State v. Caron

• Decision Date: 03 March 1975
• Citation: 334 A.2d 495
• Parties: STATE of Maine v. Alan R. CARON a/k/a Allen Caron.
• Court: Maine Supreme Court

Page 495

334 A.2d 495

STATE of Maine v. Alan R. CARON a/k/a Allen Caron.

Supreme Judicial Court of Maine.

March 3, 1975.

Donald H. Marden, County Atty., Augusta, for plaintiff.

Alan C. Sherman, Waterville, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.

WERNICK, Justice.

Defendant, Alan R. Caron, has appealed from a judgment of the Superior Court (Kennebec County) which terminated his status as a probationer and committed him to the Men's Correctional Center in execution of a sentence previously imposed but execution of which had been suspended when defendant was placed on probation. ¹

On July 19, 1971, several articles-including jewelry, cameras and guns-were taken from the Waterville home of Dennison Bancroft. A week later, sparsely informed property' in violation of 17 M.R.S.A. § 3551. by an unnamed informant, the Waterville police obtained a search warrant. Pursuant to it they searched an apartment rented and occupied by defendant's wife and frequently used by defendant. ² The police seized items disclosed by the search as fitting the general description of the articles taken from the Bancroft home. After the Bancrofts had identified as their property the items found in the apartment, defendant was arrested on a charge of 'greaking and entering with intent to commit larceny.' While defendant was being held in custody at the Waterville Police Station, a search was made of his person, and the search disclosed a diamond ring similar to one taken from the Bancroft home and later identified as the property of the Bancrofts.

On October 6, 1971 defendant was indicted, accused of 'breaking and entering with intent to commit larceny' in violation of 17 M.R.S.A. § 754.

Upon arraignment defendant pleaded not guilty, and on December 23, 1971, defendant went to trial. After the jury had been duly impanelled and sworn but before the prosecutor had begun the presentation of the State's case, defendant moved (in the absence of the jury) for the suppression as evidence of all the articles seized in his wife's apartment and the diamond ring taken by the police from his person. The theory to support the claimed suppression was that: (1) the search warrant was defective because the affidavit upon which it rested inadequately reflected probable cause and, therefore, the articles in the apartment were the products of an illegal search; and (2) with the police deprived of the benefit of the items found in the apartment, probable cause was lacking for a custodial arrest of defendant and, hence, the search of his person at the police station was unlawful and the diamond ring disclosed by such unlawful search was illegally seized.

The presiding Justice granted defendant's motion to suppress and ordered the articles taken from the apartment and the diamond ring suppressed as evidence. Thereupon, the prosecutor moved that the indictment against defendant be dismissed. The presiding Justice granted the motion and dismissed the indictment, and defendant was discharged.

Later the same day, the State Probation and Parole Board filed a probation-violation report with the Superior Court (Kennebec County) alleging that defendant had 'violated the terms and conditions of his probation' in that:

'On July 22, and July 26, 1971, at Waterville, . . . (he) was in possession of stolen property, under circumstances such that he knew it was stolen. On 7-22-71 he was in possession of jewelry, camaras, and a gun; and on 7-26-71 he was in possession of a ring, all the property of Dennison Bancroft which was taken from his home in Waterville, Maine, on July 19, 1971.

On December 28, 1971 a hearing to determine whether defendant's probation should be revoked was held before the same Superior Court Justice who, five days earlier, had suppressed as evidence the articles taken from the apartment of defendant's wife and the diamond ring found on defendant's person-and which the Probation and Parole Board was alleging was the stolen property possessed by defendant with knowledge that it was stolen.

At the hearing defendant moved (anew) that the articles seized at the apartment and the diamond ring discovered on defendant's person be suppressed as evidence for the purposes of the revocation of probation hearing. After extended discussion concerning the constitutional protections available to a defendant at such a hearing, the presiding Justice denied defendant's motion to suppress. The articles taken from the apartment and the diamond ring were subsequently admitted into evidence over defendant's objection.

During the further course of the hearing defendant objected to the admission into evidence of police testimony relating to the Bancrofts' having identified as their property the articles which had been found in the apartment of defendant's wife as well as the disamond ring found on defendant's person. The ground of defendant's objection was that the testimony was offered in 'hearsay' form. Despite the 'hearsay' nature of the police testimony the presiding Justice ruled it admissible for the purposes of a hearing to revoke probation.

In his appeal defendant claims that the foregoing two rulings of the presiding Justice were error requiring reversal of the judgment revoking his probation and committing him to the Men's Correctional Center.

We deny the appeal.

I.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), dealing with constitutional due process requirements as operative in a revocation of parole context, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), extending the conceptual framework of Morrissey v. Brewer to proceedings for revocation of a probation which, as here, has been granted as an incident of the imposition, and suspension of the execution, of a sentence for guilt of crime, establish that: (1) the instant revocation of probation proceeding was not 'a stage of a criminal prosecution' but (2) since it had potential to result in a deprivation of defendant's liberty, the federal constitutional guarantee of 'due process of law', conceived to require fundamental governmental fairness, mandates that the proceeding embody

'. . . an informal hearing structured to assure that the finding of a . . . violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the . . . (probationer's) behavior.' (emphasis supplied) (p. 484 of 408 U.S. p. 2602 of 92 S.Ct.) ³

Insofar as the instant revocation of probation hearing was not 'a stage of a criminal prosecution' and is to be viewed as calculated to achieve in 'informal' manner an expeditious determination of whether the probationer's activities were violative of the conditions upon which he was allowed to be free of confinement as well as whether his behavior was such as to move the Court to exercise a discretion to return the probationer to confinement, there is neither constitutional nor sound policy reason to require automatic transposition to the proceeding of the entire body of evidentiary rules conventionally operative in a criminal prosecution.

As to the 'hearsay' rule of evidence in particular, although in a criminal prosecution it may in part be embraced within the constitutional guarantee of a 'right of confrontation', no such potential constitutional sanction can attach when, as here, the proceeding is not 'a stage of a criminal prosecution.' Further, the use of 'hearsay' evidence is, per se, consistent with constitutional fundamental fairness 'due process' guarantees as applicable to a proceeding to revoke a probation granted as an incident of the imposition, and suspension of the execution, of a sentence for guilt of crime (or a proceeding for revocation of parole). Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963) cert. den. sub. nom., Jamison et al. v. Chappell, Chairman, U. S. Board of Parole et al., 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316 (1963); Arciniega v. Freeman, 439 F.2d 776 (9th Cir. 1971).

In terms of policy, a minor use of hearsay testimony can be consistent with the informality and expedition desirable for the kind of revocation of probation hearing now under scrutiny; therefore, we see no reason to prohibit hearsay evidence in such proceeding to the same extent it is prohibited in a criminal prosecution. We add the caveat, however, that if, in a given context, the hearsay evidence is unreasonably abundant and its substantive reliability highly suspect, a decision founded on it may be subject to vitiation for violation of 'due process of law' fairness standards.

Clearly, there was no such abuse here, either in terms of the amount or the substantive reliability of the hearsay testimony. The presiding Justice acted without error in admitting it as evidence.

2.

More complex is the issue raised by defendant's second point of appeal:-whether evidence 'suppressed' because obtained in violation of the 'search and seizure' protections of the Fourth Amendment to the Constitution of the United States may be admitted in a hearing to revoke a probation granted as an incident of the imposition, and suspension of the execution, of a sentence for guilt of crime.

Rule 41(e) M.R.Crim.P. governs the procedure for the 'suppression' of evidence, stating:

'A person aggrieved by an unlawful search and seizure may move . . . to suppress for use as evidence anything so obtained . . ..'

As Rule 1 M.R.Crim.P. elucidates, however, Rule 41(e) M.R.Crim.P.-as the 'criminal' rules in general-applies only to 'criminal proceedings.' Under Morrissey v. Brewer and Gagnon v. Scarpelli, supra a hearing to revoke a probation granted incident to the imposition, and suspension of the execution, of a sentence for guilt of crime is not 'a stage of a criminal prosecution' within the meaning of the Constitution of the United States. Guided by this analogy, we now decide that such a hearing is not a 'criminal...