State v. Gale

• Decision Date: 19 December 2022
• Docket Number: 49080,49081
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. SAMUEL STERLING GALE, Defendant-Appellant.
• Court: Idaho Court of Appeals

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STATE OF IDAHO, Plaintiff-Respondent, v. SAMUEL STERLING GALE, Defendant-Appellant.

Nos. 49080, 49081

Court of Appeals of Idaho

December 19, 2022

Appeal from the District Court of the Seventh Judicial District State of Idaho, Bonneville County. Hon. Joel E. Tingey District Judge.

Orders finding probation violation, reversed.

Eric D. Fredericksen, State Appellate Public Defender; Jason C Pintler, Deputy Appellate Public Defender, Boise, for appellant.

Hon Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.

LORELLO, Chief Judge.

In these consolidated cases, Samuel Sterling Gale appeals from the district court's orders finding that he violated his probation. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

While Gale was serving a five-year term of probation following a period of retained jurisdiction for his convictions for five counts of sexual exploitation of a child, the State filed a motion for probation violation. In a report of violation submitted with the State's motion, Gale's probation officer alleged that Gale violated his probation by failing to successfully complete a sex-offender treatment program and failing to submit to a polygraph examination. During the evidentiary hearing on the State's motion, the district court heard evidence regarding Gale's alleged noncompliance with a required polygraph examination, including his refusal to "cooperate with pre-test questioning" and his invocation of the Fifth Amendment in response to questions about alcohol or illegal drug use. Additionally, Gale's probation officer testified that Gale had been terminated from sex-offender treatment due to his "overall noncompliance" with the polygraph examination.

Following the evidentiary hearing, the State withdrew "the allegations pertaining to [Gale's] invoking his right to remain silent" in response to Gale's written closing argument asserting that the district court could not revoke his probation due to his invocation of the Fifth Amendment. Instead, the State requested that the district court "proceed on evaluating [Gale's] termination from treatment for the other reasons presented in the evidence at the hearing of this matter." Subsequently, the district court found that Gale violated his probation only by failing to complete the required polygraph. In support of this determination, the district court's written findings of fact and conclusions of law referenced the report of violation--even though the document was not formally admitted into evidence during the evidentiary hearing. Ultimately, the district court decided to continue Gale's probation, but imposed seventy-five days in jail as a sanction for the violation. Gale appeals.

II. STANDARD OF REVIEW

The decision to revoke probation is a two-step, discretionary decision. State v. Garner, 161 Idaho 708, 710, 390 P.3d 434, 436 (2017); State v. Chavez, 134 Idaho 308, 312, 1 P.3d 809, 813 (Ct. App. 2000). The court must first find that the probation has been violated and if so, whether probation should be revoked. State v. Allmaras, 167 Idaho 698, 706, 475 P.3d 1220, 1228 (Ct. App. 2020). The trial court's factual findings in a probation revocation proceeding, including a finding that a violation has been proven, will be upheld if they are supported by substantial evidence. Id. Whether constitutional requirements have been satisfied is subject to free review. State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007).

III. ANALYSIS

Gale argues the district court erroneously relied upon evidence that was not admitted during the hearing on the State's motion for probation violation to find he committed an alleged violation the State had withdrawn. The State responds that Gale has failed to show error in the district court's finding that he violated his probation, contending that he failed to show the State withdrew the allegation that he violated probation by failing to provide background information to the polygrapher. The State also argues that the evidence presented supported this allegation. We hold that the district court erred by finding that Gale violated his probation by refusing to submit to a polygraph examination because, even if the State did not withdraw the allegation, the finding is not supported by substantial, competent evidence.

In a probation revocation proceeding, the trial court must determine: (1) whether the probationer violated probation; and (2) if so, whether the violation justifies revocation. State v. Hall, 114 Idaho 887, 888, 761 P.2d 1239, 1240 (Ct. App. 1988). A court may not revoke probation without a finding that the probationer violated the terms of probation. See I.C. §§ 19-2603, 20-222; State v. Blake, 133 Idaho 237, 243, 985 P.2d 117, 123 (1999). The State bears the burden of proving such a violation by a preponderance of the evidence. See State v. Ross, 170 Idaho 58, 64, 507 P.3d 545, 551 (2022) (holding that the trial court did not err in finding by a preponderance of the evidence that a probationer violated his probation by committing petit theft). The trial court's factual findings in a probation revocation proceeding, including a finding that a violation occurred, will be upheld if supported by substantial evidence. See State v. Russell, 122 Idaho 488, 490, 835 P.2d 1299, 1301 (1992).

The district court found that Gale violated his probation by refusing "to answer certain questions prior to . . . a maintenance polygraph, resulting in the cessation of any attempt to conduct a polygraph." The district court further expounded the violation by referencing the report of violation submitted with the probation violation motion, expressly noting that Gale's probation officer authored the report "upon penalty of perjury." The district court observed that the report described an email from Gale's polygrapher indicating Gale "refused to answer questions regarding physical and mental health or background information" and "indicated that he would refuse to answer any questions that could incriminate" him by invoking the Fifth Amendment. The district court then addressed Gale's argument that he could invoke the Fifth Amendment in response to questions that might incriminate him. Reasoning that the Fifth Amendment right against self-incrimination "comes into play only" in relation to statements "likely to lead to a new criminal prosecution," the district court found that "the evidence supports the allegation that Gale refused to answer questions not protected by the [Fifth] Amendment, such as questions regarding his physical and mental health and other background information" and, therefore, the district court found "a probation violation in this regard."

Gale contends there is not substantial evidence supporting the district court's conclusion that he violated his probation by refusing to answer questions to which he could not invoke the Fifth Amendment. Gale does not argue that the district court failed to identify sufficient evidence in its written findings of fact and conclusions of law to support the finding that he violated his probation. Rather, Gale asserts the district court erred by relying upon allegations contained in the report of violation, which was not offered or admitted into evidence during the probation revocation hearing, to support the finding. We agree with Gale.

Probation revocation proceedings are not criminal prosecutions and need not implement equivalent procedural safeguards. See Rose, 144 Idaho at 765, 171 P.3d at 256. However, because probationers have a protected liberty interest in continued release on probation, probation revocation proceedings must satisfy the requirements of due process. Morrissey v. Brewer, 408 U.S. 471, 489 (1972); see also State v. Chapman, 111 Idaho 149, 151, 721 P.2d 1248, 1250 (1986). Due process is a flexible standard and, in the probation context, permits consideration of evidence potentially inadmissible in a criminal trial. Rose, 144 Idaho at 767, 171 P.3d at 258. Accordingly, with the exception of rules governing privilege, the Idaho Rules of Evidence do not apply during probation revocation proceedings. I.R.E. 101(e)(3).

Nevertheless despite fewer restrictions on admissibility, the procedures governing the admission of evidence during probation revocation proceedings have not been relaxed. To the contrary, the importance of such procedures increases in situations, like probation revocation proceedings, where admissibility restrictions are more liberal. Consequently, not every document in a trial court's file constitutes evidence a trial court may freely rely upon to establish disputed facts. Probationers are entitled to disclosure of the evidence against them and an in-person hearing during which they may present witnesses and documentary evidence. See State v. Wilson, 127 Idaho 506, 511, 903 P.2d...