State v. D Hadley

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 27,796 5 DUANE HADLEY, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Thomas J. Hynes, District Judge

9 Gary K. King, Attorney General 10 Katherine Zinn, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Hugh W. Dangler, Chief Public Defender 14 Karl Erich Martell, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 WECHSLER, Judge. 19 Defendant Duane Hadley challenges the district court’s revocation of his 20 probation. Defendant argues that (1) he was denied due process when the district 21 court revoked his probation based, in part, on the hearsay testimony of his probation

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1 officer regarding the contents of a police report and (2) this Court’s decision in State 2 v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, requires the reversal of 3 the district court’s order. We conclude that Defendant failed to adequately preserve 4 in the district court the argument that he now makes on appeal and affirm. 5 BACKGROUND 6 On May 31, 2005, Defendant pleaded guilty to two fourth-degree felonies for 7 contributing to the delinquency of minors. The district court subsequently suspended 8 Defendant’s sentence and ordered Defendant to serve three years of probation. The 9 conditions of Defendant’s probation included, among other things, (1) “successfully 10 completing any level of supervision and/or treatment program . . . as deemed 11 appropriate by the Probation/Parole Officer,” (2) not possessing or consuming alcohol, 12 and (3) not having contact with anyone under the age of eighteen. On December 5, 13 2006, the State filed a motion to revoke Defendant’s probation in the district court. 14 In its motion, the State alleged that Defendant had been a passenger in a car that was 15 stopped by the police in the early hours of one October 2006 morning. The State 16 further alleged that the driver of the car was a fourteen-year-old girl and that 17 Defendant was in possession of a bottle of malt liquor. 18 On January 18, 2007, the matter came before the district court for a hearing.

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1 The only witness who testified at the hearing was Defendant’s probation officer, 2 Patricia Fordyce. Ms. Fordyce first testified that Defendant had arrived at one of his 3 mandatory counseling sessions appearing to be under the influence of alcohol. 4 Defendant objected to that testimony, arguing that it was inadmissible hearsay 5 evidence and that it violated the Confrontation Clause. The district court responded 6 by stating that the Confrontation Clause did not apply to probation revocation hearings 7 and that it was permissible to offer hearsay evidence at such proceedings. Shortly 8 thereafter, the State shifted its focus to the October 2006 incident and requested that 9 the police report pertaining to it be entered into evidence. Defendant then made a 10 “foundation” objection. The district court asked Ms. Fordyce to explain her 11 foundation, and when the State made a second attempt to offer the police report into 12 evidence, Defendant again objected. Defendant protested the fact that there was no 13 testimony offered by the police officer who drafted the police report. In response, the 14 district court again explained that hearsay evidence may be admitted at probation 15 revocation hearings. Ultimately, Defendant and the district court came to an 16 agreement that Ms. Fordyce would be allowed to testify as to what was written in the 17 police report but that the report itself would not be admitted into evidence. The 18 district court then instructed Ms. Fordyce, without further objection by Defendant, to

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1 testify as to what the police officer wrote in the report. Accordingly, Ms. Fordyce 2 testified that the police report included the following statements: (1) on the night in 3 question, a vehicle driven by an intoxicated fourteen-year-old girl, in which Defendant 4 was a passenger, was pulled over by a police officer; (2) after pulling the vehicle over, 5 the police officer observed Defendant in the back seat attempting to hide a bottle of 6 malt liquor from the officer’s view; and (3) the officer then identified Defendant as 7 being on probation and subsequently contacted Ms. Fordyce. Next, Ms. Fordyce 8 testified that she then, after the police officer contacted her about the incident, 9 “authorized a probation hold on [Defendant]”. 10 Following the testimony of Ms. Fordyce, Defendant renewed his 11 “Confrontation Clause” objection, stating that, although hearsay was admissible, he 12 still had the right to confront the arresting officer. The district court responded by 13 stating, “I don’t think the Confrontation Clause applies in probation revocation 14 hearings.” Based on that legal conclusion, the district court overruled the objection, 15 and Defendant did not make any further argument regarding his right to confront 16 witnesses at the hearing. Ultimately, the district court ordered the revocation of 17 Defendant’s probation. In so ruling, the district court specifically noted, among other 18 things, that Defendant had violated the terms of his probation agreement by being in

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1 the car with the fourteen-year-old girl, as was stated in the October 2006 police report. 2 Defendant appeals from that order.

3 CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AT PROBATION 4 REVOCATION HEARINGS

5 In making his argument that the district court erred in revoking his probation, 6 Defendant principally relies on Phillips. In Phillips, we considered the revocation of 7 a defendant’s probation when “[t]he [s]tate’s only witness at the hearing was a 8 probation officer who relied solely upon statements made in unauthenticated 9 documents in her file.” Id. ¶ 1. Those statements included “an annotation from 10 another probation officer and some documents . . . from Arizona,” where the 11 defendant’s probation had previously been transferred. Id. The probation officer who 12 testified was otherwise unfamiliar with the defendant’s case. Id. ¶ 4. Over objection, 13 the district court concluded that the documents that included the hearsay statements 14 that were offered as testimony “were relevant and kept in the ordinary course of 15 business” and therefore allowed the probation officer to read the statements into 16 evidence. Id. ¶¶ 1, 6. Relying on those hearsay statements, the district court 17 concluded that the defendant had violated his probation. Id. ¶ 8. The defendant 18 subsequently appealed to this Court, arguing that, by relying on those statements as 19 the sole basis upon which to revoke his probation, the district court violated “his

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1 confrontation and due process rights.” Id. ¶¶ 1, 9. 2 In Phillips, we held that, even though the formal rules of evidence do not apply 3 to probation revocation hearings, id. ¶ 11, due process requires the actual presence and 4 testimony of the person whose statements form the basis of a revocation of probation, 5 unless the state makes an adequate showing, and the district court makes a specific 6 finding of “good cause” for not calling such person as a witness. See id. ¶¶ 12, 16. 7 A showing of “good cause” may include, among other things, a showing regarding the 8 difficulty of securing the presence of a particular witness or a showing regarding the 9 particular indicia of reliability or accuracy of the offered hearsay evidence. See State 10 v. Guthrie, 2009-NMCA-___, ¶ 14, ___ N.M. ___, ___ P.3d ___. 11 PRESERVATION 12 It does not appear from the record before us that the State made a showing of 13 good cause, or that the district court made a specific finding of good cause, as required 14 by Phillips. However, the State argues that Defendant did not preserve this argument 15 for appellate review because Defendant conceded that Ms. Fordyce could testify about 16 the content of the police report at issue. “In order to preserve an error for appeal, it 17 is essential that the ground or grounds of the objection or motion be made with 18 sufficient specificity to alert the mind of the trial court to the claimed error or errors,

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1 and that a ruling thereon then be invoked.” State v. Varela, 1999-NMSC-045, ¶ 25, 2 128 N.M. 454, 993 P.2d 1280 (internal quotation marks and citation omitted). We 3 agree with the State that Defendant did not adequately preserve his argument that the 4 district court erred in allowing Ms. Fordyce to testify about the content of the police 5 report without affording Defendant the ability to confront the police officer who 6 prepared the report. 7 Defendant objected to the receipt of the police report in evidence, raising the 8 lack of testimony by the police officer who prepared the report. After discussion, 9 Defendant agreed that Ms. Fordyce could testify to the content of the report without 10 the report being in evidence. He did so without further objection. Even though 11 Defendant again raised his objection in closing argument, the testimony had been 12 received in evidence upon Defendant’s concession and without objection. With that 13 evidence, the availability of the police officer who prepared the report to testify was 14 no longer significant. Neither the State nor the district court was required to show 15 good cause for the receipt of the evidence. 16 CONCLUSION 17 The district court did not improperly revoke Defendant’s probation. We affirm.

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1 IT IS SO ORDERED.

2 _______________________________ 3 JAMES J. WECHSLER, Judge

4 WE CONCUR:

5 _________________________________ 6 CYNTHIA A. FRY, Chief Judge

7 _________________________________ 8 MICHAEL D. BUSTAMANTE, Judge