State v. Abd-Rahmaan

111 P.3d 1157
Washington Supreme Court·Decided May 12, 2005·No. 75398-9·Published·Cited by 42 cases

Opinion

111 P.3d 1157 (2005)
154 Wash.2d 280

STATE of Washington, Respondent,
v.
Khatib M. ABD-RAHMAAN, Petitioner.

No. 75398-9.

Supreme Court of Washington, En Banc.

Argued February 17, 2005.
Decided May 12, 2005.

Gregory Charles Link, Washington Appellate Project, Seattle, for Petitioner.

Carla Barbieri Carlstrom, King Co. Prosecutor's Office, Seattle, for Respondent.

C. JOHNSON, J.

¶ 1 This case involves the issue of the admissibility of hearsay statements of unavailable *1158 witnesses in a sentencing modification hearing. Petitioner Khatib Abd-Rahmaan argues that the United States Supreme Court ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applies here and requires the exclusion of hearsay evidence because Abd-Rahmaan did not have a prior opportunity to cross-examine the witnesses. In the alternative, Abd-Rahmaan argues the trial court erred in admitting hearsay evidence without making specific findings of good cause. We hold that Crawford does not apply here. Though we agree with the analytical framework employed by the Court of Appeals, we do not find the record made by the trial court sufficient to establish good cause to admit the hearsay evidence. Therefore, we reverse the decision of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2 In June 1999, Abd-Rahmaan pleaded guilty pursuant to an Alford plea[1] to delivery of cocaine. Clerk's Papers (CP) at 7-15. Adb-Rahmaan was sentenced to 38 months in custody and 12 months community placement. CP at 23.

¶ 3 In January 2003, the State sought to modify Abd-Rahmaan's sentence, alleging violations of three conditions of his community placement: (1) that Abd-Rahmaan failed to report to his community corrections officer (CCO), (2) that Abd-Rahmaan failed to provide truthful answers to a polygraph test, and (3) that Abd-Rahmaan consumed a controlled substance. Verbatim Report of Proceedings (VRP) at 2. At the sentence modification hearing, the State conceded that there was no order for the polygraph test in the judgment and sentence, and the court found nothing to support the allegation that Abd-Rahmaan consumed a controlled substance. Regarding the allegation that Abd-Rahmaan failed to report, the trial court heard testimony from Chris Salatka, Abd-Rahmaan's CCO. Salatka stated:

Mr. Abd-Rahmaan was instructed to report on all days he does not work at the Millionaires' [sic] Club. When I discovered, after he took his polygraph, he disclosed what he had been doing or had not been doing. I followed up at the Millionaires' [sic] Club. They reported to me that he had not been working on the days that I have listed on December 4th, 10th, 11th, the 12th and 13th....
He was terminated from the Federal Express on the first day he was working for them. And the reason why he was terminated was because they claimed he was dropping products. And he was, I guess he was. It was his job to carry the expensive boxes of alcohol, and he dropped several boxes. So they requested of him to leave. And at that time Mr. Abd-Rahmaan, according to this particular person at Federal Express, accused him of making threatening and intimidating gestures. They told him they felt unsafe and wanted him out of there. Now, when I followed up with what happened, after the polygraph, the Millionaires' [sic] Club reported to me that he was not allowed to work through the service of the Millionaires' [sic] Club because of what he did at the Federal Express. And, in addition, because Mr. Abd-Rahmaan did not disclose his status.

VRP at 5-6, 9-10. The court overruled Abd-Rahmaan's objection to these statements as unreliable hearsay, but did not specifically state the reasons for admitting the hearsay evidence. VRP at 10. Abd-Rahmaan was then given an opportunity to present his version of the events. After hearing both accounts, the trial court found that Abd-Rahman violated the conditions of his sentence by failing to report to his CCO and ordered 60 days of confinement.

¶ 4 On appeal, Division One of the Court of Appeals addressed whether the right to confrontation necessitates a specific written finding that hearsay evidence is reliable.[2]*1159 State v. Abd-Rahmaan, 120 Wash.App. 284, 84 P.3d 944 (2004). That court found sentence modification hearings to be substantially similar to other revocation hearings, requiring the minimum due process protections articulated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Finding that Morrissey does not provide an absolute right to confrontation, the Court of Appeals held that hearsay evidence is admissible in a sentence modification hearing where the hearsay is reliable and where there is good cause to allow it. The court found the testimony provided by the CCO regarding Abd-Rahmaan's employment status presented adequate indicia of reliability based on the detailed accounts of Abd-Rahmaan's employment given to the CCO by the Millionair Club and Federal Express. In further assessing the reliability of the hearsay statements, the court found it persuasive that Abd-Rahmaan participated in the hearing, was able to give his version of the events, and had the opportunity to call witnesses to rebut the CCO's testimony and present corroborative evidence had he wished to do so. Additionally, the Court of Appeals held the trial court had good cause to allow the hearsay evidence, inferring that there was difficulty and expense in providing the live witnesses. While the Court of Appeals noted that it preferred trial courts to make specific, written findings regarding the reliability of the evidence and the difficulty or expense of presenting live witnesses, it found the trial court record sufficient to understand the reasons for admitting the hearsay evidence.

¶ 5 After Abd-Rahmaan's motion for reconsideration was denied in the Court of Appeals, we granted limited review to determine whether the trial court erred in admitting the hearsay evidence.

ANALYSIS

¶ 6 Conceding that probationers do not have the same due process protections as criminal defendants, Abd-Rahmaan contends that on the basis of the United States Supreme Court decision in Crawford, cross-examination is the only permissible means of assessing the reliability of hearsay evidence. Because the due process required at a parole revocation hearing or sentencing modification hearing parallels the Sixth Amendment right to confrontation, Abd-Rahmaan argues the requirements set forth in Crawford should be applied in those settings. Alternatively, if we find that Crawford does not apply here, Abd-Rahmaan argues the trial court erred in admitting the hearsay because there was no finding of the reliability of the hearsay evidence or good cause to admit it.

¶ 7 The seminal case involving an individual's due process rights at a parole revocation hearing is the United States Supreme Court decision in Morrissey. In that case, the Court addressed "whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard "before" revoking his parole". Morrissey, 408 U.S. at 472, 92 S.Ct. 2593.

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State v. Abd-Rahmaan, 111 P.3d 1157 (Wash. 2005).

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