State of Utah v. Tate
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IN THE UTAH COURT OF APPEALS
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State of Utah,
Plaintiff and Appellee,
v.
Lethron D. Tate,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981793-CA
F I L E D
October 15, 1999
1999 UT App 302
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Third District, Salt Lake
Department
The Honorable David S. Young
Attorneys:
Joan C. Watt and Stephanie
Ames, Salt Lake City, for Appellant
Jan Graham and Scott Keith
Wilson, Salt Lake City, for Appellee
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Before Judges Wilkins, Billings, and Orme.
WILKINS, Presiding Judge:
¶1
Defendant Lethron D. Tate
appeals the trial court's revocation of his probation and reinstatement
of his previously suspended sentence for violating the terms of his probation.
The State concedes error. We reverse.
BACKGROUND
¶2
In March 1997, Tate pleaded guilty to one count of attempted
robbery and was sentenced to zero to five years in prison. That sentence
was later suspended, and Tate was placed on probation for three years.
¶3
In August 1998, Adult Probation
and Parole filed an affidavit in support of an order to show cause alleging
Tate had violated his probation by committing aggravated assault and forgery.
Tate denied both allegations. The trial court held an evidentiary hearing
in October 1998 to determine whether Tate's probation should be revoked.
¶4
At this hearing, Officer
Richard L. Boddy, who had investigated the forgery charges, testified that
he had received information from several people that Tate was involved
in passing stolen checks at a Denny's Restaurant where he worked. The State
presented no evidence supporting the forgery charges other than the several
hearsay statements offered by Officer Boddy.
¶5
Officers Gilbert Salazar
and Kelly Kent testified about their investigation of the alleged aggravated
assault. Officer Salazar stated that he was called to investigate an alleged
assault in the parking lot of a fast food restaurant. He testified that
upon arrival, he found the injured victim and transported him to the hospital.
Officer Kent testified that two witnesses told him that an individual named
"Lee" or "Lethron" committed the assault. Officer Kent also spoke with
the victim and testified that the victim identified Tate as the assailant
from a photo lineup. The only evidence Officers Salazar and Kent had linking
Tate to the assault were the statements of several people who allegedly
witnessed Tate assault the victim and Officer Kent's statement that the
victim identified Tate from a photo lineup. Because neither the victim
nor any of the witnesses testified, the officer's testimony consisted solely
of several hearsay statements supporting the charge of aggravated assault.
¶6
In October 1998, the trial
court found that Tate had violated his probation and reinstated the original
prison term of zero to five years for attempted robbery. The trial court
based this ruling solely on the officers' testimony. Tate appeals.
ISSUE AND STANDARD OF REVIEW
¶7
The sole contested issue
on appeal is whether the trial court's erroneous admission of hearsay evidence
at Tate's probation revocation hearing requires that the order revoking
Tate's probation be remanded or vacated.
¶8
We "review the trial court's
decision to revoke defendant's probation for correctness" and accord it
no particular deference. State v. Martin, 976 P.2d 1224, 1227 (Utah
Ct. App. 1999); see also Layton City v. Peronek, 803 P.2d 1294, 1300 (Utah Ct. App. 1990) (applying correctness standard and vacating
order revoking probation where revocation was based solely on hearsay).
ANALYSIS
¶9
Tate argues the trial court
violated his due process rights by denyingܥe
I. Due Process
¶10
In Morrissey v. Brewer,
408 U.S. 471, 92 S. Ct. 2593 (1972), the United States Supreme Court concluded
that "revocation of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a proceeding does not
apply to parole revocations." Id. at 480, 92 S. Ct. at 2600. Nonetheless,
a probationer has a limited liberty interest and is entitled to minimal
due process rights. See Black v. Romano, 471 U.S. 606, 611-12,
105 S. Ct. 2254 (1985). One of the requirements of due process in this
context is "the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing confrontation)."
Morrissey,
408 U.S. at 489, 92 S. Ct. at 2604.
¶11
This requirement has been
codified in Utah Code Ann. § 77-18-1(12)(d)(iii) (Supp. 1999), which
provides that in probation revocation proceedings where the defendant denies
violating the conditions of his or her parole, "[t]he persons who have
given adverse information on which the allegations are based
shall be
presented as witnesses subject to questioning by the defendant unless the
court for other good cause otherwise orders." Id. (emphasis
added). A finding of good cause requires the trial court to balance the
defendant's interest in cross-examining a witness against the State's need
to use a particular hearsay statement. See United States v. McCormick,
54 F.3d 214, 221 (5th Cir. 1995). The purpose of the good cause requirement
is to limit the use of unreliable evidence at revocation hearings. SeeEgerstaffer
v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984).
¶12
In this case, although Tate
denied violating the terms of his probation, he was not provided an opportunity
to cross-examine the individuals with personal knowledge of the alleged
violations. Rather than calling individuals with personal knowledge of
the alleged incidents which formed the basis of the probation violation,
the State chose to make its case solely through the hearsay statements
of Officers Boddy, Salazar and Kent. Although hearsay statements can be
admissible in probation revocation proceedings, see State v.
Martinez, 811 P.2d 205, 210 (Utah Ct. App. 1991), the trial court,
before admitting hearsay, must determine there is good cause for not permitting
the probationer to cross-examine the out-of-court declarant whose statement
is sought to be introduced as evidence. See Utah Code Ann. §
77-18-1(12)(d)(iii) (Supp. 1999). In this case, the prosecution did not
seek to show good cause and the trial court failed to meaningfully address
the issue, to make a specific finding that good cause existed for not allowing
confrontation, or to evaluate the reliability of the hearsay statements
used by the State. Also, there is no evidence in the record suggesting
there was good cause for denying Tate's right of confrontation. The State
concedes this omission constitutes reversible error. Having reviewed the
record and the applicable law, we agree. Therefore, we next address what
the consequence of this error should be.
II. Remedy
¶13
Tate asserts the trial court's
erroneous admission of hearsay evidence at the probation revocation hearing
requires the order revoking Tate's probation be vacated. The State counters
by arguing that this case should be remanded to the trial court to consider
whether good cause existed and, if so, for a finding of good cause to admit
hearsay evidence or, if not, to provide Tate an opportunity to cross-examine
the witnesses with first hand knowledge of the alleged probation violations
if they can be found.
¶14
We conclude that Layton
City v. Peronek, 803 P.2d 1294 (Utah Ct. App. 1990), controls this
case. In Peronek, the trial court found the defendant had violated
the conditions of her probation and reinstated portions of her original
sentence. See id. at 1296. On appeal, we determined that defendant's
due process rights had been violated because the probation revocation was
based solely on unreliable hearsay evidence, the trial court failed to
make a finding of good cause, and there was no evidence in the record to
"suggest good cause for denying defendant th[e] fundamental right [of confrontation]."
Id.
at 1299 & n.3. Therefore, we concluded the trial court "improperly
determined [that the defendant] violated probation" and held that the proper
remedy was to vacate the order reimposing the initially suspended terms
of the sentence. Id. at 1300.
¶15
Likewise, the trial court
in this case based its decision to revoke Tate's probation solely on the
hearsay statements of Officers Boddy, Salazar, and Kent. The trial court
failed to evaluate the reliability of the hearsay statements presented
by the State or to perform the proper balancing test to determine whether
there was good cause for denying Tate's right to confrontation. Furthermore,
there is no evidence in the record showing the declarants could not be
present at the hearing or that procuring their appearance would be undesirable
or impractical. Although the State urges us to remand this case to the
trial court, we do not believe this would be the proper course of action.
"To ask the trial court to address the admissibility question now would
be to tempt it to reach a post hoc rationalization for the admission of
this pivotal evidence. Such a mode of proceeding holds too much potential
for abuse." State v. Ramirez, 817 P.2d 774, 789 (Utah 1991).
¶16
We note that our approach
comports with several other jurisdictions that have addressed this issue.
See
Commonwealth v. Maggio, 605 N.E.2d 1247, 1250 (Mass. 1993) (vacating
trial court's order where revocation of probation was based on unreliable
hearsay without a specific finding of good cause for denying confrontation);
City of Cleveland v. Houston, No. 56969, 1990 Ohio App. LEXIS 1916,
at *9 (Ohio Ct. App. May 17, 1990) (same); State v. Greene, 660 A.2d 261, 263 (R.I. 1995) (same); State v. Koliscz, 623 A.2d 452,
453 (R.I. 1993) (same); State v. DeRoche, 389 A.2d 1229, 1234 (R.I.
1978) (same). Therefore, the judgment of the trial court, revoking Tate's
probation and reimposing the original sentence of incarceration, is vacated.
CONCLUSION
¶17
We conclude the trial court's
admission of hearsay, in the absence of a specific finding of good cause
for denying confrontation, constitutes reversible error. Therefore, we
hold the trial court improperly determined Tate violated his probation,
and the order so concluding and reimposing the initially suspended terms
of sentence is vacated.
______________________________
Michael J. Wilkins,
Presiding Judge
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¶18
WE CONCUR:
______________________________
Judith M. Billings, Judge
______________________________
Gregory K. Orme, Judge
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