Mason v. State

631 P.2d 1051, 1981 Wyo. LEXIS 363

• Court: Wyoming Supreme Court
• Decided: July 23, 1981
• Docket: 5401
• Status: Published

Opinions

ROSE, Chief Justice.

The issue in this case is whether the defendant in a probation-revocation hearing has the right to confront and cross-examine the witnesses against him. Here, the crucial evidence against the probationer was presented in the form of hearsay testimony. The State made no attempt either to subpoena the witnesses or to make any valid exeuse for their absence.

At the revocation hearing, the district court found that appellant Tracy Michael Mason violated the terms of his probation by entering the Senior Citizens Center in Casper and illegally removing a stereo system. While this finding would constitute a proper basis for revocation of appellant's probation, we will reverse and remand this case to the district court for further consideration on the grounds that appellant was denied his right to confront and cross-examine the witnesses against him, as such right is guaranteed by the Fourteenth Amendment to the United States Constitution.

FACTS

On July 28, 1980, Tracy Michael Mason was sentenced to a term of not less than three years and not more than four years in the Wyoming State Penitentiary. This sentence was the result of two separate criminal prosecutions. As part of a plea agreement, the defendant was placed on probation for two years. The conditions of the defendant's probation provided that (1) he would be subject to the supervision of the Wyoming State Department of Probation and Parole; and (2) he would obey all local, state and federal laws during the probation period. Violation of either of these conditions would be grounds for revocation of his probation. The defendant had been on probation for little more than one week when the Natrona County Attorney filed a petition for revocation alleging that a complaint and warrant had been issued on July 25, 1980, charging the defendant with the burglary of the Senior Citizens Center on July 22, 1980. At the probation-revocation hearing held on August 22, 1980, the State called only two witnesses: the defendant's probation officer and a Casper police officer, James Cooper. While the probation officer's testimony is not important to this appeal, the testimony of Officer Cooper lies at the heart of appellant's complaint.

Officer Cooper testified to the contents of a statement taken by him from Bruce Be-xell, a witness who allegedly saw someone place a stereo under some bushes and later take the stereo to the press box at the Natrona County High School stadium. Cooper also testified to information acquired during a discussion with the arresting officer involved in the investigation. Both of these witnesses had testified at the preliminary hearing on the charges of burglary of the Senior Citizens Center, but neither witness was present at the probation-revocation hearing. The State neither offered an explanation for the failure to produce the witnesses, nor offered a transcript of the testimony from the preliminary hearing. Rather, Officer Cooper's testimony was based exclusively upon his recollection of his conversations with the witness, Mr. Bexell, and the arresting officer, together with his recollection of the proceedings at the preliminary hearing.

Mr. Bexell's description, as related by Officer Cooper, stated only that the burglar was approximately six feet tall, 18 to 20 years old, had long hair, and work dark clothes. The officer also testified that Mr. Bexell had only identified Mr. Mason from a photographic lineup, and had never identified him in person.

Officer Cooper then recalled a conversation with Officer Hazen, the arresting officer, who reportedly saw the defendant closing one of the windows at the press box at the Natrona County High School stadium on the night of the burglary. The stolen stereo was later recovered from the press box.

Defense counsel attempted to raise an issue of misidentification by the witness, Mr. Bexell, and to point out conflicts in the descriptions given by Mr. Bexell and the arresting officer. He was unable to do so because Cooper could not recall the exact testimony of the witnesses. Defendant's counsel made repeated objections to the testimony of Officer Cooper on the grounds that it was unreliable hearsay evidence, and that the defendant was being denied his right to confront the witnesses against him.

On the basis of Officer Cooper's hearsay testimony, the district court revoked the defendant's probation and reinstated the original sentence. The defendant has appealed that order on the grounds that the determination was made solely on the basis of the hearsay testimony thus denying him the right to due process and the right to confront and cross-examine witnesses against him.

THE LAW

The law governing probation revocation is controlled by the Fourteenth Amendment right to due process under the law, as well as by Wyoming statute and case law. In Gagnon v. Scarpelii, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court held that the Fourteenth Amendment requires that a probationer be given a hearing before his probation may be revoked. Gagnon adopted the reasoning of an earlier case, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which extended the right of a prerevocation hearing to parolees. In both the parole and probation settings, the Court held that parole and probation revocation were not criminal prosecutions and, therefore, did not give rise to the full panoply of rights available under the Sixth Amendment. Nevertheless, parolee and probation-revocation proceedings may result in a loss of liberty, thereby triggering the fundamental protections of the due-process clause of the Fourteenth Amendment. Gagnon, supra, and Morrissey, supra. The loss of liberty suffered by the probationer or parolee is not the loss of "absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observation of special * * * restrictions." Morrissey, supra, 408 U.S. at 480, 92 S.Ct. at 2600.

Due process requires that the defendant in revocation cases be given a two-part hearing to determine if (1) there are verified facts proving a violation of the release agreement; and (2) whether in light of a proven violation the probation should be revoked. This hearing must be preceded by a written notice of the claimed violations. Other protections that attach to this hearing include the guarantee of disclosure of the evidence against the defendant, the right to call witnesses and present documentary evidence and the right to confront and cross-examine adverse witnesses. Morrissey, supra, 408 U.S. at 489, 92 S.Ct. at 2604.

The method provided for by law under § 7-13-409, W.9.1977, allows for the county attorney (as in Knobel v. State, Wyo., 576 P.2d 941 (1978)) or the administrative officer (as in Weisser v. State, Wyo., 600 P.2d 1320 (1979)) to file a petition with the district court, requesting probation revocation. In the latter instance, the district court must hold a hearing-as it did here-to determine whether the conditions of the probation agreement had been violated and whether probation should be revoked. We upheld the validity of this procedure in Weisser v. State, supra, as well as in Knobel v. State, supra.

The appellee contends that Officer Cooper's hearsay testimony should be allowed since Rule 38(f), W.R.Cr.P., specifically suspends the application of the hearsay rules at probation- or parole-revocation hearings. This argument misses the point. The purpose for allowing hearsay in these hearings is to aid the court in determining whether probation or parole should be revoked after the determination has been made that the agreement has been violated.¹ The determination of whether the defendant violated his release agreement must be based on verified facts. Morrissey v. Brewer, supra, 408 U.S. at 484, 92 S.Ct. at 2601. While hearsay is not categorically barred from revocation hearings, the hearsay admitted in this case was improper.

It is impossible for the defendant to test the accuracy and truth of the State's witnesses if they are not at the hearing to give their testimony. It is clear from the record before us that defense counsel was frustrated in his attempts to demonstrate an alternative theory as to who committed the burglary at the Senior Citizens Center because he was unable to effectively cross-examine the State's witnesses. Officer Cooper's incomplete memory made the State's case unassailable. Both the defendant and the social system have a stake in making sure the factual determination in a revocation hearing is not an arbitrary one but is based on facts which pass the Morrissey, truth-seeking test.of cross-examination, Morrissey v. Brewer, supra, 408 U.S. at 484, 92 S.Ct. at 2601. In this case the only evidence presented was in the form of hearsay which the defense was unable to test and verify. This was a clear violation of the appellant's right to due process. Anaya v. State, Nev., 606 P.2d 156 (1980). The State must make a good-faith attempt to produce the witnesses at a probation- or parole-revocation hearing or else show cause why they cannot appear. If for some valid reason a witness is unavailable, whether or not the information may be introduced through hearsay will be determined by the use of a balancing test. This test will weigh the defendant's interest in confronting and cross-examining the witnesses against him with the practical difficulties of producing the witness. Anaya v. State, supra.

If the evidence is to be introduced to establish the substantive violation of a condition of probation or parole, the defendant's interest in questioning the actual source of the information is far stronger than if the evidence relates only to the defendant's general character while on probation. Id. at 158. The form of the hearsay testimony is also important in striking the due-process balance. While not every use of hearsay evidence violates the due-process clause, the court or probation board must carefully weigh the evidence to be sure it bears strong indicia of reliability. If in the present case the State had been unable to produce the witnesses at the revocation hearing, testimony might have been introduced from the preliminary hearing on the burglary, provided, of course, this testimony had been tested by cross-examination or by questioning that was the equivalent of cross-examination. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The record does not show whether the preliminary hearing included such questioning. In any event, the testimony from the preliminary hearing was not offered at the revocation hearing. Needless to say, Officer Cooper's recollections of the testimony at the preliminary hearing are not an acceptable substitute for a transcript of the testimony.

PLAIN ERROR

Appellee asks us to reject this appeal on the grounds that the due-process violation was not properly objected to during the hearing. As appellee reads the record, the defense counsel objected to the evidence only on the grounds that it was hearsay and that it violated the confrontation clause of the Sixth Amendment. Following this reasoning, the objections were properly overruled, on the first point, since Rule 88(f), W.R.Cr.P., makes the hearsay rules inapplicable during probaticn-revocation hearings and, on the second point, because the Sixth Amendment only applies to criminal prosecutions and probation-revocation hearings have been held not to be criminal prosecutions. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

Appellee's reasoning does not persuade us for two reasons. First, defense counsel repeatedly objected to Officer Cooper's testimony on the grounds that it denied the defendant's right to confront and cross-examine the witnesses. These are precisely the rights that we find were affected by the introduction of the hearsay testimony. The court did not ask for argument on the question of which amendment to the United States Constitution provided the basis for the claimed right to confront Defense counsel's objection the witness. was sufficient to alert the court to the problem before it and to the proper legal remedy.

Even if we were to hold that the objections were improper and insufficient to raise the issue before the court, we would reach the question of the violation of the defendant's due-process rights under the plain-error doctrine. "Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Rule 7.05, W.R. AP.; Rule 49, W.R.Cr.P.

This court's opinion in Daellenbach v. State, Wyo., 562 P.2d 679 (1977), sets out a three-part test to determine when the plain-error doctrine should apply. For error to qualify as plain error, there must first be a clear record of what happened at the hearing. Second, there must be a clear and unequivocable rule of law shown to exist. Third, the facts of the case must clearly and obviously transgress the rule of law. See also Hampton v. State, Wyo., 558 P.2d 504 (1977). Once this three-part test is satisfied, it still must be shown that a substantial right of the accused has been adversely affected. These criteria apply even when a constitutional violation is alleged, as in the present case.

We think each of the three criteria, as well as the violation of a substantial right, have been met in this case. The rule of law was firmly established several years ago in Morrissey and Gagnon. The violation of this rule is obvious and is clearly shown in the record of the proceedings. Finally, there is no doubt that the due-process right to confront and cross-examine witnesses is a substantial right that has been denied in this case. For these reasons, the plain-error doctrine allows us to consider this constitutional deprivation even if not raised in the court below.

The order of the district court is reversed and this case is remanded for further proceedings consistent with this opinion.

1 . When the court or probation board turns its attention to the second stage of the revocation hearing, hearsay evidence will be useful in determining whether or not to revoke probation in light of the prior finding of a probation violation.