Gowers v. State

• Decision Date: 31 March 2000
• Citation: 766 So.2d 986
• Parties: Jonathan H. GOWERS v. STATE.
• Court: Alabama Court of Criminal Appeals

766 So.2d 986

Jonathan H. GOWERS v. STATE.

CR-99-0344.

Court of Criminal Appeals of Alabama.

March 31, 2000.

Jonathan H. Gowers, appellant, pro se.

Andrew W. Redd, general counsel, and Albert Sim Butler, asst. general counsel, Department of Corrections, for appellee.

COBB, Judge.

Jonathan Gowers appeals from the dismissal of his petition for a writ of habeas corpus. Gowers is a prison inmate charged in a prison disciplinary proceeding with promoting contraband by assisting another inmate in obtaining a .25 caliber pistol, which that inmate then used to take hostages. The prison disciplinary hearing was conducted before a hearing officer on February 19, 1997. The hearing officer found him guilty as charged, and Gowers was ordered to serve 45 days disciplinary segregation. Additionally, Gowers lost all his accrued good time and was removed from good-time status for one year. On September 10, 1999, Gowers filed a petition for a writ of habeas corpus with the Circuit Court of Escambia County, alleging that the disciplinary proceeding failed to comport with due process requirements because, he argued, the finding of guilt was based solely on hearsay testimony. On November 9, 1999, the circuit court dismissed the petition, calling the action frivolous, as that term is defined by the Prison Litigation Reform Act and ordered Gowers to pay a $140 filing fee. This appeal follows.

On appeal, Gowers restates his argument that he was denied the minimum due process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when the disciplinary hearing officer made a decision based solely on hearsay testimony. We first note that the loss of good time constitutes a denial of a liberty interest that triggers the due process requirements established in Wolff v. McDonnell. Summerford v. State, 466 So.2d 182 (Ala.Crim. App.1985)

. In discussing the due process requirements of a prison disciplinary hearing, this court has stated:

"Due process requires that the decision of a state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State [522 So.2d 337 (Ala.Crim.App.1988)].

Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Crim.App.1989), rev'd in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however, in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State, [supra]."

Bridges v. State, 636 So.2d 696, 697 (Ala. Crim.App.1993).

In this case, the sole evidence upon which the finding of guilt was based was the hearsay statement of the first-shift correctional sergeant, who testified that he had been informed through an "I & I investigation" that Gowers had assisted another inmate in getting a .25 caliber pistol inside the prison. Interestingly, we note from a copy of the institutional incident report filed by the first-shift sergeant and appended by the State to its response to the petition, that he had been informed of the investigation results by a third person:

"Sgt. W.B., First Shift Sergeant, was notified by Captain D.E. that inmate Jonathan Gowers [was about to be indicted for promoting contraband.] ... This information was relayed to Captain D.E. from I & I."

(C. 26.) From the disciplinary report, it appears that only the first-shift sergeant testified for the State at the hearing and that the sergeant merely testified as to what he...