Bryce v. State

• Citation: 545 N.E.2d 1094
• Decision Date: 30 October 1989
• Docket Number: No. 49A04-8903-CR-86,49A04-8903-CR-86
• Parties: Thomas S. BRYCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1094

545 N.E.2d 1094

Thomas S. BRYCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49A04-8903-CR-86.

Court of Appeals of Indiana Fourth District.

Oct. 30, 1989.

David R. Hennessy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

CHEZEM, Presiding Judge.

Statement of the Case

Defendant, Thomas Bryce, appeals the revocation of his suspended sentence for possession of marijuana, a Class A misdemeanor. We affirm.

Issues

I. Whether Bryce was denied due process because either he did not receive, or the record does not reflect that he received, written notice of his probation violation.

II. Whether the trial court erred in admitting State's Exhibits one, a compilation of test results, and two, a report of test results, under the business record exception to the hearsay rule.

III. Whether the trial court erred in revoking Bryce's probation because of insufficient evidence.

Facts

On September 10, 1986, Bryce was charged with possession of cocaine, a Class D felony, and possession of marijuana, a Class A misdemeanor. On October 27, 1987, Bryce pleaded guilty to the latter offense; his sentence included a 365 day suspended sentence, one year of probation, alcohol and drug treatment, and a seven dollar fine.

The written probation order, in part, contained the following conditions:

You are not to commit another criminal offense. You are to participate in an alcohol, drug treatment, or education program ...

The written order containing the conditions of probation was stamped with Judge Cordingley's signature stamp beside the date "10-27, 1987." Bryce's signature was below the judge's.

A violation of probation hearing was held September 23, 1988. The record does not reflect whether Bryce received written notice of the probation violation.

Bryce's probation officer, Tina Cordova, informed the court that Bryce was in violation of a condition of probation "by being unsuccessfully terminated from drug treatment." The specific reason defendant was unsuccessfully terminated was that his urine tested positive for cocaine on April 5, 1988. At the conclusion of the hearing, the judge revoked Bryce's probation and sentenced him to 365 days in jail.

On December 30, 1988, Bryce's amended belated motion to correct error was denied.

Discussion and Decision

I

Bryce first contends that he did not receive due process of law, as guaranteed by the Fourteenth Amendment of the United States Constitution, because the record does not contain a written notice of his probation violation. Bryce correctly stated that the record does not reflect that a written notice was provided to Bryce; no evidence was presented to show that Bryce did or did not receive written notice. Bryce was also correct to point out that Black v. Romano (1985), 471 U.S. 606, 105 S.Ct. 2254, 85 L.E.2d 636, holds that a "probationer is entitled to written notice of the claimed violations of his probation." supra, 105 S.Ct. at 2258.

Constitutional errors are not necessarily fundamental errors and therefore may be waived if not properly preserved for appeal. Fundamental error is error such that, if not rectified, would be a denial of fundamental due process. Foster v. State (1985), Ind., 484 N.E.2d 965, 967.

The record reflects that Bryce appeared with counsel at the probation violation hearing; thus, it is apparent that he received actual notice of the hearing. Therefore, even though he may not have received written notice, he was not denied fundamental due process. Bryce did not object to the alleged lack of written notice at the hearing; the first time Bryce complained of the lack of written notice was in his belated motion to correct error. He, therefore, failed to preserve this issue for appeal, and it is waived. Ind. Rules of Trial Procedure, Trial Rule 59(D)(1); Boles v. State (1975), 163 Ind.App. 196, 322 N.E.2d 722, 725.

II

Bryce next contends that State's exhibits one and two should not have been admitted at his probation violation hearing over his objections. He argues that the exhibits are hearsay, and, if the business records exception to hearsay applies, a proper foundation was not established to admit the exhibits. Bryce made timely objections to both exhibits; however, he failed to provide a basis for his objection to exhibit two. It appears that defense counsel was interrupted while attempting to provide a basis for the objection, but because he neither completed his objection nor can we, by speculation, complete his objection now, it is waived. Boles, 322 N.E.2d at 725.

State's exhibit one is a photocopy of a document retrieved from a microfiche system and consists of a "compilation of all the testing results up to a copy of the final report." The test results showed the presence of illicit drugs in Bryce's urine on two separate occasions. State's exhibit two consists of photocopies of the results of testing on April 6, 1989 and July 9, 1989.

The supervisor of the Department of Toxicology, Christie Zurface, testified regarding State's exhibit one. When asked whether she was the person who actually tested Bryce's urine, Ms. Zurface answered, "No, I am the supervisor of the department and I sign off on the results and review the results of those tests that my technicians have performed." She also stated that she "reviewed" the report produced on Bryce's urine testing and that it was "in order." She then identified a copy of the report, State's exhibit number one, noting that the original was sent to Fall Creek Counseling. When asked, Ms. Zurface testified that she was not the custodian of this record.

As offered, State's exhibit one is hearsay: it was a written out-of-court statement offered to prove the truth of the matter asserted therein. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, 484. However, it might have been admissible under the business records exception to hearsay had a proper foundation been laid. Smith v. State (1983), Ind., 455 N.E.2d 606, explains the requirements for a business records foundation:

1) The records offered must have been the original entries;

2) They must have been made in the regular course of business at or near the time of the event recorded;

3) The facts must have been within the first hand knowledge of someone whose business duty it was to observe and report the facts; and

4) The witness who had knowledge of the facts must be unavailable. (citing Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865.)

Id., at 607.

The record reveals that Ms. Zurface did not create the business record (exhibit one) nor was she the keeper of the records. Also, at trial the State did not discuss whether the keeper of the records was unavailable for trial. However, in its appellate brief, the State argues that the person "who had personal knowledge of the facts was unavailable at trial" because "there is nothing in the exhibits or in the testimony to indicate which technician performed the urine screen." The State then cites Lyons v. State (1987), Ind., 506 N.E.2d 813 to support its position that "identification of the person who has personal knowledge of the facts is unnecessary." In Lyons, the business record sponsor was a witness "who testified he was the keeper of the records ..." Id., at 816. Here, the keeper of the records was not Ms. Zurface, and thus Lyons is inapposite. We find that the State did not lay a proper foundation to admit exhibit one under the business records exception to hearsay; the trial court should not have admitted it into evidence over Bryce's objection.

Similar problems exist for exhibit two: When Ms. Zurface was asked whether she produced the report, she responded that "our laboratory produced the report." It was not shown at trial that Ms. Zurface personally produced this document, and there was no evidence that she was the keeper of the records. However, when Bryce failed to properly object to admission of exhibit two into evidence, he waived the issue for appeal. Boles, 322 N.E.2d at 725.

III

Bryce contends that the trial court erred by revoking his probation. He argues that the urine drug testing was not formally stated on the record at the hearing, that this condition of probation was penal in nature, and that the evidence supporting probation revocation was insufficient.

At the hearing, Bryce failed to timely object to the probation revocation on the basis that the urine drug testing was not formally stated as a condition of probation; therefore, this issue is waived. Boles, at 725. Even if it were not waived, Bryce's argument is without merit. The record reflects that Bryce's attorney stated the conditions of a plea agreement at the hearing, to which it seems the trial court was referring when it pronounced the sentence three pages later:

Plead to the A misdemeanor under 30 marijuana, 365 days suspended, one year probation with alcohol and drug evaluation and if there is any recommendation as to treatment then he has to do so.

The trial court stated the sentence:

... 365 days suspended. Probation one year, probation fee. Alcohol and drug treatment. The other charge is dismissed.

Bryce's argument seems to be that because the trial court did not preface this order with "as a condition of probation ...," Bryce cannot be held to follow it as a condition of probation. We disagree. It is clear, taken in context, that alcohol and drug treatment was a condition of probation.

Bryce admits that the written conditions of probation include drug treatment, but still contends that successful completion of drug treatment or negative urine drug tests were not requirements of probation. Bryce argues that because the trial court did not order urine drug tests, such tests cannot be used to revoke his probation. Instead, Bryce argues, he had only to "participate" in drug treatment, not successfully complete it.

Bryce's argument fails. The trial court is not required...