Hampton v. State
| Decision Date | 23 February 2009 |
| Docket Number | No. RE-2007-555.,RE-2007-555. |
| Citation | 2009 OK CR 4,203 P.3d 179 |
| Parties | Jerry Lynn HAMPTON, Appellant v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶ 1 In the District Court of Pushmataha County, Case No. CF-2002-119, Appellant, Jerry Lynn Hampton, entered a plea of nolo contendere to Count 1, Unlawful Possession of Controlled Drug (Methamphetamine); Count 2, Unlawful Possession of Controlled Drug (Methamphetamine); and Count 3, Unlawful Possession of Paraphernalia. The Honorable Lowell Burgess, Jr., Associate District Judge, on March 7, 2003, sentenced Appellant to concurrent terms of five (5) years imprisonment on Counts 1 and 2 and to one (1) year on Count 3. Pursuant to a plea agreement, Judge Burgess suspended execution of these sentences conditioned upon written rules of probation that required Appellant, among other things, not to possess illegal drugs; not to visit places where alcohol or illegal drugs are unlawfully sold, dispensed, or used; and not to violate any city, state, or federal law.
¶ 2 On March 21, 2007, the State filed an Application to Revoke Suspended Sentence on Counts 1 and 2. This Application alleged that Appellant had violated the above conditions of his probation by having committed the offenses of Attempted Manufacture of a Controlled Dangerous Substance; Unlawful Cultivation of Marijuana; and Unlawful Possession of Controlled Dangerous Substance, all as alleged in Pushmataha District Court Case No. CF-2007-35. The evidentiary hearing on the Application to Revoke was joined with the preliminary hearing on Appellant's new charges. Following that hearing, the Honorable Gary L. Brock, Special Judge, on May 16, 2007, found Appellant violated his probation and revoked a three (3) year, six (6) month portion of the suspension order.
¶ 3 Appellant now appeals the revocation order and raises the following claims of error:
1. The District Court revoked Appellant's suspended sentence based on hearsay evidence, thereby depriving Appellant of his right of confrontation.
2. The evidence was insufficient to show Appellant violated the terms and conditions of his probation.
¶ 4 The State's only witness at the hearing was a Drug Task Force agent who had executed a search warrant on a five-acre parcel of land where there was situated a house, two sheds, and two camper trailers. An individual named Roger Payne and his common-law wife lived in the house. When the search was performed, the trailer closest to the house was in the front yard about fifty feet away from the house, and the agent located Appellant inside this trailer. About twenty feet from that same trailer, between it and the house, sat one of the sheds. This shed had a doorway but with no door attached.
¶ 5 The agent testified that inside this open shed was a "mother jar" containing liquid that the OSBI found to be positive for methamphetamine. Outside that same shed, about five feet from its doorway facing the trailer, was a "pump up sprayer that would be converted into an HTL generator to gas off methamphetamine." (Tr. 12.) Poured out onto the ground by this shed was a salt and acid mixture, about 17 to 18 feet from the trailer. The agent testified that there was also found "several boxes of matches, where they ripped the striker plates off" containing red phosphorous. (Tr. 12.) In front of the trailer were "lithium batteries that had been taken apart." (Tr. 12-13.) The agent indicated that all of these items contained materials that could be used in the making of methamphetamine.
¶ 6 Additionally, the agent noted, "In the shed was some tin foil with methamphetamine residue, appeared to be used to smoke methamphetamine with." (Tr. 17.) On the east side of the house, some potted marijuana plants were growing. The search of the house revealed some pipes, marijuana cigarettes, and drug paraphernalia; however, there were no documents or other items within the house showing that Appellant had ever been inside, but one of Appellant's adult sons and the son's girlfriend were found in the house at the time the search warrant was executed. Discovered in the second camper trailer during the warrant search, was another adult son of Appellant's.
¶ 7 The hearsay evidence about which Appellant complains concerned Appellant's alleged purchase of a large quantity of matches from a local convenience store. While conducting the investigation that led up to his obtaining the search warrant, the agent was told by store personnel "that a guy by the name of Slick has been coming in with Roger Payne purchasing matches." (Tr. 5-6.) Appellant objected to this statement as hearsay. Appellant further argued that if the trial court were to consider this hearsay statement, it would deprive Appellant of his right of confrontation.
¶ 8 Upon being told by store personnel about the purchase of these matches, the agent watched a video made by the store's surveillance camera revealing Appellant to be the individual making the purchase from the store. When asked on cross-examination how many boxes of matches Appellant bought, the agent stated he did not know how many, but just that they were in "big boxes ... large quantity boxes," and that he could not tell what was in the boxes because "[t]hey are wrapped up in paper" and the video tape was "really blurry." (Tr. 21.)
¶ 9 In making its revocation decision, the District Court relied upon the out-of-court statement by store personnel to conclude that Appellant indeed purchased matches, finding it could consider the statement "because of the provisions allowing hearsay in revocation hearings." (5-15-07 Tr. 3.) The District Court therefore concluded that Appellant violated his probation by having attempted to manufacture a controlled dangerous substance and by possessing methamphetamine. The District Court further concluded, however, that it could not consider the store personnel statement for purposes of the preliminary hearing because it was hearsay. Believing that without the hearsay statement there was insufficient evidence of probable cause, the District Court declined to hold Appellant for trial on the new charges.
¶ 10 In appeals from revocation proceedings, we review for any abuse of discretion in the trial court's evidentiary rulings that are preserved on appeal.1 Additionally, when properly raised on appeal, we determine if statutory and constitutional requirements have been satisfied.2
¶ 11 Procedures for revoking a suspended sentence are established in 22 O.S.Supp.2008, § 991b.3 That statute requires the State among other things, to present "competent evidence justifying the revocation of the suspended sentence."4 Additionally, the statute provides that a defendant "being considered for revocation at the hearing shall have the right to be represented by counsel, to present competent evidence in his or her own behalf and to be confronted by the witnesses against the defendant."5 These rights and requirements predate this state's 1978 adoption of the Oklahoma Evidence Code, and they have been a part of Section 991b since it was first enacted in 1969.6
¶ 12 Revocation procedures are also guided by two leading U.S. Supreme Court cases: Morrissey v. Brewer7 and Gagnon v. Scarpelli.8 In 1972, Morrissey established minimum due process standards for terminating parole,9 and in the following year, Scarpelli adopted those same standards for terminating individuals from probation under a suspended sentence.10 One of the minimum due process standards identified by the Supreme Court in those decisions was "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."11
¶ 13 This Court now concludes that the statutory right "to be confronted by the witnesses against the defendant," granted to probationers under Section 991b, is of no greater scope than that right of confrontation and cross-examination existing under Morrissey and Scarpelli. This conclusion finds support from this Court's recent decision in Wortham v. State.12
¶ 14 In Wortham, the Court found that a probationer's right of confrontation is not the same as that granted defendants under the Sixth Amendment of the U.S. Constitution in criminal prosecutions, but it is instead a right that arises from due process considerations.13 Accordingly, a probationer's right of confrontation is subject to "relaxed due process standards" that may
permit introduction of evidence such as "letters, affidavits, and other material that would not be admissible in an adversary criminal trial," Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604, and do not "prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 1760 n. 5, 36 L.Ed.2d 656 (1973).
Gilbert v. State, 1988 OK CR 283, ¶ 10, 765 P.2d 807, 809.
¶ 15 It therefore follows that a probationer's right of confrontation and cross-examination is not absolute, and that there are instances in revocation proceedings when a trial court, consistent with due process, can allow evidence of an out-of-court statement without the declarant being present for cross-examination. This Court, however, has not published a decision precisely addressing...
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