People v. Rocha, Docket No. 77-2935

• Decision Date: 17 October 1978
• Docket Number: Docket No. 77-2935
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ROCHA, Defendant-Appellant. 86 Mich.App. 497, 272 N.W.2d 699
• Court: Court of Appeal of Michigan — District of US

Page 699

272 N.W.2d 699

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ROCHA, Defendant-Appellant.

Docket No. 77-2935.

86 Mich.App. 497, 272 N.W.2d 699

Court of Appeals of Michigan.

Oct. 17, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 499] Markus S. Simon, Detroit, for defendant-appellant.

[86 MICHAPP 498] Frank J. Kelley, Atty. Gen., Robert A. [86 MICHAPP 499] Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Timothy Scallen, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and BEASLEY and MAHINSKE, ^* JJ.

KAUFMAN, Presiding Judge.

On December 17, 1976, defendant pled guilty to possession of heroin, contrary to M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was sentenced to two years probation. On April 6, 1977, defendant was charged with two counts of possession of heroin with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He pled not guilty to these new charges.

Probation violation proceedings were then instituted and a hearing held on April 22, 1977. At the hearing, defense counsel requested an adjournment pending disposition of the underlying criminal charges. The court denied this request and proceeded with the hearing. Prosecution witnesses testified as to the circumstances of the violation, but defense counsel refused to cross-examine them. Defendant refused to testify in his own behalf, specifically because he feared that any incriminating statements he might make would be used against him at a later trial.

Despite defendant's objections, the court found him guilty of probation violation and sentenced him to three to eight years in prison ¹ on April 29, 1977. Defendant appeals as of right.

[86 MICHAPP 500] At issue in this appeal is the propriety of the prosecution's timing of the probation revocation hearing prior to the trial on the underlying criminal charges. Our Court has discussed facets of this problem in three recent cases. In People v. Baines, 82 Mich.App. 438, 266 N.W.2d 339 (1978), the Court saw the issue as whether the trial court's refusal to delay the probation revocation hearing violated defendant's Fifth Amendment right against self-incrimination. After noting that the trend of authority ² favored holding the trial first, the Court declined to reach the substantive issue because the defendant had in fact testified at the probation revocation hearing and later pled guilty to the underlying offense. Thus, the prejudice feared was not thought to be present.

When defendant Baines appealed from his guilty plea conviction, this Court had occasion to consider another aspect of the problem. People v. Baines, 83 Mich.App. 570, 573, 269 N.W.2d 228 (1978). Baines argued that holding the revocation hearing first created " 'unjustifiable tension' between the defendant's rights to due process and the right to be free from duress when he enters a plea". The Court rejected this argument, viewing it as essentially an attack on the process of plea bargaining [86 MICHAPP 501] itself. Judge D. E. Holbrook, Jr., dissenting, wrote:

"Absent a rule preventing the use of a probationer's revocation hearing testimony at the subsequent trial, I believe it is fundamentally unfair to hold the revocation hearing prior to the trial on the substantive offense when the sole basis for revoking probation is a finding that the probationer committed the substantive offense. Whether or not constitutionally mandated, such a rule is necessary to prevent a chill on a probationer's exercise of his right to due process of law and his privilege against self-incrimination." 83 Mich.App. at 574, 269 N.W.2d at 230.

We agree with the above analysis and, but for the fact that defendant Baines did take the stand at the probation revocation hearing and did not claim any violation of his constitutional rights, we would find the present case indistinguishable from Baines.

The third case to consider the problem of timing was People v. Nesbitt, 86 Mich.App. ---, 272 N.W.2d 210 (1978). In that case as well, the defendants failed to preserve the issue and suffered no prejudice, because they testified at the hearing without first objecting on Fifth Amendment grounds or requesting an adjournment. The Court implied that there might be Fifth Amendment problems should the prosecutor seek to introduce the hearing testimony at a subsequent trial, but stated that the appropriate proceeding to resolve them would be the trial itself. Despite this, the Court then went on to state, in the context of reviewing a statutory argument presented by defendants, that there was "no reason" why the revocation hearing should not precede the trial. Judge Riley, concurring in the result, wrote that this language was unnecessary to the decision and too broad in scope.

[86 MICHAPP 502] In the case at bar the situation Is ripe for decision on the principal issue. Defendant Rocha was deterred from taking the stand at the probation revocation hearing, due to his fear that his testimony would be used in a subsequent trial on the underlying charge.

Although a probation revocation hearing is not a criminal trial, the probationer is entitled to certain due process rights at that proceeding. These rights include 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 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). At a probation revocation hearing, unlike a criminal trial, the evidence which the defendant may present and the trier must consider includes mitigating circumstances. This is because probation revocation encompasses a two-step analysis: 1) a factual determination of whether the defendant violated the terms of his probation, and 2) a discretionary determination of whether the violation warrants revocation. Morrissey, 408 U.S. at 479-480, 92 S.Ct. 2593; Gagnon, 411 U.S. at 784, 93 S.Ct. 1756; People v. Clements, 72 Mich.App. 500, 503, 250 N.W.2d 100 (1976); People v. Givens, 82 Mich.App. 336, 339, 266 N.W.2d 815 (1978). Upon a finding that the defendant has violated probation, the court still may wish to permit him to retain his conditional liberty if the circumstances of the case so warrant. Clements, supra, 72 Mich.App. pp. 504-505, 250 N.W.2d 100.

The importance of the defendant's right to present evidence in mitigation was stressed by the California Supreme Court in People v. Coleman, 13 Cal.3d 867, 874, 120 Cal.Rptr. 384, 391, 533 P.2d 1024, 1031 (1975):

"A probationer is by definition a convicted lawbreaker.[86 MICHAPP 503] Insofar as a probationer seeks at a revocation hearing to deny or contradict the evidence of a probation violation, he is generally at a disadvantage in terms of the credibility of his testimony. His testimony is likely to be more readily accepted, and hence more useful to the court, insofar as it adds to rather than detracts from the factual picture presented by the state, through the probationer's explanation of his actions and account of the circumstances surrounding an alleged probation violation. But such mitigating evidence is just what is most likely to be withheld from the court by virtue of the probationer's fear of self-incrimination, since mitigating evidence often involves damaging factual admissions coupled with more or less compelling moral excuses." (Emphasis added.)

The Coleman Court held that the prosecutor must either grant use and derivative use immunity for defendant's probation revocation hearing testimony, or else hold the violation hearing after the trial on the underlying charge. Rhode Island's Supreme Court has reached the same result. State v. DeLomba, 370 A.2d 1273 (R.I.1977). Both Courts were concerned with possible prosecutorial misuse of a fair government-individual balance. As stated in Coleman:

"Indeed, to the extent that the object of the prosecution is simply to secure the probationer's incarceration, whether by revocation of probation or by conviction and sentencing for the new offense, the prosecution's instigation of a pretrial probation revocation hearing currently puts it in a 'tails we win, heads you lose' position vis-a-vis the probationer. Because of the inapplicability of certain evidentiary rules and the lower standard of proof obtaining at a probation revocation hearing, the People are generally more likely to achieve a probationer's incarceration through the probation revocation process than through the new prosecution and conviction. When a probationer is deterred from testifying at his revocation hearing by fears of self-incrimination at [86 MICHAPP 504] his subsequent trial, the People's chances of securing his incarceration through the revocation proceeding are further enhanced. And if a probationer does successfully fight revocation by testifying at the hearing, the People's chances of securing his conviction of a new offense will have been improved by the probationer's having been forced, in effect, to be one of the prosecution's principal witnesses in its case in chief at his trial." Coleman, supra, 13 Cal.3d at 876-878, 120 Cal.Rptr. at 393, 533 P.2d at 1033. (Footnotes omitted.)

The present procedure forces upon the probationer a choice which he should not, in the interests of fairness, be required to make. The issue is whether forcing the defendant at a revocation hearing to choose between either testifying and incriminating himself later at trial, or else remaining silent and surrendering a valuable defense, constitutes an impermissible penalty for the exercise of the privilege against self-incrimination. We are certain that to place the defendant in such a dilemma is inconsistent with our notions of substantial justice, but we are not certain that our result is constitutionally-compelled. The United States Supreme Court has not passed upon this precise issue, and lower court cases...