Reyes v. State

• Decision Date: 21 September 2006
• Docket Number: No. 01A02-0510-CR-976.,01A02-0510-CR-976.
• Citation: 853 N.E.2d 1278
• Parties: George REYES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

853 N.E.2d 1278

George REYES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 01A02-0510-CR-976.

Court of Appeals of Indiana.

September 21, 2006.

Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Defender

of Indiana, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

George Reyes's ("Reyes") probation was revoked in Adams Circuit Court after he tested positive for marijuana and cocaine use. Reyes was ordered to serve his previously suspended 2070-day sentence. Reyes appeals and raises two issues, which we restate as:

I. Whether the trial court abused its discretion when it admitted an affidavit into evidence where Reyes was denied the opportunity to confront and cross-examine the affiant; and,

II. Whether the evidence is sufficient to support the revocation of Reyes's suspended sentence.

Concluding that good cause existed for denying Reyes's limited right to confrontation and that the evidence is sufficient to support his probation revocation, we affirm.

Facts and Procedural History

On May 15, 1998, Reyes was found guilty of Class B felony aggravated battery. He was sentenced to serve ten years with six years suspended, and ten years probation. As a condition of his probation, Reyes was to refrain from the use of alcoholic beverages, and all forms of drugs and prohibited substances, unless prescribed by a physician. Prior to the proceedings relevant to this appeal, Reyes violated his probation on three occasions either by consuming alcoholic beverages or using marijuana.

On January 18, 2005, Reyes submitted a urine sample that tested positive for marijuana use. On February 8, 2005, the State filed a "Violation of Probation Petition." A hearing was held on the State's petition on August 5, 2005. Reyes admitted to the allegation contained in the State's petition, and therefore, the trial court concluded that Reyes violated the terms of his probation by testing positive for marijuana. Appellant's App. p. 143. The court then issued the following order:

The Court revokes the entirety of the defendant's remaining 2,070 days of suspended sentence to be served at the Indiana Department of Correction, but the Court will suspended [sic] all but 1,035 days if the defendant meets the following requirement. The Defendant is to undergo [] urinalysis testing this date. The defendant is further to be retested on August 15, 2005. If the defendant test [sic] positive for any new drugs or his test comes back higher than the first testing, that was taken on August 5, 2005, the defendant shall serve his entire suspended sentence.

Id.

On August 23, 2005, Reyes's probation officer reported that Reyes tested positive for cocaine use as a result of the urine samples taken on August 5 and 16, 2005. A hearing was then held on September 8, 2005. At the hearing, the State introduced into evidence the urinalysis test results and the affidavits of Jeff Retz ("Retz"), the scientific director at Witham Memorial Hospital Toxicology Laboratory. With regard to both urinalysis tests, Retz concluded that Reyes had used cocaine within "72 hours prior to collection." Appellant's App. pp. 155, 162. Retz's affidavits were admitted over Reyes's objection. The trial court then issued an amended revocation order and concluded The Court finds that the defendant consumed cocaine between the period of 8-5-2005 and 8-15-2005 wherein defendant sought conditional liberty from starting his sentence under the agreement that if he did not test positive for drug usage that the defendant would only be ordered to serve 1035 days of the remaining 2070 days of defendant's suspended sentence. Inasmuch as the defendant has tested positive for drug usage the Court now amends its order of August 5, 2005 and revokes the entire 2,070 days of the defendant's suspended sentence to be served at the Indiana Department of Correction.

Appellant's App. p. 169. Reyes now appeals.

I. Admission of Retz's Affidavits

Reyes argues that the trial court abused its discretion when it admitted Retz's affidavits because Reyes was not given the opportunity to confront and cross-examine Retz. In response, the State asserts that Retz's affidavits bore substantial indicia of reliability and such reliability insures that admission of the affidavits did not violate Reyes's right to confrontation.

"It is well settled that probationers are not entitled to the full array of constitutional rights afforded defendants at trial." Cox v. State, 706 N.E.2d 547, 549 (Ind.1999) (citing Gagnon v. Scarpelli, 411 U.S. 778, 783, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Isaac v. State, 605 N.E.2d 144, 148 (Ind.1992)). However, the Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Id. There are certain due process rights that inure to a probationer at a revocation hearing, which includes "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey, 408 U.S. at 489, 92 S.Ct. 2593; see also Cox, 706 N.E.2d at 549.

"At the same time, a probation . . . revocation hearing is not to be equated with an adversarial criminal proceeding." Cox, 706 N.E.2d at 550. Revocation of probation is a narrow inquiry and its procedures are more flexible, which allows "the court to exercise its inherent power to enforce obedience to its lawful orders." Id. Due to the flexibility of probation revocation procedures, strict rules of evidence do not apply. Id.; see also Ind. Evidence Rule 101(c) (2006). Moreover, during probation revocation hearings, "judges may consider any relevant evidence bearing some substantial indicia of reliability." Cox, 706 N.E.2d at 551.

Reyes concedes that the lab reports establishing that he had cocaine metabolites in his urine were properly admitted. See Br. of Appellant at 9. See also Cox, 706 N.E.2d at 550 n. 8 ("We find that the use in a probation revocation hearing of a regular urinalysis report prepared by a company whose professional business is to conduct such tests does not infringe upon a probationer's confrontation rights."); Carter v. State, 706 N.E.2d 552, 554 (Ind.1999) ("Urinalysis technology is hardly novel and has become a conventional means of drug-testing, the results of which have been deemed reliable in Indiana courts."). Nevertheless, Reyes argues that the admission of Retz's affidavit containing his opinion that Reyes used cocaine within seventy-two hours of the collection of his urine sample violated his right to confront and cross-examine adverse witnesses.

In Morrissey, the United States Supreme Court held that probationers have the right to confront and cross-examine adverse witnesses during revocation hearings "unless the hearing officer specifically finds good cause for not allowing confrontation."¹ 408 U.S. at 489, 92 S.Ct. 2593. However, the Court also stated that revocation proceedings are narrow inquiries and "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. Moreover, in commenting on the right to confront and cross-examine adverse witnesses since Morrissey, the Court has stated, "we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." Gagnon, 411 U.S. at 782, 93 S.Ct. 1756.

In Cox, our supreme court discussed three approaches taken by state and federal courts in addressing the "question of when hearsay evidence introduced at a probation revocation hearing violates the probationer's confrontation rights[.]" 706 N.E.2d at 550 n. 8. However, the court declined to adopt a particular approach in Cox because it was unnecessary to the resolution of the case. Id. Because this issue is one of first impression in Indiana, we turn to cases from other jurisdictions for guidance.

The majority of federal circuits have adopted a balancing test requiring the trial court "to weigh the confrontation interest of a parolee/probationer against the interests of the government." See U.S. v. Kelley, 446 F.3d 688, 692 n. 4 (7th Cir.2006) (citing U.S. v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005); Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir.1999); U.S. v. Martin, 382 F.3d 840, 844 (8th Cir.2004); U.S. v. Hall, 419 F.3d 980, 986 (9th Cir.2005); U.S. v. Frazier, 26 F.3d 110, 114 (11th Cir.1994)).² Some courts have also concluded that the trial court must make an explicit finding of good cause before admission of hearsay at a revocation hearing. Id. (citing Barnes, 184 F.3d at 454); U.S v. Penn, 721 F.2d 762, 764 (11th Cir.1983).³

In contrast, the Fourth, Seventh and Tenth Circuits have concluded that the need to show good cause vanishes when the hearsay evidence "bears substantial guarantees of trust-worthiness[.]"⁴ Kelley, 446 F.3d at 692 n. 4; see also U.S. v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982); Kell v. U.S. Parole Comm'n, 26 F.3d 1016, 1020 (10th Cir.1994). Similarly, the Court of Appeals for the District of Columbia has concluded, "[a]ll that is required before admitting evidence at a probation revocation hearing is a determination that the proffered evidence is reliable . . . [and that determination] satisfies the requirements of the confrontation clause." Harris v. U.S., 612 A.2d 198, 201-02 (D.C. 1992).

Our judgment is that the balancing test is the best approach.⁵ Under this test, there are generally two major considerations: the reliability of the challenged hearsay testimony and the government's reason for declining to produce the...