IN RE: Homer Fletcher NEAL

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Court of Appeal, Third District, California.

IN RE: Homer Fletcher NEAL, on habeas corpus.

Cr. 7993.

Decided: November 17, 1975

William J. Owen, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen., by Edmund McMurray, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner, reimprisoned on charges of parole violation, seeks a writ of habeas corpus on the principal ground that the revocation of his parole did not conform to the requirements set forth in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. He charges specifically that at the prerevocation and revocation hearings, the Adult Authority's failure to produce requested adverse witnesses violated minimum standards of due process. He also claims that the evidence presented was insufficient to sustain the revocation.

The petition, return, and replication disclose the following facts: on October 21, 1949, petitioner was convicted in Los Angeles County of two counts of attempted murder and a third count of arson. He was sentenced to state prison for the term prescribed by law, the terms on the two counts of attempted murder to run consecutively and the term on the arson count to run concurrently with the attempted murder sentence. Thereafter, on September 5, 1950, petitioner entered a plea of guilty to a charge of escape and was sentenced to state prison for the term prescribed by law, the sentence to run consecutive to any sentence he was then serving. He was paroled from San Quentin Prison on March 6, 1972.

On February 27, 1974, petitioner was arrested in San Francisco and charged with violation of subdivision (a) of section 245 of the Penal Code (assault with a deadly weapon). On March 14, 1974, the criminal charges were dismissed when the complaining witness (petitioner's girl friend) failed to appear for the preliminary hearing. A parole hold was placed against him at that time.

On March 19, 1974, a parole violation report was filed by Parole Agent Cry. The report contained one charge of parole violation based upon the same facts as the felony assault charge.

The report alleged the following: petitioner's girl friend, Betty, received emergency hospital treatment on February 25, 1974, for “a stab wound of the left abdomen, and multiple bruises in the head and shoulder area, …” At the hospital, she reported to the police that she had been attacked at about 2:30 p. m. that day by “an unknown negro male American” and that petitioner1 had found her lying on her bed at approximately 4:30 p. m. and transported her to the hospital. On February 26, 1974, a police officer interviewed Betty in her San Francisco apartment in the presence of her son Michael and his friend David. Betty told the officer that her initial report about a Negro assailant was untrue, and that she had been beaten and stabbed by petitioner. She also advised the officer that she had lied out of fear, following a threat by petitioner against Michael's life, and a fear that he would retaliate against her as well. The officer obtained a corroborating statement from Michael concerning petitioner's threat upon his life.

The report also indicated that Agent Cry again interviewed Betty on March 15, 1974. Betty told him petitioner had recently become extremely jealous and had mistakenly believed Betty was sleeping with her son's friend David. Betty related that petitioner entered her apartment with his key at approximately 2 p. m. on February 25, and without saying a word, struck her on the head with his fists and stabbed her abdomen; he later drove her to the hospital. Betty explained that she and her son did not wish to testify against petitioner nor did they want to see him returned to prison.

Attached to the parole agent's report was a copy of a letter from Betty to petitioner dated March 7, 1974. The letter expressed regret that petitioner was “in so much trouble,” described her injuries in detail, and advised they were healing. It further indicated that Betty and her son “will do everything we can to keep you out of prison!” (Emphasis in original.)

A prerevocation hearing was held on April 2, 1974. Petitioner refused the services of an attorney, but did make advance request that Betty and the two police officers who had taken her initial exculpatory statement at the hospital be present as adverse witnesses, as well as John Koster, a friendly witness. Koster was the only witness to attend.

The prerevocation hearing officer considered the parole violation report of March 19, 1974, Betty's letter to petitioner dated March 7, 1974, and the testimony of Koster and petitioner. Petitioner testified that he wanted to marry Betty; that on February 23 and 24, 1974, he had left Betty's apartment after twice observing her engaging in sexual activity with her son's friend David; that petitioner had been with Koster at a muffler shop on February 25; after working one-half day, they left the muffler shop and went to Betty's apartment where he found her in a badly beaten condition and took her to the hospital. Petitioner insisted that Betty had not been stabbed in the abdomen.

Koster testified that he went with petitioner to Betty's apartment at about 4 p. m., saw Betty on her bed, and left immediately without noting any injuries.

The prerevocation hearing officer found probable cause for the charge of parole violation. His written statement indicated his reliance in part on the following facts: “The fact that Mrs. Martin advised a Police Officer and the Parole Agent that Mr. Neal [petitioner] was the cause of her injuries. Mr. Neal's statement that he observed Mrs. Martin on two occasions involved in situations he considered of a sexual nature and on each occasion showed considerable concern over the matter, and the fact that he was planning to marry Mrs. Martin. Mrs. Martin's letter to Mr. Neal of March 7, 1974 in itself is unusual and supports probable cause.”

A formal revocation hearing was conducted at San Quentin Prison on May 28, 1974. Petitioner was represented by appointed counsel, and submitted advance written requests that Parole Agent Cry be present as a friendly witness and that Betty and the prerevocation hearing officer be present as adverse witnesses. Two weeks prior to the revocation hearing, the Adult Authority sent Betty a letter specifying the date, time, and place of the hearing, and stating (1) that her attendance there had been requested and would be appreciated; (2) that the letter “is not a subpoena, as the Adult Authority … has no subpoena power;” and (3) that Morrissey gave parolees the right to confront and cross-examine adverse witnesses in revocation proceedings.

Neither Betty nor the prerevocation hearing officer attended the hearing. Parole Agent Cry was present and stated he had contacted Betty earlier in the day and that she had advised him she would not attend. Petitioner's attorney informed the panel that he also had seen Betty that morning, and she had refused his offer of a ride to the hearing.

Petitioner became upset when advised Betty was not in attendance. The hearing panel offered to continue the matter. After conferring with his attorney, petitioner informed the panel that he desired to proceed.

He entered a plea of not guilty to the single charge of parole violation. At the conclusion of the hearing, he was found guilty; his parole was revoked, and he was designated as a psychiatric referral case. His terms of imprisonment were refixed at 20 years and 20 years consecutively on the attempted murder counts, and 10 years consecutively on the escape conviction. The panel's written comments were these: “[Petitioner' attacked his girl friend, apparently in a jealous rage which is very similar to his commitment offense2 in which jealousy was the motivating factor. [¶][Petitioner] [h]as a criminal history of violence including Rape, Robbery & attempt murder.”3

The panel's written statement of the evidence relied upon to revoke parole included these matters: (1) the police report of the interview with Betty in her apartment on February 25, 1974, in which she accused an unidentified male Negro assailant; (2) the parole violation report of Agent Cry dated March 19, 1974; (3) Betty's letter to petitioner dated March 7, 1974; (4) five letters from petitioner to Betty, which she had given to a parole agent;4 (5) “No refuting evidence was submitted” except for petitioner's denial; and (6) three color photographs graphically descriptive of Betty's injuries to her head, face, and abdomen.

In Morrissey v. Brewer, supra, 408 U.S. at page 489, 92 S.Ct. at page 2604, the United States Supreme Court defined as follows the requirements of due process in a final hearing on revocation of parole: “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revoking parole.”

A technical and rigid interpretation of the foregoing rules might suggest that the failure of requested adverse witnesses to appear violates due process. We do not believe that Morrissey mandates such a result. The Supreme Court in Morrissey, at page 490, 92 S.Ct. at page 2604, indicated that it had “no thought to create an inflexible structure for parole revocation procedures.” “The test should be not whether there has been technical regularity but whether the parolee was held under procedures which afforded him the rights identified in Morrissey.” (In re Melendez (1974) 37 Cal.App.3d 967, 975, 112 Cal.Rptr. 755, 760.)

In Melendez, petitioner had requested the appearances of his wife and daughters as well as the parole agent. The parole agent was the only one to appear. The hearing officer concluded that petitioner's wife and daughter had just cause to fear for their safety if they appeared as witnesses. On appeal, the court found that the requirements of Morrissey relating to confrontation of witnesses by the parolee were not violated under such circumstances.

Even assuming a Morrissey violation, prejudice is not presumed, and in particular instances the violation may be deemed harmless.

Morrissey established that due process requires some “minimal inquiry” at or reasonably near the place of the alleged parole violation or arrest as promptly and as conveniently after arrest as possible, while the information is fresh. Such a prerevocation hearing was seen by the court in Morrissey as being “in the nature of a ‘preliminary hearing’ to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” Where a prerevocation hearing is not held or is improperly conducted, the parolee has the burden of showing prejudice. Upon the record presented, petitioner has not met that burden. (In re La Croix (1974) 12 Cal.3d 146, 154, 115 Cal.Rptr. 344, 524 P.2d 816.)

The failure of the San Francisco police officers who took the initial crime report to appear at the prerevocation hearing did not result in prejudice to petitioner. Their testimony would not have been adverse to his defense (the victim had described to them an unnamed male Negro as her assailant), and the complete substance of their anticipated testimony (which would, of course, impeach the victim) was before the prerevocation hearing officer in the body of Parole Agent Cry's report. The failure of Betty to appear at the prerevocation hearing was likewise not prejudicial. We cannot envision that her appearance would have caused a different result. The hearing officer had before him the parole officer's report containing her inculpatory statements to the police and to the parole officer. Betty's letter of March 7 was also before the hearing officer. That letter strongly implied that if she testified, petitioner would go to prison, meaning obviously that she would inculpate him. Petitioner has failed to in any way indicate prejudice resulting from the absence of the requested witness.

Failure of requested witnesses to appear at a prerevocation hearing, notwithstanding a petitioner's timely efforts to secure their presence, does not mean that he is automatically entitled to a favorable determination. Constitutional due process does not require that a parolee benefit from witnesses' absence, but only that unfairness not result therefrom. Accordingly, in the absence of a showing that there was not a good faith effort to secure the presence of the witnesses or that the presence of such witnesses would have resulted in a different resolution of the issues, a parolee whose parole has been revoked after a prerevocation hearing is not entitled to have that hearing set aside. (In re La Croix, supra, 12 Cal.3d at p. 154, 115 Cal.Rptr. 344, 524 P.2d 816.) The mandate of Morrissey for a reasonable hearing to determine reasonable grounds to hold the petitioner for a formal revocation hearing was satisfied. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct 824, 17 L. Ed.2d 705.)

Chief Justice Burger, speaking for the court in Morrissey, clearly indicated the court did not intend to create an inflexible structure for parole revocation proceedings. Although establishing as a minimum requirement of due process that petitioner has the right to be heard in person, to present witnesses, and to confront and cross-examine adverse witnesses, a broad exception was clearly enunciated. If appearance at the revocation hearing could subject the informant or complaining witness to risk of harm, that person need not be subjected to confrontation and cross-examination.

Although the Adult Authority here failed to make a specific finding that Betty would be subjected to unnecessary risk of personal harm if she appeared, clear, convincing, and unrebutted evidence is before us upon which we find good cause for her failure voluntarily to appear. Our finding of good cause will suffice without referral to the revocation hearing officer for further proceedings. (In re Tucker (1971) 5 Cal.3d 171, 176, 95 Cal.Rptr. 761, 486 P.2d 657; In re Atchley (1957) 48 Cal.2d 408, 411, 310 P.2d 15; In re Riddle (1962) 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304.)

The correspondence received by Betty from petitioner was presented to the revocation hearing officer; it alone is sufficient to support a determination that her failure to appear was both excusable and nonprejudicial to petitioner. Petitioner's letters to Betty (fn. 4, ante pp. 539-540) in effect presented her with three alternatives, none of which is acceptable. First, she could testify and perjure herself; second, she could testify truthfully but at the very real risk (see fn. 2, ante p. 539) of suffering physical harm at the hands of petitioner; or third, she could stay away, being under no legal compulsion to attend, as was well known to petitioner.5

The hearing officer offered petitioner and his attorney a continuance for them to seek other methods of securing Betty's attendance.6 This offer was rejected. We infer from petitioner's rejection of a continuance, from his correspondence to Betty, and from his knowledge that Betty was under no legal compulsion to testify that petitioner did not truly desire her attendance at the revocation hearing, understanding full well that her truthful testimony would inculpate him. His letters (fn. 4, ante pp. 539-540) may be construed, and we do construe them as a deliberate attempt to prevent her attendance. Knowing that he could not prevail on the merits, petitioner has contrived a procedural cul-de-sac in a brazen, transparent effort to suborn the very system to which he now looks for vindication.

Under such circumstances, petitioner may not now benefit from his threats of harm to Betty by asserting a denial of procedural due process at the revocation hearing by reason of her failure to appear as a witness, a consequence deliberately engineered by petitioner himself.

The revocation hearing afforded petitioner fully complied with the procedures and standards set forth in Morrissey. A review of the evidence presented at the prerevocation and revocation hearings leads us to the conclusion that the factual issue, even had Betty testified, would necessarily have been determined against petitioner, as would the fact that his conduct constituted a violation of his parole agreement. In reaching our conclusion, we have considered and rejected petitioner's additional contention that the evidence was insufficient at both prerevocation and revocation hearings to sustain the conclusions of the Adult Authority.

The order to show cause is discharged, and the petition for the writ is denied.


1.  Petitioner is Caucasian.

2.  The Statement of Court on Prison Sentence dated October 24, 1949, by the original sentencing superior court judge reads in part as follows: “Before committing this crime [attempted murder] and while he was in the county jail on a misdemeanor charge, this man wrote several letters to the victim telling them that he would get even with them upon his release. About 4 a. m. of June 4 he threw gasoline through the bedroom window and then set fire to the house. The victims, Mr. and Mrs. Raymond, were very severely burned. Mrs. Raymond will be a helpless cripple all the rest of her life; she will never be able to wear either shoes or stockings again and she will be able to walk only very short distances․“This is the most fiendish, most brutal and most vicious crime that has yet come to my attention, … Not only is he vicious … he [petitioner] is likewise vindictive and that was the reason I ordered the two sentences to run consecutively․”

3.  It appears from the return that, when petitioner was convicted of attempted murder in 1949, he admitted a 1938 burglary conviction. The district attorney's 1949 statement under Penal Code section 1203.01 also alleged that in 1936, petitioner was convicted of grand theft auto; that in 1939, he was “found guilty but not guilty by reason of insanity” on a robbery (purse-snatching) charge, and that he had “a long record of arrests and convictions involving petty thefts, assaults, morals offenses involving children, and other crimes.” A 1971 evaluation by a prison counselor alleged that at age 19, petitioner was committed to the Youth Authority for statutory rape.

4.  Typical of the five letters containing both direct and veiled threats is the following undated letter from petitioner delivered to Betty prior to the revocation hearing:“Dear Betty:“All of my letters are sealed so nobody gets a chance to read them but you. That is the law now.“As long as you did as I told you, everything worked out fine: like not coming to court against me. If you want to help me, I can be out in three weeks. There wont be anybody around to ask you any questions or anything. Just write a letter for me.“You know that I know law well enough to get myself out because I can beat this charge in court, but it will take 6 months. If you don't help me, you will be in more trouble than you can legally handle.“If you write a letter to the Adult Authority saying that you lied to the police about me, because you were drinking, they cant do anything to you because they have not suffered any injury because of your statement. I am the only person who can file any charges against you because I am the only person who has suffered injury from what you told the police. And you know that I dont want to do anything to you. But I sure as hell do want out—with your help or, without it I will get out because Parole Agent, Mr. Weisenberger (you talked with him at your house) told me that about all that will be done to me is that I will get 2 or 3 more years of parole.“…“Tell O'Brien that you were drinking when you lied to the police and you were afraid to change your statement later because you did not want to go to jail. Follow my advice and everything will be ok.“Some of my very good friends have been here to see me and they dont like what you have done to me. I surely hope they dont cause you any trouble. I also hope you are sober enough to help straighten out this mess you've made. Don't waste any time.” (Emphasis in original.)A letter dated April 11, 1974, from petitioner to Betty in part contained the following:“The police report accuses me of stabbing ELIZABETH MARTIN ‘in the left abdomin’. You have stated several times that you would do all you can to help; now is your chance to help yourself as well as me because I don't know any ‘Elizabeth’ who was ‘stabbed in the left abdomin’. Do you? Be at my hearing or go to jail. You know I keep my promises.“…“[If I go back to prison for 6 months, I will be free; also, a raving maniac. So, if you expect any consideration from me, you had better do what you know is the right thing for me NOW! You slimey whore!]“…“Talk this over with Michael and I'm sure he will advise you to do what I tell you because you both know I'm not playing games anymore. Cooperate with me and I will shake hands with you and Mike when I get out; otherwise, may the best man win.” (Emphasis in original.)

5.  Advice on the right to a revocation hearing addressed to petitioner and signed by petitioner on April 19, 1974, provides in part:“I understand the information which has been furnished to me concerning my parole revocation hearing.“I would like to invite the following people to attend the revocation hearing, if they can. I understand that their attendance will be voluntary and not at State expense. (You may leave this section blank if you do not wish to invite witnesses.)”

6.  The Declaration of Charles Brown, Hearing Officer, provides in part:“That as an Adult Authority member in May 1974, I was a hearing officer at petitioner Homer Fletcher Neal's parole revocation hearing.“That Homer Neal had requested the presence of the victim, Betty J. Martin, at his parole revocation hearing. That Betty J. Martin did not appear at the hearing as requested.“That when Homer Neal became upset because Betty Martin was not present I told Homer Neal and his counsel, William Pinckus, that if they felt that Betty Martin was such an important witness to the case that Neal would be unable to get a fair hearing without her presence, I would grant a continuance in order that greater effort might be made to secure the presence of said Betty Martin. That I gave Homer Neal and William Pinckus a chance to confer over whether they wanted such a continuance. That after the two had conferred they told me that they did not desire a continuance and that they wished to go ahead with the hearing then and there without Betty Martin's presence.”

EVANS, Associate Justice:

PUGLIA, P. J., and PARAS, J., concur.