People v. Thomas

• Decision Date: 10 May 1979
• Docket Number: No. 78-807,78-807
• Citation: 42 Colo.App. 441,599 P.2d 957
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald THOMAS, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 957

599 P.2d 957

42 Colo.App. 441

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald THOMAS, Defendant-Appellant.

No. 78-807.

Colorado Court of Appeals, Div. III.

May 10, 1979.

Rehearings Denied June 14, 1979.

Certiorari Denied Aug. 27, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colo. State Public Defender, Denver, Richard D. Irvin, Deputy State Public Defender, Boulder, for defendant-appellant.

BERMAN, Judge.

Defendant pled guilty to third-degree sexual assault, and was sentenced to ninety days imprisonment and placed on probation for two years. He brings this appeal from an order of the trial court revoking his probation. We reverse and remand for a new hearing.

The petition to revoke defendant's probation alleged that defendant had violated the terms of his probation by stealing forty dollars from a Denver Post newspaper rack. The only witness at the hearing on the petition was defendant's probation officer. He testified that defendant was employed by a Denver Post distributor in Longmont, Colorado and that during his probation defendant had been living at his employer's home. The probation officer further testified that he had been advised by defendant's employer, in a telephone conversation, that defendant had stolen forty dollars from a newspaper rack and had admitted taking the forty dollars. Defendant presented no evidence and his objections to the hearsay nature of the probation officer's testimony were overruled by the trial court. There was no evidence as to why the employer was not at the hearing.

Defendant contends here that the hearsay testimony of the probation officer was insufficient as a matter of law to sustain the revocation of his probation, and that his right to due process was violated because he was not afforded an opportunity to confront and cross-examine his employer. We agree with the latter contention.

A probationer at a revocation hearing is entitled to certain minimum requirements of due process, including " 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds Good cause for not allowing confrontation) . . . .' " People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974) (emphasis added). See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In this case, the probation officer had no personal knowledge of the alleged crime, and therefore, the adverse witness was, in effect, defendant's employer. See Hill v. State, Ala.App., 350 So.2d 716 (1977). Since defendant was unable to confront and cross-examine his employer, we must determine whether the "unless" clause, quoted above, is applicable.

The trial court made no Express finding as to good cause for not allowing confrontation, and, even assuming, Arguendo, that an express finding is not required, See State v. Brown, 23 Ariz.App. 225, 532 P.2d 167, Aff'd, 112 Ariz. 29, 536 P.2d 1047 (1975), there is no evidence in the record which would support an Implied finding of good cause. As noted above, there was no evidence presented as to why defendant's employer was not at the hearing. See State v. Miller, 42 Ohio St.2d 102, 326 N.E.2d 259 (1975).

Nor do we agree with the People's contention that the hearsay was so reliable as to provide the requisite "good cause." The evidence was not within any recognized hearsay exception, and, given the lack of evidence as to why defendant's employer was not present, we cannot say that "the circumstances warrant(ed) its use." State v. Brown, supra. The cases relied on by the People are inapplicable because they all involve the use of reliable documents such as criminal court records and laboratory reports. None of these "conventional substitutes for live testimony," Gagnon v. Scarpelli, supra, were used here.

We...