State ex rel. Mack v. Purkett, 74036

• Decision Date: 28 February 1992
• Docket Number: No. 74036,74036
• Citation: 825 S.W.2d 851
• Parties: STATE of Missouri ex rel. Maderia MACK, Petitioner, v. James D. PURKETT, Superintendent, Farmington Correctional Center, Respondent.
• Court: Missouri Supreme Court

Page 851

825 S.W.2d 851

STATE of Missouri ex rel. Maderia MACK, Petitioner, v. James D. PURKETT, Superintendent, Farmington Correctional

Center, Respondent.

No. 74036.

Supreme Court of Missouri,

En Banc.

Feb. 28, 1992.

Craig A. Johnston, Columbia, for petitioner.

William L. Webster, Atty. Gen., Michael E. Pritchett, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

Petitioner Maderia Mack seeks a writ of habeas corpus. He has been denied relief by the circuit court and the Missouri Court of Appeals, Eastern District. Petitioner complains of a violation of his constitutional rights in the conduct of a parole violation hearing that deprived him of his liberty. Petitioner is ordered discharged from the effects of the revocation of his parole.

Mack pled guilty to one count of forcible rape and four counts of robbery in the first degree on January 19, 1983. He was sentenced to ten years imprisonment and delivered to the Department of Corrections. On June 8, 1986, Mack was paroled by the Board of Probation and Parole (Board). On about November 1, 1990, a parole violation warrant was issued for Mack's arrest. He was placed in custody in the City of St Louis. Mack waived his right to a preliminary hearing on the parole violation charge and was transferred to the Department of Corrections in Fulton, Missouri. He was provided with a copy of the parole violation report.

A revocation hearing was scheduled for January 4, 1991. Mack and his appointed counsel appeared before the Board. Two charges of parole violation were made: 1) possession of a controlled substance and 2) violation of laws and ordinances. Mack denied he had violated his parole, claimed he had been denied the opportunity to make telephone calls to contact five witnesses, and asked that the arresting officers attend the hearing. Mack was informed that he would be given one telephone call and one stamped envelope and would be given the opportunity to speak further with his attorney. The hearing was continued to January 23, 1991.

On January 23 Mack again was present with his attorney. He again denied the charges and complained that one telephone call was inadequate. He asked again that he be allowed to confront and cross-examine arresting officers. No live witnesses were present. The only evidence before the Board was three parole violation reports. The first two were prepared by a parole officer in St. Louis and the third was prepared by a parole officer at Fulton.

The reports are apparently summaries or extracts from earlier reports by police officers and laboratory reports. The reports give somewhat detailed accounts of Mack's arrest in the City of St. Louis on October 20, 1990, for urinating in public, an ordinance violation, and possession of heroin. The reports also describe Mack's arrest for possession of heroin on October 29, 1990. Also recounted in the violation reports are police laboratory reports concluding that the substances seized from petitioner when he was arrested were found to be heroin. Conspicuously absent are the names of the arresting officers, the author or authors of the laboratory reports, the kind of chemical analysis conducted, and the names of other witnesses who gave information leading to the arrests.

Based entirely on the parole revocation reports, the Board issued an Order of Revocation that stated,

[S]aid charges which warrant revocation are sustained, to wit:

1) LAWS: I will obey all the federal and state laws, municipal and county ordinances. I will report all arrests to my P.O. within 48 hours.

2) DRUGS: I will not have in my possession or use any controlled substance except as prescribed for me by a licensed medical practitioner.

* * * Evidence relied upon for violation [is] from the Violation Reports dated 11/1/90 and 11/13/90.

On June 21, 1991, Mack was sentenced to five years in the Department of Corrections to be served consecutively to his other sentences. This conviction stems from the October 20, 1990, arrest for possession of heroin. Charges were dismissed for the October 29 arrest. The possession of heroin conviction obviously was not before the Board. Mack is now in the custody of the Department of Corrections at Farmington, Missouri.

At the outset the respondent claims that the writ of habeas corpus should be quashed because Mack is now incarcerated for possession of heroin, serving a five-year sentence. Therefore, respondent argues, Mack is not entitled to release. The respondent also concedes that the conviction is currently on appeal. A convicted defendant is entitled to conditional release pending appeal. Rule 30.16. But for the parole revocation, petitioner would be entitled to conditional release. The fact that the prisoner is not entitled to absolute release does not provide a basis for denying relief by way of habeas corpus. It is sufficient that he claims denial of a substantial liberty interest. McIntosh v. Haynes, 545 S.W.2d 647, 652 (Mo. banc 1977).

Respondent also argues that the writ should be quashed because of petitioner's failure to file a reply to the respondent's return. Initially this Court issued an order to show cause why a writ of habeas corpus should not issue. On August 14, 1991, a response was filed. On September 6, 1991, petitioner filed a "denial" and "traverse" to the response. The Court then issued a writ of habeas corpus requiring a return. The return was filed on October 10, 1991. On November 25, 1991, Mack filed a pro se document seeking appointment of counsel and "objecting to" the return. Counsel was then appointed. Generally, in habeas corpus "the issues are framed by the return and the traverse by way of reply." Abel v. Wyrick, 574 S.W.2d 411, 415 n. 1 (Mo. banc 1978). Nevertheless, it is preferable not to dismiss a habeas corpus proceeding on a technical point, especially where a prisoner is without counsel when a pleading was due to be filed and federal constitutional violations are alleged. Petitioner's failure to file a reply to the return, denominated as such, is not fatal. His pleadings, taken together, are adequate to identify the issues in the case.

We turn first to the claim that petitioner was denied the right to due process. The minimum requirements of due process in a final parole revocation hearing include:

a) written notice of the claimed violations of parole;

b) disclosure to the parolee of evidence against him;

c) opportunity to be heard in person and to present witnesses and documentary evidence;

d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);

e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and

f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking the parole.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). The hearing is not to be equated with a criminal prosecution. It should be "flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. "While in some cases there is simply no adequate alternative to live testimony, 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 v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760 n. 5, 36 L.Ed.2d 656 (1973).

The Morrissey court noted that most states have legislation that defines the code of procedure applicable in parole violation proceedings. Missouri has not adopted a specific procedure applicable to parole violation hearings. In Missouri, after an offender is detained for a parole violation, the Board "shall cause the offender to be brought before it for a hearing on the violation charged, under such rules and regulations as the board may adopt." § 217.720.2, RSMo Supp.1991. The regulations of the Board regarding the procedure at the hearing merely restate the minimum due process requirements articulated in Morrissey. 14 C.S.R. 80-4.030.

Petitioner first claims a violation of his due process right to "confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." He claims that he was denied this right because the only evidence against him was the parole violation reports.

Petitioner relies primarily on In re Carson, 789 S.W.2d 495 (Mo.App.1990). There the Missouri Court of Appeals, Southern District, was confronted with a record not dissimilar from that presented here. A judicial probation had been revoked based solely on a written probation violation report and an unsigned laboratory report indicating cocaine had been detected in the probationer's urine. The court concluded that by not being able to confront and cross-examine the persons who provided the evidence, the petitioner's due process rights were violated. 789 S.W.2d at 497. Petitioner argues that under Carson, the use of hearsay is a violation of his due process rights.

Respondent's primary authority is Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974). There the petitioner's suspended sentence was revoked following a probation violation hearing at which two police officers testified. One observed the petitioner taking a vehicle from a parking lot. The second officer arrested petitioner and checked the vehicle's ownership to a Mr. LaRose. Over petitioner's objection, the second officer was allowed to testify that LaRose said he owned the vehicle and that neither LaRose nor his wife had given petitioner permission to drive the vehicle. The court concluded that hearsay may form the basis for a revocation as long as the probationer or his counsel may cross-examine the witnesses present. 507 S.W.2d at 949. At least...