Carson, In re
| Citation | 789 S.W.2d 495 |
| Decision Date | 22 February 1990 |
| Docket Number | No. 16804,16804 |
| Parties | In re William E. CARSON, Jr. William E. CARSON, Jr., Petitioner, v. William J. PIERCE, Sheriff of Jasper County, Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
William J. Fleischaker, Sylvia K. Byrnes-Ales, Roberts, Fleischaker & Williams, Joplin, for petitioner.
David C. Dally, Pros. Atty., Tim A. Wynes, Asst. Pros. Atty., Joplin, for respondent.
This is an original proceeding in habeas corpus pursuant to Rule 91.01, et seq.
Petitioner Carson is presently being held in the custody of the respondent sheriff awaiting transport to the Department of Corrections to serve a ten-year sentence. In 1989, Carson pled guilty in the Circuit Court of Jasper County to the offense of selling a controlled substance, marijuana. Following a presentence investigation, Carson was sentenced to confinement by the Department of Corrections for a term of ten years. Execution of that sentence was suspended and probation was granted for five years on certain prescribed terms and conditions of probation.
A probation violation hearing was held February 1, 1990. The trial court found that petitioner had used cocaine, thereby violating one of his conditions of probation. Carson's probation was revoked.
Petitioner asserts that his probation violation hearing was constitutionally flawed and that he is being illegally restrained.
For the reasons hereafter stated, this court finds that petitioner's probation violation hearing did not afford petitioner the minimum standards of due process to which he is entitled. Petitioner is, therefore, illegally restrained by the respondent sheriff. Order should enter, forthwith, for petitioner's discharge.
The state presented no testimony at the probation violation hearing. The only evidence presented was a violation report dated November 3, 1989, with an attached laboratory report from Upshur Laboratories. The violation report with the attached laboratory report was admitted in evidence over the objection of the defendant (the petitioner in this case).
The violation report alleged that Carson had violated his probation, "by testing positive for [c]ocaine on a routine drug screen conducted on a urine sample provided by Carson on 10-23-89." The violation report stated, as "Particulars of Violation," that a "report from Upshur Laboratories was returned indicating that '[e]vidence was found, by the screening procedures used, to support the presence of the following: [c]ocaine, [c]onfirmed [p]ositive.' " The only statement on the laboratory report was the one quoted in the violation report, viz., that "EVIDENCE WAS FOUND, BY THE SCREENING PROCEDURES USED, TO SUPPORT THE PRESENCE OF THE FOLLOWING: COCAINE CONFIRMED POSITIVE." The laboratory report bears no signature of any person presumably in a position of responsibility 1 and has the appearance of a report which "could be merely the product of some home computer printer." 2 It does not describe any particular type of test as having been performed nor does it provide any scale or objective basis for its conclusion. The attached laboratory report, on its face, lacks any indicia of reliability. Petitioner objected that the report was hearsay, that it violated his right to confrontation, and that it denied his right to due process of law.
The state offered no other evidence. Petitioner testified at the hearing and denied cocaine "or any other type of illicit drug" use. The only other witness at the probation violation hearing was petitioner's mother. Her testimony was limited to describing the type of assistance she would provide if petitioner was continued on probation.
Petitioner complains that he was denied his right to confront and cross-examine his accusers, specifically, the probation officer who prepared the violation report and any laboratory personnel who performed tests or otherwise prepared and submitted the laboratory report. He contends that the procedure followed by the trial court in the probation violation hearing resulted in his loss of liberty without being afforded minimal standards of due process of law.
Missouri cases identify certain fundamental rights to which a probationer is entitled in a probation violation case. In Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974), the Eastern District applied the principles announced by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), to a Missouri probation violation case. Following a comprehensive review of the mandates of Morrissey and Gagnon, the Eastern District concluded that minimal standards of due process require that a probationer accused...
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In re Interest of T.D.S.
... ... D.S.H. , 562 S.W.3d at 371. Appellant also argues certification hearings are similar to probation revocation hearings, where applicable due process rights forbid reliance upon hearsay to revoke probation. In re Carson , 789 S.W.2d 495, 495 (Mo. App. S.D. 1990). Appellant urges the minimal due process required at juvenile certification proceedings "should require more" than these other proceedings. The State does not dispute Pugh's testimony contained hearsay. The State instead asserts juveniles have no right to ... ...
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State ex rel. Mack v. Purkett, 74036
... ... Petitioner relies primarily on In re Carson, 789 S.W.2d 495 (Mo.App.1990). There the Missouri Court of Appeals, Southern District, was confronted with a record not dissimilar from that presented here. A judicial probation had been revoked based solely on a written probation violation report and an unsigned laboratory report indicating ... ...