People v. Rocha

• Decision Date: 27 August 1980
• Docket Number: Docket No. 47132
• Citation: 99 Mich.App. 654,299 N.W.2d 16
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ROCHA, Defendant-Appellant. 99 Mich.App. 654, 299 N.W.2d 16
• Court: Court of Appeal of Michigan — District of US

Page 16

299 N.W.2d 16

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Domingo ROCHA, Defendant-Appellant.

Docket No. 47132.

99 Mich.App. 654, 299 N.W.2d 16

Court of Appeals of Michigan.

Aug. 27, 1980.

Released for Publication Dec. 9, 1980.

[99 MICHAPP 655] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., Paul G. Bruno, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

BASHARA, Judge (after remand).

In 1976, defendant pled guilty and was convicted of possession of heroin, M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was placed on probation. Four months later, his probation was revoked at a probation violation hearing. This Court reversed and remanded because the revocation hearing took place before the trial on the charge leading to the probation revocation. People v. Rocha, 86 Mich.App. 497, 272 N.W.2d 699 (1978).

Subsequent hearings were held in the trial [99 MICHAPP 656] court, resulting in a finding of defendant's guilt on the probation violation charge.

On appeal, defendant first contends that the trial judge erroneously interrogated the witnesses at the revocation hearings.

Probation revocation hearings are not a stage in the proceedings of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), minimum due process requirements for parole violation hearings were set forth. Gagnon, supra, indicated that the same standards apply to both parole and probation violation hearings. All of those criteria have been met in the instant case. Nowhere is there a requirement that a prosecutor must be present at every probation violation hearing.

The only possible question is whether the proceeding was held before a "neutral and detached hearing body". Our review of the record reveals that the defendant suffered no prejudice as a result of the court's interrogation of the witnesses. The trial judge merely asked police witnesses what had transpired, and they narrated the events precipitating the defendant's arrest. There was no evidence of partiality toward the prosecution. So long as there is no evidence of partiality or prejudice, it is not improper for the court to conduct a probation revocation proceeding. However, we must observe that where probation proceedings are contested, it is preferable that the interrogation of the defendant be conducted by the prosecutor, so as to avoid the potential or the appearance of bias.

Defendant also claims that the charge of probation violation was not proven by a preponderance [99 MICHAPP 657] of the evidence. Again, our review of the record shows the claim to be devoid of merit. A trial judge's finding that a probation order has been violated will not be overturned where it is based on verified facts and where the trial judge's exercise of discretion was based on accurate knowledge of the probationer's behavior. People v....