State v. Randall

• Decision Date: 27 December 1976
• Citation: 27 Or.App. 869,557 P.2d 1386
• Parties: STATE of Oregon, Respondent, v. Charles Kent RANDALL, Appellant.
• Court: Oregon Court of Appeals

Page 1386

557 P.2d 1386

27 Or.App. 869

STATE of Oregon, Respondent, v. Charles Kent RANDALL, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 21, 1976.

Decided Dec. 27, 1976.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. On the brief were Gary D. Babcock, Public Defender, and John K. Hoover, Deputy Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and TANZER and RICHARDSON, JJ.

RICHARDSON, Judge.

Defendant was on parole when he was indicted for criminal activity in drugs. He appeals the conviction, arguing that his testimony from a previous parole revocation hearing should not have been admitted at trial.

Defendant was placed on parole in August, 1975, from Oregon State Correctional Institution, where he was serving a sentence resulting from a conviction for criminal activity in drugs. During the term of his parole he was indicted for two counts of criminal activity in drugs resulting from a sale of heroin to an undercover narcotics officer.

Defendant's parole officer had learned of the impending indictment, interviewed him and placed him in jail. Prior to trial a parole revocation hearing was held before a hearings officer of the parole board. At this hearing defendant was represented by counsel and in answer to questions put to him by his attorney, he admitted he had arranged the heroin sale and had used some of the heroin.

Defendant's statement at the parole hearing had been tape recorded and the state offered in its case in chief that part of the recording in which defendant admitted arranging the sale. Defendant agreed at trial the statement was voluntarily made at the parole hearing. At trial defendant testified to essentially the same facts he had recited at the parole hearing, posing entrapment as a defense.

Defendant urges three reasons the taped statement should not have been received as evidence. First, he argues he should have been granted 'use immunity' for his testimony at the parole hearing. Second, he argues that if he was not entitled to 'use immunity,' then he should have received 'Miranda' warning at the revocation hearing. Third, he contends that the evidence should have been offered as impeachment rather than as substantive evidence in the state's case in chief.

The 'use immunity' doctrine is based upon the Fifth Amendment privilege against compelled self-incrimination. ¹ A witness who is protected by this privilege may rightfully refuse to answer questions unless he is protected by a grant of immunity against use of his answers in a subsequent criminal prosecution in which he is a defendant. Absent the protection of immunity, if he is nevertheless compelled to answer, his answers cannot be used against him in the later prosecution. In the context of this case defendant claims he was compelled to testify in the parole hearing and since no immunity was extended to him the testimony he gave is constitutionally inadmissible at his criminal trial.

The defendant cites Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 1556, 47 L.Ed.2d 810, 820 (1976), as a basis for excluding his statements. In Baxter disciplinary proceedings were instituted against a penitentiary inmate for conduct which might also be the basis for state criminal prosecution. The prisoner was advised at the disciplinary hearing of his right to remain silent, but was also advised his silence would be used against him in the hearing. The Supreme Court summarized the 'use immunity' concept:

'* * * disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered 'whatever immunity is required to supplant the privilege' and may not be required 'to waive such immunity.' Lefkowitz v. Turley, supra, at 85, 94 S.Ct. 316, 38 L.Ed.2d 274; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Sanitation Men v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). * * *'

The cases cited by the Supreme Court have a common thread; a compulsion to testify at the initial proceeding in the face of a sanction imposed for refusal to testify. In Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), architects who refused to testify before the grand jury or to waive their rights against self-incrimination lost their eligibility to contract with the state; Garrity v. New Jersey, 385 U.S. 493, 84 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers under investigation for traffic ticket fixing were required to testify or be terminated; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), police officers appearing before a grand jury investigating departmental corruption were required to testify or be terminated; Sanitation Men v. Sanitation Comm'r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), sanitation workers who refused to testify before the sanitation commissioner regarding corruption were terminated.

Absent a compulsion to testify by imposition of some sanction upon exercise of the privilege to remain silent a witness has a free choice. If he then testifies pursuant to that free choice the testimony is admissible in a subsequent criminal proceedings against him.

In Baxter, however, the Supreme Court found there was no such compulsion despite the fact the prisoner's silence would raise an unfavorable inference. The court said:

'* * * (A) prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions 'must be based on substantial evidence manifested in the record of the disciplinary proceeding.' Morris v. Travisono, 310 F.Supp. 857, 873 (R.I.1970). It is thus undisputed that an inmate's silence in and of itself is insufficient to support an adverse decision by the disciplinary board. In this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportuntiy to contract with the State. * * *'

We find in the present case there is a similar lack of compulsion for the defendant's testimony at the parole revocation hearing.

Although not matching the rigors of a criminal trial a parole hearing is an adjudicative process designed to resolve factual issues and arrive at the truth. A parolee is entitled to constitutional due process before the conditional liberty of parole can be taken away. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Perry v. Williard, 247 Or. 145, 427 P.2d 1020 (1967); State v. Guisinger, 13 Or.App. 632, 511 P.2d 416 (1973); State v. Frye, 2 Or.App. 192, 465 P.2d 736 (1970); ORS 144.343. The burden is on the state to prove there has been a violation of the conditions of parole. Conversely, there is no evidentiary burden on defendant, nor is there automatic termination of parole if he declines to testify. He has a free choice in determining whether to give evidence or remain silent.

Defendant argues there is a practical compulsion to testify in order to completely explain his position and thus he is deprived of a free choice to testify or remain silent. This raises the issue of whether there is an unconstitutional tension between an effective due process right to be heard and the Fifth Amendment right to remain silent.

The circuit court of appeals in Flint v. Mullen, 499 F.2d 100 (1st Cir.) Cert. denied, 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974), resolved this conflict adverse to defendant's contention;

'* * * The choice whether or not to exercise one's Fifth Amendment right to remain silent must often be made in a setting where there is a concomitant due process right to be heard. Petitioner's decision was, in effect, the same choice he or any other defendant must make when brought to trial * * * Here * * * the government had to prove its case by extrinsic evidence and there is no indication that defendant was penalized for silence except to the degree that anyone who claims the privilege may be said to forego the possibility to persuading a court in his favor.' 499 F.2d at 103.

The United States Supreme Court faced a similar issue in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), involving a unitary trial in which the issues of guilt and sentencing were determined at the same time upon the same body of evidence. The defendant faced the decision of speaking out for a lenient sentence and risking...