Witt v. Moran

• Decision Date: 23 March 1990
• Docket Number: Nos. 89-296-M,s. 89-296-M
• Citation: 572 A.2d 261
• Parties: Susan WITT v. John MORAN, Director Department of Corrections. Affadella JORDAN v. John MORAN, Director Department of Corrections. P., 89-303-M.P.
• Court: Rhode Island Supreme Court

Page 261

572 A.2d 261

Susan WITT v. John MORAN, Director Department of Corrections.

Affadella JORDAN v. John MORAN, Director Department of Corrections.

Nos. 89-296-M.P., 89-303-M.P.

Supreme Court of Rhode Island.

March 23, 1990.

Edward J. Corcoran, II, for Susan Witt.

Richard Casparian, Public Defender, Paula Rosin, Barbara Hurst, Asst. Public Defenders, for Affadella Jordan.

James E. O'Neill, Atty. Gen., Caroline Cole Cornwell, Sp. Asst. Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., for defendant.

OPINION

MURRAY, Justice.

This consolidated case is before the court on petitions for writs of certiorari filed by the defendants, Susan Witt and Affadella Jordan. At their bail hearings in the Second Division District Court on May 24, 1989, the defendants were ordered held without bail pursuant to G.L.1956 (1981 Reenactment) § 12-13-5.1, as amended by P.L.1988, ch. 652, § 1. They now appeal claiming that the bail statute is unconstitutional. We find that although § 12-13-5.1 is constitutional, it was not constitutionally applied in both defendants' bail hearings. We therefore take this opportunity to interpret § 12-13-5.1 and to give guidance to trial justices faced with applying the statute in the future.

The defendant Susan Witt (Witt) was charged with having delivered cocaine to an undercover Newport police officer. At Witt's bail hearing on May 24, 1989, the state presented Detective Terry Hazel (Hazel) of the Middletown police department as a witness. He testified that on April 5, 1989 at 6 p.m. he met with two informants at the Middletown police department. At 8:30 p.m. Hazel drove with the informants to 84 Mahan Street where they encountered Witt. After Hazel and Witt exchanged a few words relating to the sale of a small amount of cocaine, Witt handed the detective a small bag of a white powdery substance that later tested positive for cocaine.

Witt presented testimony establishing that she is a twenty-three-year-old single mother ¹ of two small children, ages six years and one year. She is a life-long resident of Newport and all her immediate family lives on Aquidneck Island. She has no previous criminal record.

At the close of the testimony the trial justice decided that the proof of guilt is evident that a delivery did take place. Moreover, Witt had not submitted enough evidence to overcome the statutory presumption of dangerousness. The court therefore would not exercise its discretion and grant bail. The trial justice did, however, upon defense counsel's objection admit that the presumption of dangerousness can be rebutted. He stated that the criteria required for rebutting the presumption are subject to judicial discretion and are "based upon ties to community, to one's church if they have one, and as to social activities, as to family ties and all other criteria that we have historically used when we make a determination as to setting of bail."

The defendant Affadella Jordan (Jordan) was also charged with delivering cocaine. She reportedly participated twice in the sale of cocaine to Detective Hazel. At Jordan's bail hearing, Hazel testified that on February 18, 1989, at approximately 9:40 p.m. he met with Jordan and a man at 61 Mahan Street, Newport. Hazel gave the man $100 and requested five foils of cocaine. The detective then followed the two to 84 Mahan Street. The defendant and her companion went inside for a few moments. Hazel then testified that Jordan gave the man some foils to give to Hazel. She then handed Hazel $20 explaining that she did not have enough cocaine to meet Hazel's request. The substance handed to Hazel tested positive for cocaine.

Hazel also testified that he encountered Jordan again on February 23, 1989. Hazel testified that he went to 61 Mahan Street for the purpose of purchasing cocaine. He testified that Jordan and a man named John there sold him $100 worth of cocaine. The substance again tested positive for cocaine.

At her bail hearing Jordan presented witnesses who testified that she is a resident of Newport, Rhode Island, where she has lived for most of her life. The defendant's cousin testified that Jordan is a thirty-four-year-old mother of two children, aged fourteen and two. Evidence was also submitted that a job was available to Jordan if she were to be released on bail. Moreover, she had no prior criminal record.

The trial justice then decided that the state had established that the proof of guilt was evident or the presumption great that Jordan would be found guilty of delivering cocaine. He explained that because defendant Jordan had not rebutted the presumption of dangerousness, he would therefore not exercise his discretion in granting bail. In explaining what type of evidence should be submitted to rebut the presumption, the court stated that the presumption "would have to be rebutted with some fairly good evidence of law abidingness, lack of flight, ties to the community, employment verification or some other kinds of ties to the community." Although the trial justice was impressed with the fact that Jordan's two children needed to be cared for and she was therefore less likely to flee the jurisdiction, he concluded that the evidence submitted was insufficient to rebut the presumption created by § 12-13-5.1.

As a preliminary matter we recognize that in deciding the constitutionality of § 12-13-5.1, we shall not change the fate of the two defendants. ² On September 15, 1989, the charges against defendant Witt were amended, and she pled nolo contendere to a charge of possession of cocaine. She was sentenced to three years at the Adult Correctional Institutions (ACI), four months to serve, given credit for time served and was released. The Defendant Jordan also pled nolo contendere to two counts of delivering and two counts of conspiracy to deliver cocaine on September 28 1989. She was sentenced to ten years at the ACI with eighteen months to serve. As both defendants have been sentenced, a new bail hearing cannot now be granted.

This court has on occasion granted writs of certiorari to review "questions of extreme public importance, which are capable of repetition but which evade review." E.g., Morris v. D'Amario, 416 A.2d 137, 139 (R.I.1980). In Morris a juvenile filed a writ of certiorari requesting that we review the legality of his detention at the Training School. Morris was released after his petition was filed but before this court had the opportunity to review those issues raised. The court nonetheless reviewed the merits of Morris' claim because they were of extreme public importance and were capable of repetition but evading review. See also Mello v. Superior Court, 117 R.I. 578, 581, 370 A.2d 1262, 1263 (1977) (this court reviewed the constitutionality of bail revocation as conditioned on good behavior even though the defendant had already been released). Our approach to review these types of moot questions is consistent with the approach of the United States Supreme Court. See, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973) (citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)).

We believe that this is one of those cases wherein the issue is capable of repetition yet evading review. Moreover the constitutionality of a statute which is applied daily to defendants facing drug charges is a matter of extreme public importance. If we were to decide not to review this case because it is moot and it no longer affects the lives of the defendants raising the issue, we would never be able to review it at all. We are mindful that before reaching the court via a writ of certiorari, most defendants will have already been sentenced.

In reviewing the constitutionality of § 12-13-5.1, we carefully consider the Constitution of the State of Rhode Island, article I, section 9. This section was amended in November 8, 1988, to provide that:

"[a]ll persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, * * * or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great."

This section provides that no absolute right to bail exists in Rhode Island for defendants charged with the delivery of a controlled substance when the proof of guilt is evident or the presumption great. Its enactment represents the public's response to the present drug crisis in society. See Committee Report as printed in Journal of the 1986 Constitutional Convention at 42-43 (June 11, 1986).

Similarly § 12-13-5.1 is the legislative response to this state's drug problem. In light of the amended constitution and the new statute, trial justices are charged with a special duty in setting bail. The statute requires that the trial justice consider that a high probability exists that one who is shown to be guilty of a drug-related offense is also dangerous. McCormick on Evidence § 343 at 969 (3 ed. Cleary 1984).

Although the defendants do not have a constitutional right to bail, they do have a constitutional right to have their bail determined in accordance with the due process clause. In Mello, this court addressed the constitutionality of revoking a defendant's bail for failure to abide by a condition of release. This court took the opportunity to express clearly the now well-known principle that bail-revocation hearings must abide by the procedural due process clause of the Fourteenth Amendment.

"There can be little doubt that one's interest in remaining free on bail falls within the 'liberty or property' language of the [F]ourteenth [A]mendment. Nor could one argue that the deprivation of liberty which follows bail revocation does not condemn one 'to suffer grievous los...