JEFFREY ROGERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 17, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002260-MR
JEFFREY ROGERS
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE RON DANIELS, JUDGE
ACTION NO. 92-CR-00203
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
The appellant, Jeffrey Rogers, appeals from an
order of the McCracken Circuit Court revoking his probation.
We
find that the Tennessee documents which served as a basis for the
revocation were not admissible because they were not certified.
We further find that the use of the documents alone, without
other evidence that Rogers violated the conditions of his
probation, was insufficient to establish that a violation had
occurred by a preponderance of the evidence.
Hence, we reverse
the trial court and remand with directions to reinstate his
probation.
On January 29, 1993, Rogers entered a plea of guilty to
the charge of possession of a controlled substance (cocaine).
The trial court sentenced him to two (2) years’ imprisonment,
probated for five (5) years.
In November 1995, the trial court
revoked Rogers’ probation after he tested positive for
amphetamines, methamphetamines and cocaine metabolites.
Shortly
thereafter, the trial court granted shock probation to Rogers.
On January 23, 1998, the Commonwealth again moved to
revoke Rogers’ probation, on the ground that he had been arrested
in Coffee County, Tennessee for possession of cocaine for sale or
delivery.
At the probation revocation hearing, Rogers’ probation
officer introduced the following documents:
1) An uncertified copy of an indictment by the grand
jury of the circuit court of Coffee County, Tennessee, charging a
“Jeffrey L. Rodgers” with possession of a controlled substance
(cocaine) with intent to sell or deliver;
2) An uncertified copy of an order of the Coffee County
Circuit Court, appointing counsel for “Jeffrey Rodgers” as an
indigent defendant;
3) An uncertified copy of the Coffee County Sheriff’s
report, detailing the arrest of “Rogers, Jeffrey L.” on October
17, 1997;
4) An uncertified copy of a laboratory report from the
Tennessee Bureau of Investigation, identifying as cocaine a white
powder seized following the arrest of “Jeffrey Rodgers.”
Rogers’ counsel objected to introduction of the
documents after the Commonwealth’s Attorney informed the trial
court that the documents were not certified.
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The trial court
overruled the objection and admitted the documents into evidence.
The Commonwealth then closed its case.
Rogers moved for a
directed verdict, arguing that the Commonwealth had failed to
prove by a preponderance of the evidence that he had violated the
conditions of his probation.
The trial court denied the motion.
Rogers’ wife testified that she had not seen Rogers use cocaine
since his prior revocation proceeding.
At the conclusion of the
hearing, the trial court found that there was probable cause to
find that Rogers had violated the conditions of his probation,
and that Rogers had failed to present any evidence rebutting the
Commonwealth’s prima facie case.
Consequently, the trial court
revoked Rogers’ probation and ordered him to serve the remaining
time on his conviction.
This appeal followed.
Rogers argues that the trial court applied the wrong
standard to revoke his probation.
We agree.
From our review of
the record, we find that the Commonwealth failed to establish by
competent evidence that Rogers had violated the conditions of his
probation.
Primarily, we agree with Rogers that the uncertified
copies of the Tennessee proceedings were not competent to prove
that a violation occurred.
The Commonwealth argues that Rogers failed to preserve
this issue because his attorney did not make a contemporaneous
objection to admission of the documents.
Ky., 827 S.W.2d 689, 690 (1992).
a timely objection was made.
Commonwealth v. Mixon,
However, the record shows that
Although defense counsel did not
initially object, he did raise an objection after the
Commonwealth advised the trial court that the copy of the
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indictment which had been introduced was not certified.
Thus,
the issue is properly presented in this appeal.
The trial court stated its opinion that certified
copies were not required.
Although the rules of evidence do not
apply to probation revocation proceedings, KRE 1105, such
hearings must be conducted in accordance with minimum
requirements of due process of law.
Gagnon v. Scarpelli, 411
U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); Morrissey v.
Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
A
certain amount of hearsay testimony by a probation officer is
admissible in a revocation of probation proceeding, especially
when the reliability of the witnesses can be easily ascertained.
Marshall v. Commonwealth, Ky.App., 638 S.W.2d 288 (1982).
However, the relaxed rules for revocation proceedings
do not authorize admission of uncertified documents from another
state.
Both KRS 422.040 and RCr 9.44(1) grant full faith and
credit only to certified copies of the records and judicial
proceedings of any court of any state.
Thus, for a court of this
Commonwealth to properly give full faith and credit to the
judgment of a court of another state, certification by that court
is required.
Davis v. Commonwealth, Ky., 899 S.W.2d 487, 489
(1995). In the absence of any such certification, the
authenticity of the Tennessee documents tendered by the probation
officer was not readily ascertainable.
Furthermore, there was no
oral testimony, hearsay or otherwise, that Rogers was the person
named in the Tennessee indictment and police report.
Even if the Tennessee documents had been properly
certified, moreover, we do not agree that they were sufficient,
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by themselves, to support the finding that Rogers violated the
conditions of his probation.
The trial court stated its belief
that the Commonwealth was required to prove “by a preponderance
of the evidence that probable cause existed” to believe that a
violation has occurred.
law.
This is not a correct statement of the
In revocation proceedings the Commonwealth must prove by a
preponderance of the evidence that the defendant has violated the
terms of his probation.
Rasdon v. Commonwealth, Ky. App., 701
S.W.2d 716, 719 (1986); Murphy v. Commonwealth, Ky. App., 551
S.W.2d 838, 841 (1977).
The Commonwealth is not required to
prove a conviction in order to accomplish revocation of
probation.
Tiryung v. Commonwealth, Ky. App., 717 S.W.2d 503,
504 (1986).
While a conviction for a new offense would be
grounds for revocation, an arrest for the same offense may or may
not be.
Myers v. Commonwealth, Ky. App., 836 S.W.2d 431, 433
(1992).
In Rasdon v. Commonwealth, supra, this Court suggested
that the facts that a probable cause hearing had been held
wherein the accused was held to the grand jury and that the grand
jury had found enough evidence to issue an indictment might be
sufficient to revoke probation on the ground that probable cause
existed to believe he had committed another crime.
Id. at 719.
However, this language in Rasdon is merely dicta because the
trial court in that case had made no such finding.
Moreover, it is well established that a finding of
probable cause is not the same standard of proof as preponderance
of the evidence.
Murphy v. Commonwealth, 551 S.W.2d at 841.
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Probable cause is a “flexible, common-sense standard,” which
merely requires that facts available would “warrant a man of
reasonable caution in the belief,” that a violation has occurred.
Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103 S.
Ct. 1535 (1983);
Richardson v. Commonwealth, Ky. App., 975
S.W.2d 932, 935, n. 1 (1998).
However, when the standard is
preponderance of the evidence, the trier of fact is required to
find that the defendant’s liability (or guilt) is “more probably
true than not.”
(1997).
Rackhman v. Zusstone, Ky., 957 S.W.2d 241, 245
Clearly, the preponderance of the evidence standard for
revocation of probation is higher than mere probable cause.
The essential purpose of an indictment is to charge a
described act offensive to the law as established by the
legislature.
(1990).
Offutt v. Commonwealth, Ky., 799 S.W.2d 815, 816
An indictment represents a finding by the grand jury
that there is probable cause to believe that a crime has been
committed, and that the accused committed it.
Democratic Party
of Kentucky v. Graham, Ky., 976 S.W.2d 423, 427 (1998); See also,
Branzburg v. Hayes, 408 U.S. 665, 686, 33 L. Ed. 2d 626, 643 92
S. Ct. 2646 (1972).1
Therefore, standing by itself, even a
properly certified copy of an indictment does not establish by a
preponderance of the evidence that Rogers violated the conditions
of his probation.
Furthermore, we also find that the use of the other
documents as a basis for revoking Rogers’ probation violated his
1
The role of the indictment in Tennessee is the same. State
v. Hudson, 487 S.W.2d 672, 674 (Tenn. Crim. App., 1972).
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due process rights.
The minimal due process rights afforded to a
defendant in a probation revocation proceeding include the right
to confront and cross-examine adverse witnesses, unless the
hearing officer specifically finds good cause for not allowing
confrontation.
Marshall v. Commonwealth, 638 S.W.2d at 289.
Although hearsay is permitted in revocation proceedings, the
procedure followed by the trial court afforded Rogers no
opportunity to confront and cross-examine the witnesses against
him.
The probation officer merely offered the arrest report and
laboratory report as proof that Rogers had been arrested in
Tennessee and that he had cocaine in his possession.
The
probation officer did not offer any other evidence to corroborate
the information contained in the reports.
Had they been properly
authenticated or had the information been presented in the form
of an affidavit, the police officer’s report and the laboratory
report might have been sufficient to establish a probation
violation by a preponderance of the evidence.
However, an
unsworn, uncertified police report and laboratory report, by
themselves, cannot stand as a basis to find that Rogers violated
the conditions of his probation.
To hold otherwise would render
meaningless even these minimal due process rights.
Since we have found insufficient evidence to support
the trial court’s finding that Rogers violated the conditions of
his probation, we must direct the trial court to reinstate his
probation.
However, nothing in this opinion should be
interpreted to prevent the Commonwealth from bringing a new
motion to revoke if Rogers has been convicted on the Tennessee
charges during the pendency of this appeal.
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Accordingly, the order of the McCracken Circuit Court
revoking the probation of Jeffrey Rogers is reversed, and this
matter is remanded with directions to reinstate his probation as
set forth in this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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