State v. Guthrie

• Decision Date: 01 April 2011
• Docket Number: No. 31,567.,31,567.
• Citation: 2011 -NMSC- 014,257 P.3d 904,150 N.M. 84
• Parties: STATE of New Mexico, Plaintiff–Petitioner,v.Jaime GUTHRIE, Defendant–Respondent.
• Court: New Mexico Supreme Court

150 N.M. 84

257 P.3d 904

2011 -NMSC- 014

STATE of New Mexico, Plaintiff–Petitioner,

v.Jaime GUTHRIE, Defendant–Respondent.

No. 31,567.

Supreme Court of New Mexico.

April 1, 2011.

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Petitioner.Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} Citing its recent opinion, State v. Phillips, 2006–NMCA–001, 138 N.M. 730, 126 P.3d 546, the Court of Appeals reversed Defendant's probation revocation on due process grounds. See State v. Guthrie, 2009–NMCA–036, 145 N.M. 761, 204 P.3d 1271, cert. granted, 2009–NMCERT–003, 146 N.M. 604, 213 P.3d 508. Defendant did not have an opportunity to cross examine his probation officer, who did not testify, and the probation officer's former supervisor, who did testify, had no personal knowledge of the circumstances surrounding the alleged violations. Id. ¶¶ 3–4. The Court concluded that Defendant's due process right to confrontation demanded that the district judge specifically “address” the reasons for the absence of Defendant's probation officer or “specifically state the reasons that the evidence was sufficiently accurate or reliable so as to excuse [her] presence.” Id. ¶¶ 14–15.

{2} Because we conclude that Phillips established a standard that is unnecessarily preoccupied with the reason a witness is absent, instead of considering whether confrontation of the witness is essential to the truth-finding process in the context of probation revocation, we overrule Phillips, 2006–NMCA–001, 138 N.M. 730, 126 P.3d 546. In so doing, we attempt to guide the due process inquiry of our courts to focus more on the need for, and the utility of, confrontation of a live witness in the context of a particular case. Although the district court in the present case should have been more explicit in its reasons for relying on hearsay evidence without confrontation, our review of the record supports the court's decision to revoke. Accordingly, we reverse the Court of Appeals and remand to the district court for any remaining proceedings in furtherance of its decision to revoke Defendant's probation.

BACKGROUND

{3} In 2005, Defendant pled guilty to three offenses and was placed on supervised probation. Following a motion to revoke probation, Defendant agreed to attend a ninety-day residential treatment program. Defendant's probation officer, Cindy Chavez, signed his order of probation.

{4} In 2006, the State filed a motion to revoke probation alleging several probation violations, the most significant, for our purposes, being Defendant's failure to complete the ninety-day treatment program. The State initially subpoenaed Chavez as its only witness to testify at the probation revocation hearing. When the hearing was rescheduled, however, the State called Jaime Olivas, Chavez's supervisor, to testify, instead of Chavez, who apparently had transferred to another part of the state.

{5} During the revocation hearing, Defendant moved to dismiss because Chavez was not available for cross examination, although she had filed the probation violation report upon which the motion was based. Olivas apparently had little or no personal knowledge about the case. After a brief discussion of the merits of Defendant's hearsay and confrontation objections, the judge reserved ruling.

{6} Olivas testified that he was a probation supervisor but that he had not directly supervised Defendant. Olivas identified a document presented to him as a “report of probation.” Olivas referred to documents from Defendant's probation file, including a probation report and a fax from Defendant's residential treatment center, to testify that Defendant had been discharged from the court-ordered treatment program without completing it, had not attended other required appointments, and had not paid probation costs.

{7} In the course of cross examining Olivas, Defendant challenged Olivas's lack of personal knowledge of the alleged probation violations and the lack of explanation why Chavez was not present at the hearing. Olivas conceded that he had not signed Defendant's probation report, had never met Defendant, and had no personal knowledge about Defendant. In addition, Olivas had never spoken with anyone from the residential treatment center, nor had he independently investigated any of the allegations against Defendant. Olivas's knowledge was based solely on the information he had reviewed in the probation file and the report, including a fax from the treatment program and documents prepared by Chavez.

{8} At the conclusion of the hearing, the district court found that Defendant had violated his probation. Importantly, the judge observed that Defendant had been arrested in Quay County and that “we have no residential treatment center in Quay County,” the obvious inference being that Defendant could not have successfully completed his assigned program. The judge did not evaluate the reasons for Chavez's absence or elaborate on his reasons for relying on the hearsay evidence from Olivas.

{9} When Defendant appealed his probation revocation, our Court of Appeals reversed, stating that the district court had failed to address the reasons for Chavez's absence or “the reasons that the evidence was sufficiently accurate or reliable so as to excuse the presence of Ms. Chavez.” Guthrie, 2009–NMCA–036, ¶ 15, 145 N.M. 761, 204 P.3d 1271. According to the Court of Appeals, the district court's failure to justify Chavez's absence or make an explicit finding of reliability deprived Defendant of his constitutionally protected opportunity to confront the principal witness against him. Id. In so doing, the Court of Appeals relied on Phillips, 2006–NMCA–001, 138 N.M. 730, 126 P.3d 546. See Guthrie, 2009–NMCA–036, ¶ 15, 145 N.M. 761, 204 P.3d 1271. We granted certiorari to consider both this case and the continued viability of Phillips.

DUE PROCESS RIGHT TO CONFRONTATION IN PROBATION PROCEEDINGS

{10} The U.S. Supreme Court has held that, under the conditions specified in Morrissey v. Brewer, 408 U.S. 471, 487, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), “a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing.” Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Morrissey emphasized that revocation hearings are informal. 408 U.S. at 487, 92 S.Ct. 2593. Revocation of probation “ ‘deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Gagnon, 411 U.S. at 781, 93 S.Ct. 1756 (quoting Morrissey, 408 U.S. at 480, 92 S.Ct. 2593). Because loss of probation is loss of only conditional liberty, “the full panoply of rights due a defendant in a [criminal trial] do [ ] not apply.” Morrissey, 408 U.S. at 480, 92 S.Ct. 2593; accord State v. Mendoza, 91 N.M. 688, 690, 579 P.2d 1255, 1257 (1978).

{11} Morrissey instructs that due process “is flexible and calls for such procedural protections as the particular situation demands” and “ not all situations calling for procedural safeguards call for the same kind of procedure.” 408 U.S. at 481, 92 S.Ct. 2593 (emphasis added). Given that inherent flexibility, Morrissey established minimum due process requirements for probation revocation proceedings, including “an informal hearing structured to assure that the finding of a [probation] violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.” Id. at 484, 92 S.Ct. 2593. The hearing

must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.

Id. at 488, 92 S.Ct. 2593 (emphasis added).

{12} Within that basic framework, the U.S. Supreme Court detailed six components of due process in Gagnon:

‘(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) 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 reasons for revoking (probation or) parole.'

411 U.S. at 786, 93 S.Ct. 1756 (emphasis added) (quoting Morrissey, 408 U.S. at 489, 92 S.Ct. 2593). Significantly, live testimony of adverse witnesses, such as a probation officer, is not always required during probation revocation hearings. We also observe that the purpose of the hearing is to evaluate “ contested relevant facts,” Morrissey, 408 U.S. at 488, 92 S.Ct. 2593 (emphasis added), not every assertion the state may put forward as part of its case for revocation. The right protected in probation revocations is not the sixth amendment right to confrontation, guaranteed every accused in a criminal trial, but rather the more generally worded right to due process of law secured by the fourteenth amendment. Id. at 472, 497, 92 S.Ct. 2593.

{13} In Gagnon, the Supreme Court subsequently addressed “the difficulty and expense of procuring witnesses from perhaps thousands of miles away,” and emphasized that alternatives to live testimony are available during probation revocation hearings. 411 U.S. at 782 n. 5, 93 S.Ct. 1756.

While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not...