State v. Houston
| Citation | 947 N.W.2d 602,28 Neb.App. 699 |
| Decision Date | 04 August 2020 |
| Docket Number | No. A-19-851.,A-19-851. |
| Parties | STATE of Nebraska, appellee, v. Shakur M. HOUSTON, appellant. |
| Court | Court of Appeals of Nebraska |
Thomas C. Riley, Douglas County Public Defender, Korey T. Taylor, and Reilly White, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.
Shakur M. Houston appeals from an order of the district court for Douglas County revoking his probation. Houston asserts that his due process rights were violated during the revocation hearing, there was insufficient evidence to revoke his probation, and he received an excessive sentence. Because we find that Houston's due process rights were violated, we reverse the order revoking his probation and remand the cause for further proceedings.
In March 2017, Houston, age 15, pled no contest to one count of burglary in the district court. He was sentenced to 5 years’ probation. In May 2018, the State filed a motion to revoke Houston's probation. It alleged that Houston violated the terms of his probation by engaging in assaultive conduct, failing to regularly attend school, testing positive for marijuana, failing to report to probation, and failing to make his whereabouts known to probation for an 11-day period.
A hearing was held on the State's revocation motion. The State adduced testimony from Abby Kossow, Houston's probation officer. Kossow testified, over Houston's objection, that Houston had been suspended from school on two occasions. He was suspended on the first occasion for inappropriately touching a female student and on the second occasion for leaving school during the day and refusing a drug test when he returned. Kossow also testified that Houston was subjected to drug testing as part of his probation and that he tested positive for marijuana on April 25, 2018. Kossow further informed the court that she was unable to locate Houston from May 12 until May 23 and that he missed a meeting with the probation office on May 22.
Kossow also provided testimony regarding Houston's assaultive conduct over Houston's objections of hearsay, foundation, and the confrontation clause. According to Kossow, Houston's mother contacted law enforcement due to an altercation between Houston and his sister on May 12, 2018, and Houston had kicked in the front door, damaging it. Kossow testified that she discovered Houston was at the Douglas County Youth Center (DCYC) on May 23, after he was arrested for the charges stemming from the incident at his mother's house. On cross-examination, Kossow admitted that those charges were later dismissed. She further admitted that she obtained information about the incident from a police report, Houston's mother, and a law enforcement officer.
Following the hearing, the court sustained the motion, finding that Houston's underlying behavior necessitated that his probation be revoked. It determined that Kossow's hearsay testimony based on conversations with the principal of the school Houston attended was sufficiently reliable and that it was Houston's own actions which led to his being suspended. The court further found that Houston refused a drug test and failed to report his whereabouts from May 12 until May 23, 2018. The court also found that Houston was arrested and placed in the DCYC for criminal conduct. In August 2019, Houston was sentenced to 5 to 6 years’ imprisonment for the underlying offense of burglary. He timely appealed.
Houston assigns, consolidated and restated, that the district court erred in (1) violating his due process right to confront adverse witnesses at the probation revocation hearing, (2) finding clear and convincing evidence he violated his probation while relying on unreliable and unsubstantiated evidence, and (3) imposing an excessive sentence.
The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law. State v. Johnson , 287 Neb. 190, 842 N.W.2d 63 (2014). An appellate court resolves questions of law independently of the lower court's conclusion. Id.
The revocation of probation is a matter entrusted to the discretion of a trial court. Id. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Hunt , 299 Neb. 573, 909 N.W.2d 363 (2018).
The district court sustained the State's motion to revoke Houston's probation on the following grounds: Houston engaged in assaultive conduct, failed to regularly attend school, tested positive for marijuana, failed to report to probation, and failed to make his whereabouts known to probation for an 11-day period. On appeal, Houston argues that it was improper to revoke his probation on any basis other than assaultive conduct, because the other allegations were noncriminal violations or substance abuse violations of his probation order for which he had not served custodial sanctions.
For a probationer convicted of a felony, revocation proceedings may only be instituted in response to a substance abuse or noncriminal violation if the probationer has served 90 days of cumulative custodial sanctions during the prison term. Neb. Rev. Stat. § 29-2267(3) (Reissue 2016). Houston asserts, and the State agrees, that he did not receive 90 days of custodial sanctions for his noncriminal or substance abuse violations. Thus, the district court abused its discretion in revoking Houston's probation for failing to regularly attend school, testing positive for marijuana, failing to report to probation, and failing to make his whereabouts known to probation for an 11-day period.
The only remaining ground on which the court could have revoked Houston's probation is for engaging in assaultive conduct. Houston argues that the court violated his due process rights by admitting hearsay testimony and denying his right to confront adverse witnesses at the revocation hearing. Further, he asserts that the State failed to present clear and convincing evidence he engaged in assaultive conduct. We agree.
Section 29-2267 provides, in relevant part, that during probation revocation proceedings, the probationer shall have the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel. See, also, State v. Johnson , 287 Neb. 190, 842 N.W.2d 63 (2014). Relying on U.S. Supreme Court cases, the Nebraska Supreme Court has described the minimum due process protections required at a probation revocation hearing as follows:
State v. Johnson , 287 Neb. at 199-200, 842 N.W.2d at 71, quoting State v. Shambley , 281 Neb. 317, 795 N.W.2d 884 (2011).
The Nebraska Supreme Court has clearly stated that the Sixth Amendment right to confrontation and the Nebraska Evidence Rules do not apply to probation revocation proceedings. See State v. Johnson, supra. Although the Nebraska Evidence Rules do not apply, the courts nevertheless take guidance from them and the admission of evidence at a probation revocation hearing is not limitless. See id. Absent a showing of good cause, a probationer has the right to confront adverse witnesses with personal knowledge of the evidence upon which the termination or revocation is based. See State v. Shambley, supra . It is inadvisable for a court to rely solely on unsubstantiated hearsay to revoke probation. See State v. Johnson, supra.
Here, the sole witness at the hearing for Houston's alleged assaultive conduct was Kossow. The extent of her testimony on this issue was that Houston's mother informed her Houston engaged in assaultive conduct toward his sister, "something related to a Gatorade bottle," and kicked in the front door to their home to gain entry; she found Houston at the DCYC; and she reviewed the police report following the incident and had a conversation with a law enforcement officer. Thus, Kossow was relying on unsubstantiated hearsay and neither witnesses nor documents were offered to support her testimony. Prior to Kossow's testimony, Houston objected on the grounds that her testimony was hearsay, lacked foundation, and denied his right to confront witnesses. The district court overruled his objections and allowed Kossow to testify.
The record does not indicate that the district court made a finding of good cause as to why Houston was not permitted to confront the law enforcement officers who arrested him for the assaultive conduct, nor his mother or sister who witnessed his assaultive conduct. Thus, the district court violated Houston's due process rights in that he was not permitted to...
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