STATE V. GUTHRIE, 2009-NMCA-036, 145
N.M. 761, 204 P.3d 1271
CASE HISTORY ALERT: affected by
2011-NMSC-014
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JAIME GUTHRIE, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY, Ricky D.
Purcell, District Judge
Certiorari Granted, No. 31,567, March
24, 2009. Released for Publication April 14, 2009.
Gary K. King, Attorney General, Anita
Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.
Hugh W. Dangler, Chief Public Defender,
Stephanie Erin Brunson, Assistant Appellate Defender, Santa Fe, NM, for
Appellant.
JAMES J. WECHSLER, Judge. WE CONCUR: CYNTHIA
A. FRY, Chief Judge, MICHAEL D. BUSTAMANTE, Judge.
AUTHOR: JAMES J. WECHSLER.
{1} Defendant
Jaime Guthrie challenges the district court’s revocation of his probation.
Defendant argues that he was denied due process under this Court’s decision in
State
v. Phillips,
2006-NMCA-001, ¶¶ 11-16,
138 N.M. 730,
126 P.3d 546, when the
district court revoked his probation based on the hearsay testimony of a
witness who, without any personal knowledge of the bases upon which the State was
seeking revocation, read into evidence the statements included in Defendant’s
probation file. We conclude that the district court did not specifically find
good cause for not requiring confrontation as mandated by
Phillips, and
we reverse and remand. In reaching our conclusion, we take this opportunity to
clarify (1) the distinction raised in
Phillips between the Sixth
Amendment right to confrontation guaranteed to defendants in criminal
prosecutions and the Fourteenth Amendment minimum due process right to
confrontation guaranteed to defendants in probation revocation hearings and (2)
the justifications for a finding of good cause by the district court.
{2} In July
2005, Defendant pleaded guilty to three charges related to an altercation with
a law enforcement officer that took place earlier that year. Following
Defendant’s guilty plea, the district court deferred sentencing on the
condition that Defendant be placed on supervised probation for two and one half
years less one day. The conditions of Defendant’s probation required him to,
among other things, successfully complete a ninety-day residential treatment
program, regularly report to his probation officer, and make monthly probation
payments. In September 2005, Defendant allegedly violated several conditions of
his probation agreement, and the State subsequently filed a motion to revoke
his probation. Four days after the State filed its motion, a stipulated order
was filed in the district court that allowed Defendant to remain on probation
and ordered his transfer from state custody to a residential treatment center
in order to fulfill his agreement to complete a treatment program. In May 2006,
the State filed a second motion to revoke Defendant’s probation based in part
on the allegation that he failed to successfully complete his required program
at the residential treatment center.
{3} Prior to the August
10, 2006 hearing on the State’s second motion to revoke Defendant’s probation,
the State issued a subpoena to secure the presence of Defendant’s probation
officer, Cindy Chavez, at the hearing. However, the State’s subsequent “notice
of intent to call witnesses” indicated that it only planned to call Jaime
Olivas, Ms. Chavez’s supervisor, to testify. Indeed, Mr. Olivas was the only witness
who testified at the hearing.
{4} At the hearing,
before Mr. Olivas testified, Defendant requested the dismissal of the State’s
motion and argued that any testimony offered by Mr. Olivas would be hearsay and
would violate Defendant’s constitutional right under the Confrontation Clause
of the Sixth Amendment to the United States Constitution. The district court
noted the objection and proceeded with the hearing. The State then called Mr.
Olivas, who testified that he was Ms. Chavez’s supervisor, that Ms. Chavez was
required to submit probation violation reports to him, and that he could be
considered a “custodian” of such reports. Mr. Olivas then testified that he did
not sign the report authored by Ms. Chavez concerning Defendant’s alleged
probation violations. Defendant promptly made a hearsay objection, which was
overruled. Mr. Olivas then continued to testify about the statements included
in Defendant’s file. He stated that Defendant’s file indicated that Defendant
had been discharged from a program at a residential treatment center for
violating its rules, that Defendant had failed to report to the probation
office, and that Defendant had failed to make mandatory probation payments. On
cross-examination, Defendant focused exclusively on the fact that Mr. Olivas
had not previously worked on Defendant’s case, and Mr. Olivas ultimately
admitted that he had “no personal knowledge” of Defendant’s case “except for
what [was] contained in the file.”
{5} Closing arguments
followed Mr. Olivas’ testimony. The State focused its argument on its
establishment of a foundation that Mr. Olivas acted as a “business custodian”
of the report that alleged Defendant’s violations of his probation conditions.
In response, Defendant argued that he had a constitutional right “to
cross-examine and confront all the witnesses against him” and that Ms. Chavez’s
absence was therefore fatal to the State’s argument in favor of revoking
Defendant’s probation. Defendant further argued that “there is clear and
established case law . . . that the court’s decision cannot be based entirely
on hearsay.” Finally, Defendant expressed his outrage at the fact that Mr.
Olivas had not “approve[d]” the report submitted by Ms. Chavez.
{6} Ultimately, the
district court ruled in favor of the State and revoked Defendant’s probation.
In doing so, the district court stated that the testimony of Mr. Olivas was
“probative of the fact” that Defendant had violated the terms of his probation
by not successfully completing the residential treatment program. The judge
further explained that the “filings” in Defendant’s case indicated that
Defendant had not successfully completed the residential treatment program and
that Defendant had failed to provide any evidence that such was not the case.
Defendant appeals from that ruling.
CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AT PROBATION
REVOCATION HEARINGS
{7} We review the
district court’s revocation of a defendant’s probation for an abuse of
discretion.
Phillips,
2006-NMCA-001, ¶ 10. “The district court abuses its
discretion when its ruling is based on a misunderstanding of the law.”
Id.
Our task therefore requires an examination of the applicable constitutional law
to determine if the district court issued its ruling based on a
misunderstanding of Defendant’s right to confront the witnesses against him at
his probation revocation hearing. As such, our review is de novo.
See State
v. Ochoa,
2008-NMSC-023, ¶ 10,
143 N.M. 749,
182 P.3d 130 (“The application
and interpretation of law is subject to a de novo review.”).
{8} Defendant’s
argument that the district court violated his right to due process by not
permitting him to confront his probation officer, and therefore abused its
discretion in revoking his probation, relies heavily on this Court’s decision
in
Phillips. In
Phillips, we considered the revocation of a
defendant’s probation when “[t]he [s]tate’s only witness at the hearing was a
probation officer who relied solely upon statements made in unauthenticated
documents in her file.”
Phillips,
2006-NMCA-001, ¶ 1. Those statements
included “an annotation from another probation officer and some documents . . .
from Arizona,” where the defendant’s probation had previously been transferred.
Id. The probation officer who testified was otherwise unfamiliar with
the defendant’s case.
Id. ¶ 4. Over objection, the district court
concluded that the documents that included the hearsay statements that were
offered as testimony “were relevant and kept in the ordinary course of
business” and therefore allowed the probation officer to read the statements
into evidence.
Id. ¶¶ 1, 6. Relying on those hearsay statements, the
district court concluded that the defendant had violated his probation.
Id.
¶ 8. The defendant subsequently appealed to this Court, arguing that, by
relying on those statements as the sole basis upon which to revoke his
probation, the district court violated “his confrontation and due process
rights.”
Id. ¶¶ 1, 9.
{9} In reaching our
decision in
Phillips, we explained that the formal rules of evidence do
not apply to probation revocation hearings,
id. ¶ 11;
see also Rule
11-1101(D)(2) NMRA (stating that the rules of evidence are not applicable to
proceedings for “granting or revoking probation”), and we clarified that the
pertinent question was whether the defendant was “afforded minimum due process”
in light of the hearsay testimony to which he objected.
Phillips,
2006-NMCA-001, ¶ 11. As such, the rule that came out of
Phillips was
that, before a district court may revoke a defendant’s probation, due process
requires the actual presence and testimony of the person whose statements form
the basis of revocation, unless the state makes an adequate showing, and the
district court makes a specific finding, of “good cause” for not calling such
person as a witness.
See id. ¶¶ 12, 14, 16.
{10} Although
Phillips
may seem to address a defendant’s right under the Confrontation Clause of the
Sixth Amendment to confront and cross-examine witnesses at probation revocation
hearings, it does not. Rather,
Phillips explains the right as one that
exists under the authority of the Due Process Clause of the Fourteenth
Amendment.
See id. ¶ 12 (explaining that the question is one of “due
process” and citing the applicable federal case law explaining the existence of
the right under the Fourteenth Amendment). In reaching this distinction, we
note that the Confrontation Clause of the Sixth Amendment applies only to
“criminal prosecutions.” U.S. Const. amend. VI (“In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him.”). The right to confront witnesses that is guaranteed in the Sixth
Amendment does not apply to probation revocation hearings.
See, e.g.,
State
v. Rose, 171 P.3d 253, 257 (Idaho 2007) (“A motion to revoke probation is
not a criminal prosecution. Consequently, the Sixth Amendment’s Confrontation
Clause, which grants to criminal defendants the right to confront adverse
witnesses, does not apply to probationers.” (citations omitted));
see also
State v. Sanchez,
109 N.M. 718, 719,
790 P.2d 515, 516 (Ct. App. 1990)
(stating that a probation revocation hearing is not a criminal prosecution).
However, as we concluded in
Phillips, the right to confront witnesses
whose statements form the basis of a district court’s revocation of a
defendant’s probation is implicit in the Due Process Clause of the Fourteenth
Amendment, and it is that constitutional authority that governs the propriety
of admitting hearsay evidence in support of revocation at probation revocation
hearings.
See Phillips,
2006-NMCA-001, ¶¶ 12, 16.
{11} Against that
backdrop, we must address the State’s argument that Defendant did not
adequately raise the issue in district court for purposes of preservation. “In
order to preserve an error for appeal, it is essential that the ground or
grounds of the objection or motion be made with sufficient specificity to alert
the mind of the trial court to the claimed error or errors, and that a ruling
thereon then be invoked.”
State v. Varela,
1999-NMSC-045, ¶ 25,
128 N.M.
454,
993 P.2d 1280 (internal quotation marks and citation omitted). Our
question therefore becomes whether the constitutional and hearsay objections
that Defendant raised at the hearing were sufficiently specific to alert the
mind of the district court to the due process right to confrontation issue that
Defendant now argues on appeal, thereby adequately invoking a ruling.
{12} As discussed above,
and as Defendant concedes in his brief in chief, the constitutional right to
confrontation at issue in this case flows from the Fourteenth Amendment, not
the Sixth Amendment. The State therefore argues that, although Defendant
adequately preserved a Sixth Amendment Confrontation Clause argument, he failed
to preserve the Fourteenth Amendment due process argument, based on
Phillips,
that he now raises on appeal. In support of its argument, the State contends
that all of Defendant’s objections were expressly couched in terms of his
inapplicable rights under the Sixth Amendment. Defendant, on the other hand, points
our attention to the “confrontation objection” that his counsel “made more
generally under the United States Constitution” in closing argument.
{13} Although our review
of the audio recording of Defendant’s probation revocation hearing confirms the
State’s contention that Defendant initially made only a Sixth Amendment
constitutional objection, it also reveals that Defendant did, indeed, make a
more general constitutional argument regarding confrontation in his closing
statement. Specifically, Defendant referred to his right “to cross-examine and
confront all the witnesses against him” as well as the “clear and established
case law” that establishes such a right. Indeed, Defendant’s argument could
have been made more artfully, and this problem could have been entirely avoided
had Defendant specifically structured his argument in terms of due process.
However, although
Phillips is clear in its holding that the Fourteenth
Amendment and not the Sixth Amendment is at issue, the language of
Phillips
is not at all times clear as to the type of argument a defendant needs to make.
For instance,
Phillips speaks in general terms at the beginning of the
opinion that its holding is “that [the d]efendant’s right to confront the
witnesses against him was violated.”
Phillips,
2006-NMCA-001, ¶ 2. In
addition, the section of
Phillips that discusses due process
requirements is labeled “The Confrontation Clause and Admissibility of
Evidence.”
Id. ¶¶ 11-16. Due to this lack of clarity, we will not punish
Defendant for his failure to articulate the terms “Fourteenth Amendment,” “due
process,” or “
Phillips” in his objections when his claimed error of a
lack of confrontation was generally argued before the district court.
See
Garcia ex rel. Garcia v. La Farge,
119 N.M. 532, 540-41,
893 P.2d 428,
436-37 (1995) (accepting the sufficiency of the plaintiffs’ due process
arguments even though they “were not a model of clarity, and certainly could
have been made with more specificity,” and stating that “[t]he rules that
govern the preservation of error for appellate review are not an end in
themselves, rather they are instruments for doing justice”). We intend this
opinion to correct this lack of clarity.
{14} Because we conclude
that Defendant adequately preserved his argument for appeal, we must next apply
the rule in
Phillips to his case. Defendant argues, and we agree, that
Phillips
mandates the district court to make a specific finding of good cause for not
requiring confrontation before revoking a defendant’s probation based on
hearsay testimony.
See Phillips,
2006-NMCA-001, ¶ 14. As we read
Phillips,
the district court may make this finding by (1) specifically addressing the
State’s problems in securing the presence of the absent witness or (2)
specifically stating the reasons that the hearsay evidence offered has
particular indicia of accuracy and reliability such that it has probative
value.
See id. ¶¶ 16-17.
{15} In this case, the
district court did not address Ms. Chavez’s absence. It stated that the evidence
was “probative of the fact” of Defendant’s probation violation and that the
“filings” in the case showed that Defendant had not successfully completed the
residential treatment program. Although these statements concerning the
evidence bear on the issue of good cause, they are merely conclusions; they do
not specifically state the reasons that the evidence was sufficiently accurate
or reliable so as to excuse the presence of Ms. Chavez.
Cf. State v.
Scurry,
2007-NMCA-064, ¶¶ 12, 14,
141 N.M. 591,
158 P.3d 1034 (holding,
with regard to the need for a specific finding of a serious violent offense to
satisfy the Earned Meritorious Deductions Act, that the district court’s
findings need to sufficiently justify and specifically indicate the basis for
its conclusions). They are therefore insufficient to satisfy the “good cause”
requirement of
Phillips. As a result, because the district court did not
properly apply the due process standard of
Phillips, we reverse the
revocation of Defendant’s probation and remand to the district court to conduct
further proceedings that meet this standard.
{16} Because we remand,
we take this opportunity to clarify
Phillips as it may apply to the
record in this case. In particular, we address our declination in
Phillips
to consider the force of the business records exception in that case.
{17} In
Phillips,
the probation officer testified by reading from unauthenticated documents in
the probation file.
Phillips,
2006-NMCA-001, ¶ 1. The probation officer
said that she was the custodian of the records and that they were “kept in the
ordinary course of business.”
Id. ¶ 8 (internal quotation marks
omitted). The documents included notations from another probation officer and
documents likely from the probation department in Arizona, which had
responsibility of Defendant.
Id. ¶¶ 4, 6. The probation file also
included documents ascribed to “Myrna” without indicating Myrna’s relationship
to the case or the reason for her providing documents to the probation officer.
Id. ¶ 13.
{18} We did not address
the admissibility of the documents in the probation officer’s file in
Phillips
under the business records exception, Rule
11-803(F) NMRA, focusing instead on
the due process concerns of revoking probation based entirely upon the
probation officer’s reading of documents “prepared and given to her by other
persons without any showing or finding of good cause for not calling those
people as witnesses.”
Phillips,
2006-NMCA-001, ¶¶ 2, 11 (“[T]he question
before us is not so much whether the testimony fell under the business records
exception, but whether, in this informal environment, [the d]efendant was
afforded minimum due process.” (citation omitted)). Ultimately, when we
analyzed the evidence in
Phillips, we held that the state did not meet
its burden of establishing a probation violation with reasonable certainty.
Id.
¶ 17. We stated, quoting
State v. Vigil,
97 N.M. 749, 753,
643 P.2d 618,
622 (Ct. App. 1982), “[w]hile some hearsay is permissible in a probation
revocation hearing, when that hearsay is ‘untested for accuracy or reliability,
[it] lacks probative value; the result is that the revocation of probation does
not rest on a verified fact.”
Phillips,
2006-NMCA-001, ¶ 17 (second
alteration in original).
{19} In
Vigil, we
held that the hearsay statement of a confidential informant, as testified to by
a detective and as contained in a probation officer’s report, was insufficient
to support a probation revocation. 97 N.M. at 753, 643 P.2d at 622. The hearsay
was untested for accuracy or reliability and therefore lacked probative value.
Id.
Yet we recognized that hearsay may have probative value based on its “rational
persuasive power.”
Id. at 752, 643 P.2d at 621. Indeed, we specifically
recognized that hearsay may be considered in probation revocation hearings “if
of probative value, even though it may be in the form of letters, reports of
probation officers and similar matter.”
Id. (internal quotation marks
and citation omitted).
{20} In the context of
the proper use of probative hearsay evidence in a probation revocation hearing,
the requirement of “good cause” to relax the need for confrontation also
focuses upon the need for accurate or reliable evidence. The district court
must balance the difficulty in obtaining the witness in question along with the
probative value of the evidence without the witness.
See id. The weaker
the probative value, the greater the need for confrontation, and, hence, the
greater the need to justify the absence of the witness. The stronger the
probative value, the lesser the needs of confrontation and justification.
Indeed, with a showing of sufficiently probative or reliable hearsay evidence,
there is no need to show good cause for the absence of the witness.
See id.
at 751-53, 643 P.2d at 620-22 (stating that the district court must
specifically find good cause for not allowing confrontation and noting that
hearsay evidence without confrontation is sufficient if of probative value).
{21} Business records can
be sufficiently reliable to support a probation revocation.
See Robinson v.
Cox,
77 N.M. 55, 59-60,
419 P.2d 253, 256-57 (1966) (upholding parole
revocation based on sole evidence of letter). To be sure, the indicia of
reliability of particular business records give rise to the very reason that
they are admissible as an exception to the rule that hearsay is inadmissible.
See
State v. Christian,
119 N.M. 776, 779,
895 P.2d 676, 679 (Ct. App.
1995) (“The reliability of business records is usually premised upon routine,
trusted patterns of record generation and the confidence engendered by showing
that a particular record is created and maintained in conformity with that
routine.”). In
Phillips, although we did not directly address the
reliability of the probation officer’s file, there were significant questions
raised as to its reliability.
See Phillips,
2006-NMCA-001, ¶¶
18-21. However, we do not wish to foreclose the district court, in this or
other cases, from analyzing the documents before it in order to ascertain
whether they are sufficiently probative so as to enable it to find good cause
for not requiring confrontation.
{22} We reverse the
district court’s revocation of Defendant’s probation and remand for further
proceedings in accordance with this opinion.
CYNTHIA A. FRY, Chief Judge
MICHAEL D. BUSTAMANTE, Judge
Topic Index for State v. Guthrie, No. 27,022
AE-PA Preservation of
Issues for Appeal
CA-RT Right to
Confrontation
CA-RV Revocation of
Probation