Bobby McDaniel v. State of Arkansas

ar00-678

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR00-678

DECEMBER 20, 2000

BOBBY MCDANIEL

AN APPEAL FROM THE APPELLANT WASHINGTON COUNTY CIRCUIT v. [CR99-567]

STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY, APPELLEE CIRCUIT JUDGE

AFFIRMED

This is a probation revocation case in which appellant appeals from an order finding that he violated the terms and conditions of his probation and sentencing him to ten years in the Arkansas Department of Correction with six years suspended. We affirm the trial court's ruling.

On July 6, 1999, appellant, Bobby Ray McDaniel, pled guilty to possession of a controlled substance (methamphetamine) and was placed on three years of supervised probation subject to the usual conditions. Specifically, appellant agreed to report to his probation officer as directed and to submit to drug testing at the probation officer's discretion.

On July 7, 1999, appellant reported to his probation officer, Randy Sanders, for his initial interview. According to Sanders, appellant voiced objections to each of the conditions, stating that he did not know what he was getting into when he agreed to probation. Sanders testified that appellant also indicated that he did not want to submit to any means of drug testing because he had been informed that DNA could be extracted from urine, blood, or saliva. Based on what Sanders considered to be an uncooperative attitude, he decided to end this initial meeting with appellant and to allow appellant to discuss his conditions of probation with another attorney. Sanders stated that he instructed appellant to contact him the following day with a decision on whether to continue with his probation.

Sanders testified that appellant did not contact him on July 8, 1999, or on July 9, 1999. Sanders subsequently filed a violation report.

Sanders stated that he next saw appellant on August 10, 1999, when appellant reported to his office. Sanders stated that he informed appellant that he had filed a violation report and was seeking a warrant for appellant's arrest. According to Sanders, appellant left the building and proceeded to make a scene in the parking lot where Sanders arrested appellant for violating a condition of his probation.

Sanders's next contact with appellant came on November 24, 1999, while appellant was being held at the Washington County Jail on two counts of possession of a controlled substance (methamphetamine and marijuana) and one count of possession of drug paraphernalia. Sanders went to the jail to check appellant's urine for evidence of drug use. Appellant did not provide a sample, but Sanders testified at the revocation hearing that hewas not sure whether appellant refused, was unable to provide a sample, or did not understand what was going on. The following exchange also occurred between the prosecutor and Sanders:

Did he make any additional comments to you in the restroom, unsolicited comments to you in the restroom about his inability to take the test or not wanting to take the test?

Unsolicited, he told me that he needed to go to Charter Vista. At that point I asked him why.

Okay.

He told me, "Because I've got a serious drug problem." I said "Methamphetamine?" He said, "Yes."

According to Sanders, appellant went on to state that he had used methamphetamine the day before and to show track marks on his left arm indicative of methamphetamine use.

After the revocation hearing, the trial court revoked appellant's probation for failure to report as directed on July 8, 1999, and for drug use. The court sentenced appellant to ten years in the Arkansas Department of Correction with six years suspended. Appellant contends on appeal that the trial court erred in admitting Sanders's testimony regarding his "confession" of methamphetamine use and that the evidence was not sufficient to support a finding that he violated the terms and conditions of his probation.

Appellant argues that the trial court should have suppressed his confession of methamphetamine use because it was the result of an un-Mirandized custodial interrogation. In Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983), this court held that a probationer's statement obtained by a probation officer is admissible in revocation proceedings even if the probation officer did not advise the probationer of his Mirandarights. Appellant urges that the instant case is distinguishable from Fitzpatrick because in his case no one testified that appellant was ever read his Miranda rights. We note, however, that in the case cited by the Fitzpatrick for support in its ruling, Childers v. Commonwealth, 593 S.W.2d 80 (Ky. Ct. App. 1979), there was no evidence that the probationer was ever read his Miranda rights. Therefore, we conclude that the fact that the probationer had been previously informed of his Miranda rights was not determinative in Fitzpatrick.

Appellant also cites the United States Supreme Court case Minnesota v. Murphy, where in a footnote the court noted a difference in a typical meeting between a probation officer and a probationer, and an interview conducted by a probation officer of a probationer being held in police custody. 465 U.S. 420, 429 n.5 (1984). Murphy, however, is distinguishable from the instant case in that Murphy involved the use of a probationer's statement in a criminal action in which the probationer was the defendant.

The United States Supreme Court has recognized that although revocation proceedings must comport with the requirements of due process, they are not criminal proceedings. Gagnon v. Scarpelli, 411 U.S. 778 (1973). "[T]hus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Certain rules of evidence, including the hearsay rule, do not apply strictly to a revocation hearing as they would in a trial. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). Moreover, the burden of proof varies. In a criminal trial, the State must prove its case beyond a reasonable doubt, but the burden of proof in a revocation proceeding is by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). We conclude, therefore, that statements made by probationers to probation officers, even while the probationer is in custody, may be admitted in revocation proceedings. We note, however, that such statements may not be used as evidence in a criminal prosecution. See Murphy, supra, stating:

Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.

465 U.S. 420, 436 n.7.

Appellant's second point on appeal is that the evidence was insufficient to support a finding that he violated the terms and conditions of his probation. The State, however, asserts that appellant failed to move for a directed verdict at the close of all the evidence, and, therefore, he is procedurally barred from challenging the sufficiency of the evidence on appeal. We agree.

Rule 33.1 of the Arkansas Rules of Criminal Procedure was amended on April 8, 1999, to require a motion for directed verdict in a non-jury trial and now states in pertinent part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to thesufficiency of the evidence to support the verdict or judgment.

Although our courts have ruled that a revocation proceeding is not the same as a criminal proceeding, in Miner v. State, 342 Ark. ___, ___ S.W.3d ___ (2000), our supreme court held that a specific directed-verdict motion is required by Rule 33.1 to preserve a sufficiency-of-the-evidence challenge in revocation proceedings. Therefore, we conclude that appellant's failure to make such a motion requires that we affirm without reaching the merits of his argument.

Pittman and Jennings, JJ., agree.