CHARLES WAYNE "CHUCKY" ASHER v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: March 26, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
CHARLES WAYNE “CHUCKY” ASHER
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 01-CR-00131
COMMONWEALTH OF KENTUCKY
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COMBS, DYCHE, AND KNOPF, JUDGES.
In September 2002, Charles Asher was convicted,
based on his guilty plea, of two counts of illegal possession of
controlled substances in violation of KRS 218A.1415.
Circuit Court sentenced him to two concurrent five-year terms of
imprisonment, then probated that sentence for five years.
Although the parties have not included the order in the record,
apparently as a condition of his probation Asher was not to use
or possess illegal drugs.
In January 2003, Asher was arrested on allegations
that he had violated that condition of his probation.
revocation hearing on February 6, 2003, Asher’s probation
officer testified that during his meeting with Asher in December
2002 he had asked Asher for a urine sample for drug testing, but
Asher had told him that he would fail the test because he had
recently consumed marijuana and pain pills.
to postpone the test for a month.
The officer agreed
He took a sample during his
January meeting with Asher and submitted it for analysis to an
The lab reported the presence in the
sample of marijuana and cocaine.
It was soon after the
officer’s receipt of this report that he initiated the
Asher objected to the officer’s hearsay testimony
regarding the test results and argued that the printed lab
report on which the officer relied did not meet the standards of
admissibility enunciated by this Court in Byerly v. Ashley.1
Although the trial court overruled Asher’s objection, its order
revoking his probation, entered February 12, 2003, indicates
that it based its decision not on the lab report, but on the
officer’s testimony that in December 2002 Asher had admitted
Ky. App., 825 S.W.2d 286 (1991).
using marijuana and pain pills.
It is from that order that
Asher argues that the trial court erred by admitting
testimony concerning the lab report and that without that
testimony the evidence was insufficient to justify revocation.
It is well established, however, that a probationer’s statements
to his probation officer may be used against him at a revocation
The officer’s testimony that Asher admitted having
violated the terms of his probation by using marijuana and pain
pills was sufficient evidence to support the trial court’s
exercise of its discretion in this case.
Thus, even if we
agreed with Asher that the Commonwealth failed to justify its
use of the hearsay lab report,3 he would not be entitled to
Accordingly, we affirm the February 12, 2003, order of
the Clay Circuit Court.
Childers v. Commonwealth, Ky. App., 593 S.W.2d 80 (1979).
“The minimal due process right to confront and cross-examine
witnesses is not absolute. Courts have limited the right to
confrontation afforded during revocation proceedings by
admitting substitutes for live testimony, such as reports,
affidavits and documentary evidence. . . . However, hearsay
evidence should be considered only if there is good cause to
forgo live testimony. . . . Good cause is defined in terms of
‘difficulty and expense of procuring witnesses in combination
with ‘demonstrably reliable or ‘clearly reliable’ evidence.’”
State v. Dahl, 990 P.2d 396, 401 (Wash. 1999) (citations
omitted). See also State v. Graham, 30 P.3d 310 (Kan. 2001);
State v. Portis, 929 P.2d 687 (Ariz. App. 1996). Under Byerly
v. Ashley, it is doubtful whether a lab report completely devoid
of chain-of-custody information could be deemed “clearly
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Janine Coy Bowden
Assistant Attorney General