Mapp v. State, 95-291

• Decision Date: 17 December 1996
• Docket Number: No. 95-291,95-291
• Citation: 929 P.2d 1222
• Parties: Milton MAPP, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1222

929 P.2d 1222

Milton MAPP, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-291.

Supreme Court of Wyoming.

Dec. 17, 1996.

Sylvia L. Hackl, State Public Defender; and Deborah Cornia, Appellate Counsel, for appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, for appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

TAYLOR, Chief Justice.

After appellant was brought before the district court for a second time on allegations that he had violated a condition of his probation, the district court revoked his probation and transferred him to the Wyoming State Penitentiary to serve a term of not less than eighteen months nor more than twenty-four months with credit for time served. Appellant seeks review of the district court's decision, contending that the revocation was based solely on hearsay evidence and, therefore, the evidence was insufficient.

We affirm the district court's decision.

I. ISSUES

The parties present a single issue for review. Appellant, Milton Mapp (Mapp), phrases the issue as follows:

Did the district court err when it found that sufficient evidence existed to revoke the appellant's probation?

The State of Wyoming, as appellee, responds as follows:

Whether the district court properly revoked appellant's probation?

II. FACTS

On April 13, 1994, a Casper, Wyoming police officer nearly collided with a car driven by Mapp, who had swerved into the oncoming traffic lane occupied by the police officer. The police officer's attempt to stop the vehicle evolved into a high speed chase which transformed into a foot race when Mapp abandoned his car and continued to elude the police officer. When the police officer caught Mapp and attempted to place him in custody, Mapp struck the police officer in the face and tried to grab the police officer's weapon from its holster. Mapp was charged with felony interference with a police officer, to which he pled guilty on September 16, 1994.

Pursuant to W.R.Cr.P. 32(a), a presentence investigation report filed with the court chronicled an extensive history of alcohol-related offenses and numerous contacts with the police, including several prior convictions. The report also reflected that Mapp had been receiving treatment for a bi-polar disorder for ten years, including medication which must be taken with regularity to control that disorder. However, the report stated that Mapp denied having an alcohol problem and admitted he had failed to take his medication during the time he committed the present offense due to his belief that he could do without it. The report concluded that "this individual is a walking time bomb."

At the December sentencing hearing, the district court ordered Mapp placed on probation for a term of four years with the conditions, among others, that he complete a counseling program and that he regularly take his medication. Before the district court's order was reduced to writing, however, the State sought a bench warrant for Mapp's arrest and probation revocation based on newly filed property destruction charges arising from an incident on January 2, 1995.

On that day, Mapp entered a Mini-Mart store in Casper in an agitated state and began to shout obscenities at the store clerk. When Mapp left the store, he slammed the door causing the window pane to shatter. After receiving a call from the store clerk, the police found Mapp approximately six blocks away from the store. He was walking down the street wearing a sheathed knife, waving his arms and screaming incoherently. At the probation revocation proceeding arising from this incident, Mapp was allowed to remain on probation, but the district court added the condition that he "enter and successfully complete the program at Community Alternatives of Casper ('CAC') * * *."

On July 24, 1995, five months before Mapp's completion of the Community Alternatives of Casper (CAC) program, the State filed another petition for revocation of probation. As grounds for the request, the petition referred to an affidavit signed by Mapp's probation supervisor which stated that Mapp was terminated from CAC due to his failure to take his prescribed medication, therefore making him unmanageable. On August 8, 1995, the State filed an amended petition for revocation alleging that Mapp had been terminated from the CAC program and was, therefore, in violation of a condition of his probation.

At this second revocation hearing, the district court heard testimony from only two witnesses, Mapp's probation supervisor and Mapp. The probation supervisor succinctly testified that Mapp was terminated from CAC prior to his completion of the program. On cross-examination, the defense elicited an admission from the probation supervisor that he had no personal knowledge regarding the allegation in his affidavit that Mapp failed to take medication, but had relied solely on the information in the report from CAC.

Mapp did not deny he was terminated from the program prior to completion, but testified he was wrongfully terminated due to the hostility of a racist CAC employee. Mapp's testimony was less than clear, but apparently the district court was to infer that the matters contained in the report were based on untrue statements provided solely for the purpose of consummating the CAC employee's vendetta against Mapp.

The CAC report, independently filed with the district court, advised that Mapp was "a moderate management challenge" when he entered the program. However, Mapp's behavior deteriorated over time producing a number of incident reports ranging in severity from noncompliance issues to theft and assault. He was twice removed from the CAC residence for stabilization with medication, but the stabilization had limited success. The report stated that upon his return to the program, Mapp soon became "agitated and aggressive * * *." During the second stabilization attempt, CAC contacted the various doctors who had treated Mapp, but each in turn passed responsibility to the next. When Mapp allegedly began refusing his medication upon his return from the second effort to stabilize his behavior, he was terminated from the program and returned to the custody of the Natrona County Sheriff. The report concluded that, "[w]hen appropriately medicated, [Mapp] can be pleasant and productive." Nonetheless, as his behavior deteriorated, he "became a threat to himself and those around him."

When questioned about his behavior at the CAC program, Mapp's testimony was confused. Direct examination elicited his insistence that he had never refused to take medication and that he believed the only reason he was terminated was because of false allegations made by a CAC employee.

Cross-examination of Mapp, however, prompted the following exchange:

Q He describes a couple of times that they had you placed in the county jail for a few days. They say that was to give you your medications; is that correct?

A Yes, I guess--for what reason, I really don't know. I couldn't really say. But I know I was placed in the Natrona County Jail.

Q How many times did that happen?

A Twice.

Q Now, he also described a situation here where he states, quote, "He became violent, throwing a coffee can into the residence manager station, and physically assaulting a female resident."

A No, there was no recollection of that either. That did not happen either. A female resident did approach me in a shouting manner, and we had a shouting match. But she dissipated away. And there was no throwing of any kind of cup. But the person that did probably say that was that Harold.

Q Again, in his report, Mr. Miller states, "He began refusing his medication, and at this time he was placed into custody." Mr. Miller said you refused to take your medications. Refused, sir, not missed, not forgot, refused.

A No. There was no time that I refused the medication at all. My doctor, Dr. Fries was on--was on the--he had family problems, and he wasn't in town. And he told me, before he left, that I had to take my medication from somebody else. And I felt that I didn't want to take those pills, refused them, because I didn't have to take any pills from anyone. Because they didn't prescribe them, the doctor did. And he did. So I did not refuse any medications.

Q So for some period of time you wouldn't take any pills, because Dr. Fries hadn't given them to you?

A No. I would take them. I'm just stating what my doctor stated to me.

At the close of the testimony, Mapp's counsel asserted that the State had failed to show a violation of a condition of probation because there was no evidence, other than the CAC report, that Mapp had not taken his medication. The State countered that its sole burden was to establish that Mapp had not successfully completed the CAC program, which it had done. The district court found that "the defendant did not successfully complete the Community Alternatives program." After further argument, the district court held that "it would be in the best interests of Mr. Mapp and of society that his probation be revoked * * *."

On October 25, 1995, an order was entered revoking probation and sentencing Mapp to a term of not less than eighteen months and not more than twenty-four months at the Wyoming State Penitentiary, with credit for time previously served at the Natrona County Detention Center and CAC. From that order, this timely appeal followed.

III. STANDARD OF REVIEW

A district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record shows a clear abuse of discretion. Gailey v. State, 882 P.2d 888, 891 (Wyo.1994); Kupec v. State, 835 P.2d 359, 362 (Wyo.1992). We review the district court's decision to determine " 'whether or not the court could reasonably conclude as it did.' " Gailey, 882 P.2d at 891 (quoting Martinez v. State, 611...