Armstrong v. State

312 So. 2d 620, 294 Ala. 100, 1975 Ala. LEXIS 1152

• Court: Supreme Court of Alabama
• Decided: March 13, 1975
• Docket: SC 1046
• Status: Published

Opinions

PER CURIAM.

The following portion of this opinion was prepared for the court by Mr. Justice Faulkner, to whom this case was originally assigned.

I.

Petitioner appealed to the Court of Criminal Appeals from an order of the Circuit Court revoking his probation. The Court of Criminal Appeals affirmed, 54 Ala.App. -, 312 So.2d 607. We granted certiorari.

In February, 1971, Armstrong was found guilty of various crimes against property. He was placed on seven years probation by a Circuit Judge of Tuscaloosa County. In July, 1973, he was indicted in Tuscaloosa County for two cases of robbery, conspiracy to rob, and kidnaping. On November 15, 1973, Armstrong’s probation officer issued an order for his arrest for violation of his probation. Armstrong was arrested four days later, on November 19, and a probation revocation hearing was held. On that date just before the hearing Armstrong was given a copy of the report of the probation officer. Armstrong says this was the only written notice he was given concerning the alleged grounds for revocation.

Before any evidence was presented at the hearing, Armstrong moved that he be granted a two stage hearing. By this he meant a preliminary hearing where he would be apprised of the allegations in the probation officer’s report, and a later hearing so that he could meet those charges, and at such hearing, a final determination could be made as to his continued status as a probationer. The court overruled the motion.

The State introduced evidence consisting of the testimony of two principals to the robbery in Tuscaloosa County, committed on June 2, 1972. These witnesses testified that Armstrong was not a participant in the robbery, but he did take a major part in the planning and execution of the crime. Testimony of two probation officers, and the victim of the robbery was introduced by the State. The victim testified that Armstrong was not one of the persons who robbed him. The probation report was introduced. At the conclusion of the hearing Armstrong’s probation was revoked.

The principal issue in this case is whether the hearing conducted in the Circuit Court of Tuscaloosa County was in compliance with the guidelines set out by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Morrissey held that even though the revocation of parole was not a part of the criminal prosecution, the loss of liberty entailed was a serious deprivation and required the parolee be accorded due process. Gagnon applied the principles outlined in Morrissey to revocation of probation, holding that a probationer was entitled to a preliminary and a final revocátion hearing under the conditions specified in Morrissey. Those conditions included the following:

1’. Written notice of the claimed violation of parole.

2. Disclosure to parolee of evidence against him.

3. Opportunity to be heard in person and to present witnesses and documentary evidence.

4. The right to confront and cross-examine adverse witnesses.

5. A neutral and detached hearing body, such as a parole board.

6. A written statement by the judge as to evidence relied on and reasons for revoking parole.

Gagnon expanded these to include right of counsel under certain conditions.

The court said that it was not trying to write a code of procedure for each state, but felt that the minimum requirements of due process included the above.

In this case, the Court of Criminal Appeals seemingly reasoned that minimal due process had been met because of an affidavit filed by the trial judge. In the affidavit, the trial judge outlined a telephone conversation with Armstrong’s attorney on November 15, 1973. No explanation was given in the affidavit why there was such a lapse between the time of the indictment and the efforts of the District Attorney to have Armstrong’s probation revoked. The affiant merely stated he refused to take any action at the request of the District Attorney, and stated to the D. A. he would “await the probation officer.” It was not until after the trial judge was requested by the probation officer, that the order of delinquency was entered. No hearing was held prior to the entry of that order. We disagree with the Court of Criminal Appeals in its conclusion that minimal due process was accorded Armstrong before revoking his probation.

We set forth the requirements and guidelines which must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before his probation can be revoked.

1. Written notice to the probationer of the claimed violations of probation.

2. Disclosure to the probationer of evidence against him or her.

3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.

4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).

5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.

6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)

7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.

8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.¹

9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).

For the reason that the probationer has not been accorded minimal due process, the Court of Criminal Appeals is reversed. The case is due to be remanded for a hearing in conformance with the due process requirements outlined in this part of the opinion.

Finally, should the probation be revoked upon another hearing, then the time already spent in the penitentiary must be fully credited against the probationer’s sentence.

The following portion of this opinion was prepared for, and at the request of, the Court by Bloodworth, Justice.

II.

The second issue raised by petitioner is whether a person’s probation may be revoked on the uncorroborated testimony of accomplices. The Court of Criminal Appeals concluded that, although a felony conviction cannot be had thereon [Tit. 15, § 307], a person’s probation may be revoked upon such testimony. We agree and affirm as to this issue.

It is contended that evidence sufficient to revoke probation must measure up to the same standard required to bind a person over to the grand jury, citing State v. Smith, 138 Ala. 111, 35 So. 42 (1902).

In the first place, we do not concede that the Smith case is applicable. It holds that our statute [Tit. 15, § 307] applies to preliminary hearings as to “probable cause” as well as to grand jury proceedings. No authority is cited for this holding except the statute, and, of course, it applies to trials where a conviction may be had. Such case is clearly inefficacious to produce a result different from that which we espouse.

This Court has held that this “section [Tit. 15, § 307] merely creates a statutory rule, and not a constitutional right.” Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967).

Gagnon, itself, specifically holds that “formal procedures and rules of evidence are not employed” in probation revocation hearings. Justice Faulkner in writing this Court’s opinion as to issue I specifically notes that, bn revocation hearings, the standard of proof is not reasonable doubt or preponderance of the evidence but reasonable satisfaction from the evidence.

As the Court of Criminal Appeals notes in its opinion:

“In Martin v. State, 46 Ala.App. 310, 241 So.2d 339, Judge Cates, quoting from State v. Duncan, 270 N.C. 241, 154 S.E. 2d 53, stated:

“ ‘ “ . . . A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt . . . ” ’ ” [Emphasis supplied.] Armstrong v. State (1974), 55 Ala.App. 37, 312 So.2d 607.

The United States Supreme Court, in several very recent decisions, has written that there is a great difference between the rules governing probable cause hearings for arrest and search, grand jury proceedings, and those governing the trial itself.

“ * * * it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), it was objected that hearsay had been used at the hearing on a challenge to the admissibility of evidence seized when a car was searched and that other evidence used at the hearing was held inadmissible at the trial itself. The Court sustained the trial court’s rulings. It distinguished between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself — ‘There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.’ * * * ” (Footnotes omitted.) United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The United States Supreme Court in Matlock continued by writing:

“Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements of identified and unidentified persons. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). An arrest and search without a warrant were involved in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). At the initial suppression hearing, the police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Government would have been obligated to produce the informer and to put him on the stand had it wanted to use his testimony at defendant’s trial, but we sustained the use of his out-of-court statements at the suppression hearing, as well as the Government’s refusal to identify him. * * *

“There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel. * * * ” (Footnotes omitted.)

In United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the court wrote:

“Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. * * * ”

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“In Branzburg [Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626], the Court had occasion to reaffirm the importance of the grand jury’s role:

“ ‘[T]he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen . . . .’ 408 U.S., at 700 [92 S.Ct. at 2666] 33 L.Ed.2d 626.”

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“ ‘ * * * Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, supra, 350 U.S., at 362 [76 S.Ct. at 408] [(100 L.Ed. 397)]. It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made . . . .’ Id., at 701 -702, [92 S.Ct. at 2666] 33 L.E.2d 626.

“The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra [350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397]; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination, Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).”

Moreover, our Court of Criminal Appeals has consistently held that an indictment may rest on hearsay. Pitts v. State, 53 Ala.App. 373, 300 So.2d 416 (1974), cert. den. 293 Ala. 770, 300 So.2d 420; State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 (1974), cert. denied in opinion 292 Ala. 506, 296 So.2d 784. See also Dixon v. State, 42 Ala.App. 341, 164 So.2d 509 (1964); Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963).

Conclusions

In conclusion, we hold as to Part I that petitioner Armstrong was not awarded “minimal due process” under the United States Supreme Court decisions in Gagnon v. Scarpelli and Morrissey v. Brewer and that the decision and judgment of the Court of Criminal Appeals is reversed as to this issue (Part I) and the cause remanded for a hearing in conformity with the due process requirements which we have heretofore set forth.

In conclusion, we hold as to Part II that, in probation revocation proceedings, the testimony of accomplices need not be corroborated [as required by Tit. 15, § 307 for convictions] in order to warrant a revocation of probation by a trial judge and the decision and judgment of the Court of Criminal Appeals is affirmed as to this issue (Part II).

Affirmed, in part, reversed, in part, and remanded.

HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES, SHORES and EMBRY, JJ., concur in Part I. MADDOX, J., concurs specially in Part I. HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and SHORES, JJ., concur in Part II. FAULKNER, JONES and EMBRY, JJ., dissent. ALMON, J., recuses himself.

1 . The minimum constitutional requirements of due process for appointment of counsel (an issue not involved in this case) may be found in Gagnon, supra, at 411 U.S. p. 790, 93 S.Ct. p. 1763:

“Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.

“It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in eases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every ease in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.”