United States v. Stevenson Harrison

809 F.3d 420, 2015 U.S. App. LEXIS 22483, 2015 WL 9310445
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 23, 2015
Docket15-1246
StatusPublished
Cited by27 cases

This text of 809 F.3d 420 (United States v. Stevenson Harrison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Stevenson Harrison, 809 F.3d 420, 2015 U.S. App. LEXIS 22483, 2015 WL 9310445 (8th Cir. 2015).

Opinions

WOLLMAN, Circuit Judge.

Stevenson G. Harrison appeals from the district court’s1 order revoking his supervised release and imposing a sentence of 24 months’ imprisonment. Harrison argues that the district court erred by admitting hearsay evidence at the revocation hearing and by finding that the Virginia offense of assault on a law enforcement officer constituted a crime of violence and thus a Grade A violation under the U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines). Having reviewed the district court’s decision to revoke supervised release for abuse of discretion and its determination of the facts underlying that decision for clear error, we affirm. See United States v. Boyd, 792 F.3d 916, 919 (8th Cir.2015).

After Harrison completed a federal sentence of imprisonment and began serving a term of supervised release, the government filed a revocation petition, alleging that Harrison had violated several conditions of his supervised release. At the revocation hearing, Harrison admitted several violations but denied that he had committed the alleged two felony offenses of assault on a law enforcement officer in the Commonwealth of Virginia. To prove the violations, the government called as a witness United States probation officer Bradley Cox, who testified to the facts set forth in the government’s revocation petition, as well as the facts described in two Virginia arrest warrants and in a Virginia police .incident report. Harrison objected to Cox’s testimony, arguing that it consisted solely of information provided to him by others who were not present to testify and therefore violated Harrison’s right to confront and cross-examine witnesses under Federal Rule of Criminal Procedure 32.1. The district court overruled Harrison’s objections.

Cox testified that he had spoken with Robert Hagy, Harrison’s supervising federal probation officer in Virginia, who told Cox that on August 29, 2014, Detective Robin McCoy, Detective R.T. Foster, and Sergeant Patricia Eller of the Bristol, Virginia, police department attempted to arrest Harrison on an outstanding felony warrant. When the officers tried to handcuff Harrison, he struggled, fought, attempted to flee, and eventually broke free of the officers. As Harrison started to run down a flight of stairs, Sergeant Eller and Detective McCoy grabbed onto Harrison’s shirt in an effort to stop him. The officers held on while Harrison continued down the stairs, but Harrison’s shirt ripped, and the two officers fell down the stairs, sustaining injuries that required medical attention. Detective Foster, who witnessed these events, continued to pursue Harrison, who managed to escape. Later that day, four arrest warrants were issued for Harrison in Bristol, Virginia. Two of the warrants were related to Harrison’s altercation with Sergeant Eller and Detective McCoy and charged the felony offense of malicious injury to a law enforcement officer in violation of Virginia [423]*423Code section 18.2-51.1. The warrants stated that Harrison had maliciously caused bodily injury to Eller and McCoy with the intent to maim, disfigure, disable, or kill. The other two warrants charged Harrison with resisting arrest and obstruction of justice, both misdemeanor offenses, the details of which were described in an incident report filed by the officers. Harrison was eventually arrested in Florida on November 14, 2014.

After the district court admitted this evidence and found that Harrison had committed the violations alleged in the revocation petition, the court heard a statement from Harrison in which he made several admissions regarding the altercation with the Virginia officers. Harrison stated, “Do I deny that I ran ... ? I do not deny that.... I ran out. And as I ran out, they grabbed my shirt.” Tr. of Revocation Hr’g at 25. He acknowledged that the revocation petition and the incident report stated that the officers “grabbed my shirt, and my shirt ripped and they slipped and fell down the steps,” but he insisted, “I didn’t assault anyone. I ran down some stairs and they slipped and they fell.” Id.

Harrison first argues that the district court abused its discretion by admitting the hearsay statements, which had the effect of violating Harrison’s limited due-process right to confront and cross-examine the absent witnesses. Because a revocation hearing is not a criminal trial, the rules of evidence do not apply, and the government bears a lesser burden of proof. See Boyd, 792 F.3d at 919; see also 18 U.S.C. § 3583(e)(3) (stating that a court may revoke supervised release if the court finds a violation by a preponderance of the evidence). A defendant is entitled to “an opportunity to ... question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Fed.R.Crim.P. 32.1(b)(2)(C). The district court “must balance the [the defendant’s] right to confront a witness against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir.1986). The court should consider the reasons offered by the government to explain “why confrontation is undesirable or impractical” and the reliability of the evidence offered by the government in place of live testimony. Id. at 643. If the government “demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable,” the defendant may not be entitled to confrontation. Id. The district court did not conduct this balancing test on the record at the revocation hearing, but we may perform the analysis on review because the underlying facts have been sufficiently developed. See United States v. Martin, 382 F.3d 840, 845 (8th Cir.2004).

The government did not expressly offer an explanation for not producing the live testimony of the Virginia probation officer who spoke with Cox about Harrison’s violations or the Virginia officers who prepared the incident report and swore to the arrest warrants after their altercation with Harrison. It is apparent from the record, however, that the live testimony of these witnesses would have been unreasonably burdensome, impractical, and costly given the considerable distance they would have been required to travel. See, e.g., Bell, 785 F.2d at 644 (noting that “considerable expense” to secure the personal appearance of Kansas officers at a revocation hearing in Arkansas weighed in favor of finding good cause not to require appearance, but declining to reach the issue). The facts presented here are distinguishable from those presented in United States v. Johnson, 710 F.3d 784, 786 (8th Cir.[424]*4242013), where the government offered no explanation for the arresting officer’s unavailability, even though the defendant’s revocation hearing was held in the same state in which the absent officer’s duty station was located. See Bell,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Catrell Green
70 F.4th 478 (Eighth Circuit, 2023)
United States v. Obed Lopez-Castillo
24 F.4th 1216 (Eighth Circuit, 2022)
United States v. Demarcus Timmons
950 F.3d 1047 (Eighth Circuit, 2020)
United States v. Padilla
Tenth Circuit, 2019
United States v. Craig Sutton
916 F.3d 1134 (Eighth Circuit, 2019)
United States v. Michael Garrett
898 F.3d 811 (Eighth Circuit, 2018)
United States v. Tavares Montgomery
896 F.3d 875 (Eighth Circuit, 2018)
United States v. Keidell Doyal
894 F.3d 974 (Eighth Circuit, 2018)
United States v. Christopher McGee
890 F.3d 730 (Eighth Circuit, 2018)
United States v. Donald Anthony
710 F. App'x 280 (Eighth Circuit, 2018)
United States v. Joe Welch
879 F.3d 324 (Eighth Circuit, 2018)
United States v. Anthony Hall, Jr.
877 F.3d 800 (Eighth Circuit, 2017)
United States v. Antonio Minnis
872 F.3d 889 (Eighth Circuit, 2017)
United States v. Phillip Fields
863 F.3d 1012 (Eighth Circuit, 2017)
United States v. Autrey
263 F. Supp. 3d 582 (E.D. Virginia, 2017)
United States v. Eric Price
851 F.3d 824 (Eighth Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
809 F.3d 420, 2015 U.S. App. LEXIS 22483, 2015 WL 9310445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stevenson-harrison-ca8-2015.