amendment rights. The United States District Court for the District of Rhode Island held that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), barred federal habeas corpus relief because petitioner's fourth amendment claims were fully litigated in the state courts of Rhode Island. Petitioner claims that there was no "full and fair litigation" within the meaning of Stone v. Powell because the Rhode Island Superior Court erroneously put the burden of proof on him as to the alleged fourth amendment violations at the state court post-trial habeas corpus hearing.

A brief exposition of the procedural background will help delineate the issues. After petitioner's warrantless and allegedly illegal arrest, a wound in his left wrist was medically examined, his fingerprints were taken, and four lineup identifications were made. All of this was used as evidence at his trial for robbery-murder. ¹ Petitioner's appeal from his conviction did not raise any fourth amendment claims. After his conviction was affirmed, ² a petition for habeas corpus based on alleged fourth amendment violations was filed with the Rhode Island Supreme Court, which denied it without prejudice and remanded to the Superior Court for an evidentiary hearing under Rhode Island's post-conviction relief statute.

At the evidentiary hearing, the state trial justice ruled that petitioner had the burden of proving his warrantless arrest lacked probable cause and that the entry of the police into the premises where he was arrested was not voluntary. In his opinion, the justice ruled as follows:

It is elementary that in civil proceedings one who brings the complaint bears the burden of sustaining his allegations. Not only did the petitioner not sustain his allegations as to a lack of probable cause and Mrs. Salvatore's consent, the State presented more than ample evidence that there was probable cause and that voluntary consent to the entry was in fact given by Mrs. Salvatore.

The Rhode Island Supreme Court affirmed. Palmigiano v. Mullen, 377 A.2d 242 (R.I.1977). It ruled that the trial justice erred in holding that petitioner had the burden of disproving consent, ³ but that the error did not require reversal because it did not prejudice petitioner. The Rhode Island Supreme Court focused on the above-quoted holding of the Superior Court justice and held:

It is clear from this statement that even if he had determined that the state bore the burden of proof, he would still have concluded that the consent was voluntary and that the petitioner's arrest was legal. As a result, we conclude that the trial justice's misallocation of the burden of proof did not constitute reversible error.

Id. at 248.

The question of whether Stone v. Powell bars federal habeas corpus relief under these circumstances requires an examination of the totality of the state proceedings to determine whether they provided the petitioner the opportunity fully and fairly to litigate his fourth amendment claims. Pignone v. Sands, 589 F.2d 76, 79 (1st Cir. 1978).

We start first with the facts as gleaned from the record of the state habeas corpus proceeding. On April 10, 1969, a Brinks armored truck was robbed at the plant of H. P. Hood & Sons in Providence, Rhode Island, and one of the guards was shot during the robbery. After arriving at the scene, the police interrogated witnesses and obtained the following information. One of the Brinks guards shot at the robber and thought he wounded him. The robbery was carried out by a man wearing a woman's wig, gloves, eye glasses, and women's shoes. The robber dropped the money and discarded the disguise as he fled from the scene. Blood drippings were found in a warehouse adjacent to the plant along with parts of the disguise. One of the witnesses saw a man disguised as a woman go into an alley near the scene carrying a black suitcase and emerge a short time later driving a yellow station wagon. The description given by this witness included height, build, complexion and hair, all of which fitted petitioner. The station wagon, which was found abandoned not far from where petitioner lived, had bloodstains in it. It had been stolen from a company adjacent to H. P. Hood & Sons.

Two members of the Providence Police Department, Eddy and O'Connell, were told by an informant in June of 1968 that one Gerald Mastracchio had asked him and others to join in a holdup of a Brinks armored car at or near the H. P. Hood plant. According to the informant, Mastracchio picked this location because he had observed the armored car pickup routine from a bridge that overlooked the plant. The informant also told the police that the robbery plans included the use of a costume.

Petitioner was known to the police as a companion of Mastracchio. Mastracchio was seen immediately prior to the robbery when he drove a motorcycle directly in front of the armored car, causing it to slow down. He was also observed parked in the vicinity of H. P. Hood & Sons talking to an unknown person at the time of the robbery. Petitioner and Mastracchio had been seen together on Mastracchio's motorcycle a few days prior to the robbery.

After questioning the witnesses at the scene, the police sent out an order to pick up Mastracchio for questioning. On learning that a yellow station wagon had been found abandoned near where petitioner lived, the police began a search for petitioner. Mastracchio was soon picked up and, with him in custody, the police went to petitioner's home but failed to find him. They were then informed by a person described at the hearing as a "reliable informant" that petitioner had been seen entering the apartment of his aunt, Mrs. Barbara Salvatore. Petitioner was known to have lived there from time to time. In fact, Mrs. Salvatore characterized her apartment as petitioner's second home.

Between five and ten policemen went to the Salvatore apartment. No arrest warrant had been obtained for petitioner. The officers knocked at the door and one of them said, "Open up, we know he's there" or words to that effect. One of the officers testified that, since the door was hung with its hinges on the outside, he and another officer started to take the door off the hinges. There was testimony by another officer that no attempt was actually made to unhinge the door, but it was discussed. In any event, the door was opened shortly by Mrs. Salvatore, and the police entered the apartment and arrested petitioner. Officer O'Connell testified that Mrs. Salvatore was hysterical with fear when she opened the door and said, "Be careful, my two kids are in the room." According to O'Connell, when petitioner appeared, Mastracchio, who was still with the police, yelled at him, "They want you. They don't want me." Officer Lawton testified that when Mrs. Salvatore opened the door she said, "He's in the bedroom with the children. Be careful."

Mrs. Salvatore testified at the hearing to the following effect. When petitioner came to the apartment, he was hurt in one of his wrists; she did not remember whether it was his left or right one. He said he wanted to wash his arm off and she told him to use peroxide. She was in the process of taking some garbage out into the hallway when she heard a rumbling in the hallway, so she looked out a window and saw "cops with guns pointing at the window." She did not know why the police were there. Then there was a banging at the door. She told the petitioner that "it was all cops outside." She heard the police say, "Don't shoot. I heard kids crying." She then heard someone else say, "Go get a hatchet. We will break it down." When she heard this, she opened the door and the police came into the apartment. She did not hear any talk about the door being removed from the hinges.

Later in the morning Mrs. Salvatore gave a signed statement to Officer Fuina in which she said that she gave her consent to the police to search her apartment. In the statement, she said that, after petitioner had arrived at her apartment, she received a telephone call from a sister-in-law who told her about the robbery and that a guard had been shot. The sister-in-law then said that she hoped that petitioner was not involved. There was nothing in the statement about hearing the police say they were going to get a hatchet and break the door down. The statement does, however, contain the following: Mrs. Salvatore heard the police knocking on the door downstairs. She told petitioner that she was going to open the door, whereupon he said, "Don't open the door." She replied, "I have to. They are going to break the door."

After receiving briefs from the parties, the state trial justice, in a comprehensive opinion, made specific findings and rulings. He found probable cause to arrest and exigent circumstances. In finding that the consent for entrance into the premises was voluntary, the trial court stated:

The Court discounts Mrs. Salvatore's testimony that she opened the door for the police because she believed that they were going to break the door down. She testified that she heard one of them say, "Get a hatchet we'll chop the door down." On the contrary, the only reasonable inference which can be drawn from the credible evidence is that...