Fitzpatrick v. State, CA

Citation647 S.W.2d 480,7 Ark.App. 246
Decision Date09 March 1983
Docket NumberNo. CA,CA
PartiesSidney C. FITZPATRICK, Appellant, v. STATE of Arkansas, Appellee. CR 82-126.
CourtCourt of Appeals of Arkansas

Macom, Moorhead, Green & Henry by David G. Henry, Stuttgart, for appellant.

Steve Clark, Atty. Gen., by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Chief Judge.

This is an appeal of an order revoking probation.

On June 2, 1981, appellant pled guilty to a charge of burglary. He was placed on probation for five years subject to several conditions. One condition was that he would obey all federal and state laws, local ordinances, and court orders, and immediately report all arrests to his probation officer.

On April 7, 1982, appellant was arrested and charged with aggravated robbery and theft of property for the armed robbery of a liquor store clerk. Based on those charges, the state filed a petition to revoke his probation.

After a hearing, the trial court revoked the probation and sentenced appellant to a term of twelve years imprisonment on the 1981 conviction. Appellant's first contention is that the trial court erred in allowing the state to introduce testimony concerning a statement made by an alleged accomplice.

A deputy sheriff testified over appellant's objection about a written statement given by Travis Burse, one of the alleged accomplices in the 1982 liquor store robbery. Burse did not appear as a witness at the hearing and consequently did not testify in person. Appellant contends that this testimony was a violation of the hearsay rules and of his constitutional right to confront the witnesses against him.

Arkansas Uniform Evidence Rule 1101(b)(3) provides that the rules do not apply to proceedings for granting or revoking probation. Ark.Stat.Ann. § 28-1001 et seq. (Repl.1979). Relevant evidence which is not admissible at a criminal trial may be admissible at a revocation hearing. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). There is no doubt that the statement of Burse concerning appellant's actions on April 7, 1982, and the details of the commission of the crime alleged on that date constitutes relevant evidence. As to the contention that evidence of the contents of Burse's statement violated appellant's right to confrontation, there are two answers.

First, the issue is raised here for the first time. The only objection in the trial court was that the statement is hearsay and "not admissible in evidence against Mr. Fitzpatrick." The judge's response was that the "rules of evidence just simply do not apply in probation hearings." We do not think this was sufficient to raise the confrontation issue below and, therefore, it need not be considered here. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

In the second place, we do not find anything crucial or devastating disclosed by the references to Burse's statement. The substance of the statement is disclosed by other evidence, particularly the testimony of the appellant himself. Thus, we fail to see how appellant was prejudiced in this regard. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). We do note, however, that he is correct in stating that the trial court made no specific finding of any cause for not allowing confrontation as is required under Ark.Stat.Ann. § 41-1209(3)(a) (Repl.1947). Although we find no error in this case, we think it should be pointed out that the statements about confrontation in Lockett, supra, may well relate only to the situation there involved.

Appellant also contends that the trial court erred in allowing the probation officer to testify as to appellant's statement to him because the probation officer had not warned appellant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Ray Williams, appellant's probation officer, testified that the sheriff called him to report that appellant was in custody on the charge of robbing a liquor store clerk. Williams testified that although appellant was supposed to report his arrest, appellant had not called him. So Williams telephoned appellant at the jail and took a routine statement from him for a probation report. Over appellant's objection, the probation officer testified about the statement appellant gave him over the telephone.

Appellant states that there was no testimony that the probation officer advised appellant of his rights against self-incrimination prior to this custodial interrogation, and that appellant's statement was therefore inadmissible under Miranda v. Arizona, supra. However, Investigator Davidson of the Arkansas State Police testified that he had advised the appellant as to his Miranda rights about a week before Williams talked to him. Appellant argues that this seven-day delay does not satisfy the Miranda rule and relieve the probation officer from the requirement of so advising appellant again before taking his statement.

The Arkansas Supreme Court recognized in Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974), that there has been no previous attempt to set a fixed limit on the interval of time which must elapse before a new warning is necessary. Upton involved the review of a judgment of conviction, here we review a probation revocation proceeding, where fundamental fairness, with an opportunity to be heard is all that is required. Lockett v. State, supra. Although there does not appear to be an Arkansas case directly on point, we note that it has been uniformly held in other jurisdictions that a probationer's statement obtained by probation officers without first advising the probationer of his...

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18 cases
  • Young v. Lockhart, 88-2625
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 29, 1989
    ...(objection on grounds of relevance was not sufficiently specific to preserve objection of remoteness on appeal); Fitzpatrick v. State, 7 Ark.App. 246, 647 S.W.2d 480, 481 (1983) (hearsay objection at trial was not sufficient to preserve confrontation clause objection on Lockhart further arg......
  • State v. Lucero
    • United States
    • Court of Appeals of New Mexico
    • August 21, 1986
    ...). The court had no opportunity to reach the confrontation issue. On that basis, we refuse to find error. See Fitzpatrick v. State, 7 Ark.App. 246, 647 S.W.2d 480 (1983); State v. Weinberger, 665 P.2d 202 (Mont.1983). Contra State v. Sykes, 569 S.W.2d 258 (Mo.App.1978) (admission of co-defe......
  • Palmer v. State
    • United States
    • Arkansas Court of Appeals
    • January 7, 1998
    ...might have been excluded in a traditional criminal trial, such evidence may be admissible at a revocation hearing. Fitzpatrick v. State, 7 Ark.App. 246, 647 S.W.2d 480 (1983) (holding that relevant evidence inadmissible at a criminal trial may be admissible at a revocation Based on these th......
  • Jones v. State, CA CR 10–1041.
    • United States
    • Arkansas Court of Appeals
    • May 4, 2011
    ...the substance of the statement was disclosed by other testimony, specifically by appellant's own testimony. See Fitzpatrick v. State, 7 Ark.App. 246, 647 S.W.2d 480 (1983). Accordingly, we affirm appellant's conviction. Affirmed.VAUGHT, C.J., and HOOFMAN, J., ...
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