State v. ERICKSON K.

• Decision Date: 20 March 2002
• Docket Number: No. 22,182.,22,182.
• Citation: 132 N.M. 258,46 P.3d 1258
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. ERICKSON K., Child-Appellant.
• Court: Court of Appeals of New Mexico

46 P.3d 1258

132 N.M. 258

STATE of New Mexico, Plaintiff-Appellee, v. ERICKSON K., Child-Appellant.

No. 22,182.

Court of Appeals of New Mexico.

March 20, 2002.

Certiorari Granted May 17, 2002.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,464, May 17, 2002.

OPINION

BOSSON, Chief Judge.

{1} In this appeal, we decide whether the Rules of Evidence apply to probation revocation hearings for juveniles, or whether, contrary to those rules, revocation may be based solely on hearsay evidence. Determining that the hearsay rule does apply, we reverse and remand for a new hearing.

BACKGROUND

{2} In August 2000, after admitting to one count of conspiracy to commit burglary, Child was adjudicated delinquent and placed on supervised probation for a period not to exceed two years. Child's probation agreement required him to abide by all terms and conditions of a residential treatment program, meet satisfactory requirements for discharge from the program, and participate in an aftercare plan. Child began his placement at Desert Hills Residential Treatment Center in Albuquerque in September 2000. In November 2000, the State filed a petition to revoke Child's probation, alleging that he had absconded from Desert Hills in violation of the terms of his probation. The children's court issued a bench warrant, and Child was arrested within a month.

{3} The children's court held a detention hearing on January 11, 2001. Child entered a formal denial of the allegations in the State's petition, and the matter was set for trial. On January 22, 2001, the children's court held a formal adjudicatory hearing to determine whether Child had violated the terms of his probation. {4} In the course of the hearing, Child moved to dismiss the petition because the State's entire case was based on hearsay, and there was no admissible evidence proving that Child had left Desert Hills contrary to the terms of his probation. The court denied Child's motion, and indicated that it could take judicial notice of "matters on file in the case." Ultimately, the court found that Child had absconded from Desert Hills, as alleged in the petition and contrary to the terms of his probation. Upon the State's recommendation, the court ordered that Child be committed to CYFD for an indeterminate period not to exceed two years.

DISCUSSION

{5} As a preliminary matter, we note that Child properly preserved his hearsay argument, and alerted the trial court in a timely manner to his claim that the Rules of Evidence apply to this proceeding. He did this by objecting to some of the hearsay testimony as it was elicited and by moving to dismiss for insufficient evidence at the close of the case on the ground that there was no admissible testimony to prove the violation. See, e.g., Fuentes v. Santa Fe Pub. Schs., 119 N.M. 814, 818, 896 P.2d 494, 498 (Ct.App. 1995) (stating, under some circumstances, that a question raised during closing argument was adequately preserved).

Whether the Rules of Evidence Apply to Juvenile Probation Revocation

{6} Both sides look for authority to the Children's Code and the Children's Court Rules. Thus, we are presented with a pure question of law which we review de novo. State v. Adam M., 1998-NMCA-014, ¶ 15, 124 N.M. 505, 953 P.2d 40 (stating that interpretation of the Children's Code is a question of law to be reviewed de novo); see also State v. Wilson, 1998-NMCA-084, ¶ 8, 125 N.M. 390, 962 P.2d 636 (using de novo standard to review district court's application of a Supreme Court rule). We first review the proceedings below in more detail.

{7} At the January 11, 2001, detention hearing, Child's juvenile probation officer (JPO), without being placed under oath, recounted what he had been told by personnel at Desert Hills—that Child had left the facility without completing the program. In response to a question from defense counsel, the JPO showed counsel a report from Desert Hills, but the document was never placed into evidence or otherwise made part of the record or the official file. The State does not claim that the children's court judge ever saw the report, and it is not part of our record on appeal.

{8} At the January 22, 2001, formal adjudicatory hearing, the JPO testified under oath that Child had failed to complete the program at Desert Hills. The JPO had no firsthand knowledge of this allegation. The JPO went on to testify that in the past, before Child was assigned to his supervision, Child had absconded from other treatment programs, and that this demonstrated an unwillingness to comply with the terms of probation. On cross-examination, the JPO was unable to say how much longer Child needed to remain at Desert Hills to successfully complete that program. Child then moved unsuccessfully to dismiss the petition due to the State's failure to submit any non-hearsay evidence upon which the court could find a probation violation.

{9} For legal authority, Child looks initially to the Children's Court Rules. In a sweeping statement, Rule 10-115 NMRA 2002 provides that "[e]xcept as otherwise provided by these rules, the New Mexico Rules of Evidence shall govern all proceedings in the children's court." Focusing specifically on juvenile probation revocation, Rule 10-232(C) NMRA 2002 of the Children's Court Rules provides that "[p]roceedings to revoke probation shall be conducted in the same manner as proceedings on petitions alleging delinquency." It is undisputed that "petitions alleging delinquency" are adjudicated in accord with the Rules of Evidence. See Rule 10-227 NMRA 2002 (stating that adjudicatory hearings in delinquency cases are to be conducted in the same manner as trials are conducted under the rules of criminal procedure). Child also points to the Children's Code for authority. See NMSA 1978, § 32A-2-24(B) (1993) (providing that juvenile probation revocation proceedings are to be "governed by the procedures, rights and duties applicable to proceedings on a delinquency petition").

{10} Thus, Child draws from both the procedural rules for children's court and the statutes that specifically apply to children to conclude that juvenile probation revocation proceedings are governed by the Rules of Evidence. Child emphasizes that neither those rules nor any statutes have provided "otherwise," either for children's court proceedings generally, or juvenile probation revocation proceedings in particular. Rule 10-115.

{11} The State responds with a rule citation of its own. The committee commentary to Rule 10-115 observes that Rule 10-115 "carries forth the provision of Rule of Evidence 11-1101 [NMRA 2002] that the Rules of Evidence apply to all the courts of the state." The committee commentary continues that Rule 11-1101(D)(2) "makes the [R]ules [of Evidence] inapplicable" to certain miscellaneous proceedings that specifically include proceedings "granting or revoking probation" and "dispositional hearings in children's court proceedings." Thus, the State argues that the Rules of Evidence, according to their own terms, do not apply to Child because a juvenile probation revocation is just such a miscellaneous proceeding that the Rules of Evidence intend to exclude as "inapplicable."

{12} Our first inquiry is whether the reference in Rule 11-1101(D)(2), that makes the rules "inapplicable" to proceedings "granting or revoking probation," encompasses only adult probation revocation proceedings or whether it includes juvenile proceedings as well. We begin with the complete Rule 11-1101(D):

D. Rules inapplicable. The [R]ules [of Evidence], other than those with respect to privileges, do not apply in the following situations:

...

(2) Miscellaneous proceedings. Proceedings for extradition or rendition; sentencing by the court without a jury, or granting or revoking probation; issuance of warrants for arrest, criminal summonses and search warrants; proceedings with respect to release on bail or otherwise; dispositional hearings in children's court proceedings; and issuance of ex parte custody orders, custody hearings, permanency hearings and judicial review proceedings in abuse and neglect proceedings.

{13} It is apparent from the text of Rule 11-1101(D)(2) that miscellaneous proceedings are grouped by subject matter and jurisdiction. The phrase "sentencing by the court without a jury, or granting or revoking probation" refers to adult proceedings only. Juveniles do not receive sentences; they are given dispositions. See NMSA 1978, § 32A-2-16(F) (1993) (providing, in the Children's Code, that once the court finds beyond a reasonable doubt on the adjudicatory issues that a child is delinquent, the court then proceeds "to make disposition of the case").

{14} When Rule 11-1101(D)(2) subsequently refers to "dispositional hearings in children's court proceedings," it speaks specifically of juveniles and what, in adult court, would be the sentencing phase. But there is no reference to probation revocation proceedings in this one portion of Rule 11-1101(D)(2) that specifically includes children. In the final analysis, the State's interpretation of Rule 11-1101(D)(2) does not persuade us. We conclude from its text that Rule 11-1101(D)(2) makes the Rules of Evidence "inapplicable" to proceedings "granting or revoking probation" with respect to adults, but not juveniles.

{15} Nor is this a "dispositional hearing in children's court" to which the Rules of Evidence are equally "inapplicable." The State argues that, because juvenile probation revocation proceedings concern dispositional matters, the Rules of Evidence do not apply. However, a hearing held to determine whether a juvenile has violated the terms of a probation agreement is adjudicatory in nature; it adjudicates the facts alleged in the petition to revoke...