State v. Graham

• Decision Date: 14 September 2001
• Docket Number: No. 85,098.,85,098.
• Citation: 30 P.3d 310,272 Kan. 2
• Parties: STATE OF KANSAS, Appellee, v. RONALD GRAHAM, Appellant.
• Court: Kansas Supreme Court

272 Kan. 2

30 P.3d 310

STATE OF KANSAS, Appellee, v. RONALD GRAHAM, Appellant.

No. 85,098.

Supreme Court of Kansas.

Opinion filed September 14, 2001.

Randall L. Hodgkinson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

Tony R. Cruz, assistant county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant appeals the district court's revocation of his probation and his sentence of 15 years to life in prison on a conviction of possession of cocaine, a class B felony due to a prior conviction. Defendant claims the trial court erred (1) in finding he violated his probation; (2) in failing to consider the factors set out in K.S.A. 21-4601 and K.S.A. 21-4606 when imposing a sentence greater than the statutory minimum sentence; and (3) in refusing to modify his sentence as recommended by the Topeka Correctional Facility (TCF). Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1).

Graham's original convictions of possession of methamphetamine, possession of marijuana, and possession of cocaine were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). Graham's sentence was later commuted to 15 years to life by Governor Finney. In 1998, as a result of a K.S.A. 60-1507 action which alleged ineffective counsel in allowing an uncounseled Arkansas conviction to be considered in determining Graham's sentence, this court reversed the judgment of sentence and remanded the case for resentencing.

Graham, who had served 10 years of his original sentence, was resentenced for possession of cocaine, a class B felony. The sentence for a class B felony committed in 1989 was a minimum term of 5 to 15 years and a maximum term of 20 years to life. K.S.A. 21-4501(b) (Ensley 1988). The judge imposed a 15-year to life sentence. After resentencing Graham, the district court suspended imposition of the sentence and placed Graham on 1 year of probation, supervised by court services. Later, the district court, after finding that Graham had violated the terms of his probation, revoked Graham's probation. Graham appealed. The basis for revoking Graham's probation was that while on probation Graham had twice tested positive for narcotics and had been arrested for possession of controlled substances. Graham contends that the district court improperly considered documents that were not admitted into evidence in finding that he had violated the terms of his probation.

A probationer may not have his or her probation revoked unless it is made to appear that the probationer has failed to comply with the conditions of probation. Swope v. Musser, 223 Kan. 133, Syl. ¶ 2, 573 P.2d 587 (1977). Once there has been evidence of a violation of the conditions on which probation was granted, revocation is in the sound discretion of the district court. 223 Kan. at 136.

On the first check, Graham tested positive for marijuana and amphetamine. To confirm the results, Michael Tyson, Graham's probation officer, poured Graham's urine sample from a styrofoam cup into another container and sent the sample to LabCorp for analysis. LabCorp confirmed Tyson's finding. During a follow-up visit, Tyson discussed the LabCorp test results with Graham and recommended that Graham enter a chemical dependency treatment program. Graham agreed to enter a program and submitted to an assessment process at Charter Hospital. Graham did not enter treatment.

At a subsequent check, Graham again tested positive for amphetamine and marijuana. Tyson confronted Graham with the results. Graham denied using prohibited substances. To obtain confirmation of his test results, Tyson sent the second sample to LabCorp. LabCorp determined that there was an insufficient amount of urine in that sample to test for amphetamine. The specimen was sufficient to test for marijuana. LabCorp confirmed the presence of marijuana in the urine. Tyson informed Graham of the results of the second confirmation test, and Tyson filed a motion to revoke Graham's probation. At the probation revocation hearing Tyson, who was certified to conduct urinalysis testing, testified concerning the two occasions Graham had field-tested positive for amphetamine and marijuana. Tyson stated that contamination of the testing materials could invalidate the result of a urine test and that great caution was necessary in collecting and testing a sample. Tyson testified that Graham urinated into a styrofoam cup that was setting on a shelf in the specimen collection room. Tyson stated that the cup was not individually wrapped or otherwise protected from contamination. Although discussed, the LabCorp reports were not submitted for admission as evidence.

The district court found that on two occasions, Graham's urine had tested positive for prohibited substances. Usage of controlled substances was prohibited by the conditions of Graham's probation. Once the State presents prima facie proof of a violation of a condition of probation, the defendant has the burden of coming forward with evidence to meet and overcome this prima facie proof. State v. Miller, 20 Kan. App.2d 378, Syl. ¶ 10, 888 P.2d 399 (1995). Two positive results on separate occasions for prohibited substances establishes sufficient evidence to support the district court's decision to revoke Graham's probation.

Graham first argues that the lab tests were not reliable because the styrofoam cup, which was not wrapped to protect against contamination, could have been contaminated. Graham then contends that the LabCorp results, which were testified to by Tyson, were inadmissible hearsay and were erroneously considered by the district court. Graham bases this complaint on the statutory requirements for the admission of written statements at revocation hearings and on the constitutional guarantee that he be afforded the right of confrontation.

K.S.A. 22-3716 sets out the procedure to be used during probation revocation hearings. The statute provides that the State shall have the burden of establishing the violation of probation. Lab-Corp's written reports of its test results were discussed at the probation revocation hearing but not admitted as evidence.

In a probation revocation proceeding, the defendant is entitled to only minimal due process rights. Thus, the full panoply of rights due in a criminal proceeding is not applicable to probation revocations. State v. Yura, 250 Kan. 198, 201, 825 P.2d 523 (1992). Among the minimum requirements of due process in a probation revocation hearing is the right to confront and cross-examine adverse witnesses. 250 Kan. at 207. The probationer's right of confrontation, however, may be dispensed with if the trial court finds good cause for not allowing confrontation. 250 Kan. at 207-08.

Graham did not object to the testimony regarding the LabCorp results. Because of the lack of objection, the trial court was not required to make specific findings for admission of the evidence. The erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection. K.S.A. 60-404; State v. Sutton, 256 Kan. 913, 924, 889 P.2d 755 (1995).

We note that the Kansas Legislature enacted the harmless error rule. K.S.A. 60-261 states:

"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

Here, no objection based on lack of confrontation was made to the district court relating to the LabCorp reports. If Graham had objected, the trial court would have been required to make specific findings regarding good cause for not allowing confrontation, and this court would have a basis for reviewing the district court's reasons. Because no objection was made to consideration of the LabCorp test results, we find no error.

Furthermore, unsubstantiated and unreliable hearsay cannot, consistent with due process, be the sole basis for a probation revocation. When hearsay is reliable, however, it can be the sole basis for a probation revocation. When hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial. Miller, 20 Kan. App.2d at 389. The probation officer, who was certified to conduct urinalysis testing, testified that on two occasions Graham had field-tested positive for amphetamine and marijuana. The probation officer substantiated the unadmitted LabCorp reports, giving the reports a substantial indicia of reliability.

Graham next contends that the district court's failure to state statutory factors when imposing a sentence greater than the statutory minimum sentence was error.

K.S.A. 21-4601 provides:

"This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law."

K.S.A. 21-4606(b) provi...