606 P.2d 156 (Nev. 1980), 10674, Anaya v. State

Docket Nº:10674.
Citation:606 P.2d 156, 96 Nev. 119
Party Name:Benito Lawrence ANAYA, Appellant, v. The STATE of Nevada, Respondent.
Case Date:January 24, 1980
Court:Supreme Court of Nevada

Page 156

606 P.2d 156 (Nev. 1980)

96 Nev. 119

Benito Lawrence ANAYA, Appellant,


The STATE of Nevada, Respondent.

No. 10674.

Supreme Court of Nevada.

January 24, 1980.

Page 157

Morgan D. Harris, Clark County Public Defender, and George E. Franzen, Deputy Public Defender, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., Clark County, and Gary D. Weinberger, Deputy Dist. Atty., Las Vegas, for respondent.

[96 Nev. 120] OPINION

MOWBRAY, Chief Justice:

Appellant Benito Anaya seeks review of the district court's [96 Nev. 121] order revoking his probation. Anaya contends that the district court erred both in finding that his waiver of his preliminary hearing constituted a waiver of his due process rights at the later revocation hearing and in admitting the multiple hearsay testimony of his probation officer for the purpose of establishing a substantive violation of the terms of his probation. We agree and therefore reverse and remand to the district court for a new revocation hearing.

In July, 1977, Anaya was placed on probation for a term not to exceed five years. In addition to other conditions of probation, he was ordered to enter and complete a drug treatment program approved by the Department of Parole and Probation, to maintain a blood alcohol level of below .10, and to submit to search by any probation officer on request. Appellant was then placed by the Treatment Alternative to Street Crime (TASC) program in an approved Veterans Administration drug rehabilitation center in Brentwood, California. Appellant later requested permission of his counselor to return to Las Vegas to seek another program. He returned to Las Vegas and reported to TASC, which placed him in a rehabilitation program at Fitzsimmons House in Las Vegas. He reported to the probation department, registered as an ex-felon, and reported to probation officials that he had obtained a job. On November 7, 1977, appellant was arrested by North Las Vegas police for driving under the influence, a violation of NRS 484.379. The State moved to revoke Anaya's probation alleging violations of his probation with respect to intoxicants, failure to cooperate with probation authorities, failure to conform his conduct to the law, and failure to complete a drug rehabilitation program.

A probation revocation hearing was held on January 24, 1978. The State's principal witness was appellant's probation officer, David Hill, who testified that appellant had waived his right to a preliminary inquiry, under NRS 176.216. He further testified that, according to an arrest report, appellant's blood alcohol level at the time of his arrest on November 7 was .220. The arrest report referred to by Hill was not entered into evidence; nor were the arresting officers called to testify by the State, although they had been present on previous occasions when the revocation hearing had been continued. In response to Anaya's constitutional and statutory objections to Hill's testimony, the district court ruled that the confrontation rights granted by NRS 176.217(2)(d) and by the United States Constitution had been waived by appellant when the preliminary inquiry was waived. At the close of the hearing, appellant's probation was revoked, and this appeal was taken.

[96 Nev. 122] Parole and probation revocations are not criminal prosecutions; the full panoply of constitutional protections afforded a criminal defendant does not apply. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Revocation proceedings, however, may very well result in a loss of liberty, thereby triggering the flexible but fundamental protections of the due process clause of the Fourteenth Amendment. Id. Due process requires, at a minimum, that a revocation be based upon "verified facts" so that "the exercise of discretion will be informed by an accurate knowledge of the (probationer's) behavior." Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602.

In order to insure that this constitutional standard is achieved and to offer guidance to the states in structuring their respective revocation procedures, the United States Supreme Court, in Morrissey and Gagnon,

Page 158

outlined the minimal procedures necessary to revoke probation or parole. A preliminary inquiry, to determine whether there is probable cause to believe that the probationer violated the conditions of his or her probation, is required, at which the probationer must be given notice of the alleged probation violations, an opportunity to appear and speak on his own behalf and to bring in relevant information, an opportunity to question persons giving adverse information, and written findings by the hearing officer, who must be "someone not directly involved in the case." Morrissey, 408 U.S. at 485-87, 92 S.Ct. at 2602. If probable cause is found, the probationer is entitled to a formal revocation hearing, less summary than the preliminary inquiry, at which the same rights attach, Gagnon, 411 U.S. at 786, 93 S.Ct. 1756, before a "neutral and detached" hearing body, Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. The function of the final hearing is to determine not only whether the alleged violations actually occurred, but whether "the facts as determined warrant revocation." Id. at 480, 488, 92 S.Ct. at 2603; See Gagnon, 411 U.S. at 790, 93 S.Ct. 1756.

These constitutional standards have been codified, in part, in Nevada. See NRS 176.216-.218. NRS 176.217(2)(d) provides that at the preliminary inquiry a probationer shall be allowed to "(c)onfront and question any person who has given adverse information on which a revocation of his probation may be based, unless in the opinion of the inquiring officer the person would be subjected to a risk of harm by disclosure of his identity." The statute is silent, however, as to the standards applicable to the final revocation hearing, which is held before a district judge. NRS 176.221. As noted above, Morrissey and [96 Nev. 123] Gagnon mandate that the due process protections available at the preliminary hearing apply to the less summary final revocation hearing with equal, if not greater, force. We therefore hold that a probationer has a due process right to confront and question witnesses giving adverse information at the formal revocation hearing which is not foreclosed by negative inference from NRS 176.217 which grants this right at the preliminary inquiry. Cf. Milchem, Inc. v. District Court, 84 Nev. 541, 549, 445 P.2d 148, 153 (1968) (this Court will construe statutes to avoid unconstitutionality whenever possible). In the instant case, the district court determined that, by waiving his right to a preliminary inquiry, appellant had also waived his due process confrontation rights at the final hearing. Since the record does not demonstrate that appellant knowingly and intelligently waived a...

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