State v. Hughes, 54565

• Decision Date: 19 September 1972
• Docket Number: No. 54565,54565
• Citation: 200 N.W.2d 559
• Parties: STATE of Iowa, Appellee, v. Freddie Lee HUGHES, Appellant.
• Court: Iowa Supreme Court

Page 559

200 N.W.2d 559

STATE of Iowa, Appellee, v. Freddie Lee HUGHES, Appellant.

No. 54565.

Supreme Court of Iowa.

Sept. 19, 1972.

Thomas A. Renda, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and Ray Fenton, Polk County Atty., for appellee.

UHLENHOPP, Justice.

The question in this appeal is whether the trial court validly revoked defendant's probation.

A jury found defendant Freddie Lee Hughes guilty of uttering a forged instrument. The court sentenced him to the Iowa Men's Reformatory for a term not exceeding ten years, but suspended the sentence, granted him probation, and committed him to the supervision of the Iowa Bureau of Adult Correction Services. The Bureau prescribed conditions of probation for defendant to observe. See Code, 1971, §§ 247.20, 247.21.

Subsequently the parole agent who supervised defendant for the Bureau made a written report to the Bureau stating in substance that defendant violated rule 2 of the parole conditions, relating to residence, rule 3, relating to employment, and rule 6, relating to obedience to law. As to the latter, the report stated that defendant committed armed robbery at a Super Valu store and that he admitted committing four other robberies. The parole agent recommended revocation of probation. The probation administrator of the Bureau concurred in the recommendation and forwarded the report to the trial court.

The trial court ordered a hearing on the issue of revocation of probation and directed that notice be given to defendant and his attorney. Defendant and his attorney appeared at the hearing. The parole officer's report was before the trial court and the parties, but was not offered or admitted in evidence. The State did, however, introduce evidence by way of the testimony of two witnesses.

One witness was the probation administrator of the Bureau. Defendant objected to testimony by that witness regarding the contents of the report, as not based on personal knowledge. The trial court allowed the witness to testify subject to the objection. The witness testified that he once talked to defendant about defendant's lack of employment. He further testified that defendant's other major violation was failure to report to the parole officer as instructed, and that he was aware defendant had been charged with robbery with aggravation.

The other witness was a police officer. This witness testified he was at a 'stake out' at the Super Valu store where the robbery occurred, but that he did not see the actual robbery. Over defendant's overruled objection of hearsay, the witness was permitted to testify that two fellow officers told him they saw the whole thing. The witness then testified from personal knowledge that he saw defendant and one Lamar at the back of the store and asked them to come out with their hands behind their heads, which they did; defendant was advised of his constitutional rights and said he understood them; defendant said his and Lamar's guns and two money bags were stuffed on shelves; the guns and bags were found where defendant said they were; defendant asked how much money was in the bags, was told $10,000, and sighed and said he thought they would get $3,000; and defendant was arrested at the site.

Defendant produced no evidence at the revocation hearing. At the conclusion of the hearing, the trial court stated of record that its position was a preponderance of the evidence showed defendant was involved in an armed robbery. Accordingly, the court revoked defendant's probation and committed him to the reformatory. Defendant appealed.

In this court defendant urges three points: the trial court should have rendered an opinion and conclusions of law, should not have permitted testimony of a robbery for which defendant had not been convicted, and should not have admitted the parole officer's report in evidence without that officer present for cross-examination.

Defendant does not contend that notice, hearing, and counsel were not afforded. Thus we do not have a situation analogous to Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, or Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. See Annot. 44 A.L.R.3d 306. Here defendant's contentions relate to the conduct of a hearing which was in fact held. His contentions involve ground rules governing such a hearing.

Our statutes do not prescribe procedure for revocation hearings. Our decisions clearly indicate, however, that such proceedings are considerably different from criminal trials and considerably less formal. Pagano v. Bechly, 211 Iowa 1294, 232 N.W. 798; State v. Bufford, 231 Iowa 1000, 2 N.W.2d 634; Lint v. Bennett, 251 Iowa 1193, 104 N.W.2d 564; Curtis v Bennett, 256 Iowa 1164, 131 N.W.2d 1; State v. Rath, 258 Iowa 568, 139 N.W.2d 468; Cole v. Holliday, 171 N.W.2d 603 (Iowa); Gardels v. Brewer, 190 N.W.2d 803 (Iowa). The courts generally hold that in the absence of statutorily prescribed procedure, hearings may be summary and informal. Annot. 29 A.L.R.2d 1074, 1107--1113, 1114; 24 C.J.S. Criminal Law § 1618(11)(d) at 912--913. See Morrissey v. Brewer, supra, 408 U.S. at 480, 92 S.Ct. at 2600, 33 L.Ed.2d at 494 ('the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to a parole revocations').

Nevertheless, our decisions also contain language clearly indicating that probation cannot be revoked arbitrarily, capriciously, or without any information. Lint v. Bennett, 251 Iowa 1193, 1197, 104 N.W.2d 564, 567 ('arbitrarily, capriciously or without any information'); Curtis v. Bennett, 256 Iowa 1164, 1170, 131 N.W.2d 1, 4 ('arbitrarily'). See also State v. Rath, 258 Iowa 568, 139 N.W.2d 468 (claim of exceeding discretion); 21 Am.Jur.2d Criminal Law § 568 at 536 ('court cannot act arbitrarily, however, or according to whim or caprice'); 24 C.J.S. Criminal Law § 1618(11) at 901 ('this discretionary power should not be exercised arbitrarily or capriciously'). The cited language of our decisions is in accord with the rationable of Morrissey v. Brewer, supra. With these general principles as our frame of reference, we turn to defendant's three points.

I. Form of Order. Defendant cites no authority supporting his first contention that the trial court should have filed an opinion and conclusions of law. The only provision on this general subject which occurs to us is rule 179, Rules of Civil Procedure. But that rule obviously applies to a trial and not to a hearing of the present kind. We have no statute on the form of revocation orders. One court has held that unless required by statute, a revocation order need not be in any particular form. In re Torres, 86 Cal.App.2d 178, 194 P.2d 593. We hold that the trial court was not required to render an opinion or conclusions of law.

The findings of a court revoking probation must of course show the factual basis for the revocation. See Morrissey v. Brewer, supra. The findings of the trial court in the record here do state the factual basis--defendant's participation in the robbery at the Super Valu store.

II. Conviction of Robbery Essential? Defendant makes the contention that the trial court should not have permitted the police officer to testify about the robbery at the Super Valu store of which defendant had not been convicted, because defendant could not take the stand without danger of incriminating himself in connection with that robbery.

The State did not seek revocation of probation for Conviction of a subsequent offense. The probation condition was that defendant would conduct himself in obedience to law. Under that condition, the question was whether defendant had disobeyed the law, not whether he had been convicted. If he had disobeyed the law, the probation condition was violated even if he was never prosecuted for the robbery. The law on this point is simply against defendant. Shaw v. Henderson, 430 F.2d 1116 (5th Cir.); Kirsch v. United States, 173 F.2d 652 (8th Cir.); Gross v. State, 240 Ark. 926, 403 S.W.2d 75; People v. Hicks, 125 Ill.App.2d 48, 259 N.E.2d 846; Kennedy v. Maxwell, 176 Ohio St. 215, 198 N.E.2d 658; Wrone v. Page, 481 P.2d 479 (Okl.Cr.App.); Barker v. Ireland, 238 Or. 1, 392 P.2d 769; Toran v. State, 466 S.W.2d 320 (Tex.Cr.App.).

III. Admission of Report. Defendant's last contention is that the parole officer's report should not have been admitted in evidence without the officer present for cross-examination. We need not decide whether such a report may be considered at a hearing when the maker of the report is not present. See People v. Smith, 12 Cal.App.3d 621, 90 Cal.Rptr. 811; In re Dearo, 96 Cal.App.2d 141, 214 P.2d 585. See also Morrissey v. Brewer, supra. In the present case, the report appears to have been utilized at the hearing as a charge, rather than as proof. It was not offered or received in evidence. The proceedings are clear that the trial court rested the revocation on defendant's participation in the robbery and rested its finding of such participation on the testimony of the police officer.

Some of the police officer's testimony about the robbery was hearsay, but his other testimony, from personal knowledge, abundantly established defendant's participation in the robbery. The strict rules of evidence in criminal trials do not apply in revocation hearings. Morrissey v. Brewer, supra; Sellers v. State, 107 Ga.App. 516, 130 S.E.2d 790; Scott v. State, 238 Md. 265, 208 A.2d 575; State v. Morton, 252 N.C. 482, 114 S.E.2d 115; Gonzalez v. State, 456 S.W.2d 53 (Tex.Cr.App.); State ex rel. Johnson v. Cady, 50 Wis.2d 540, 185 N.W.2d 306. But the fact on which revocation is founded may not rest on rumor or surmise. Williams v. State, 162 Ga. 327, 133 S.E. 843; State v. Love, 236 N.C. 344, 72 S.C.2d 737. See Annot. 29 A.L.R.2d 1074, 1107--1113, 1114, 1115--1116, 1117--1118, 1120--1121. It has been held that when hearsay is...