State v. Johnson
| Decision Date | 17 January 2014 |
| Docket Number | No. S–13–118,S–13–118 |
| Citation | 287 Neb. 190,842 N.W.2d 63 |
| Court | Nebraska Supreme Court |
| Parties | State of Nebraska, appellee, v. Scott D. Johnson, appellant. |
OPINION TEXT STARTS HERE
Appeal from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
1. Probation and Parole. The revocation of probation is a matter entrusted to the discretion of a trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
3. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.
4. Appeal and Error. An appellate court resolves questions of law independently of the lower court's conclusion.
5. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the litigation's outcome.
6. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.
7. Moot Question: Appeal and Error. Under the public interest exception to the mootness doctrine, an appellate court may review an otherwise moot case if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.
8. Moot Question: Appeal and Error. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.
9. Probation and Parole: Due Process. The minimum due process protections required at a probation revocation hearing are as follows: (1) written notice of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body or person, who should not be the officer directly involved in making recommendations; (4) opportunity to be heard in person and to present witnesses and documentary evidence; (5) the right to cross-examine adverse witnesses, unless the hearing officer determines that an informant would be subjected to risk of harm if his or her identity were disclosed or unless the officer otherwise specifically finds good cause for not allowing confrontation; and (6) a written statement by the fact finder as to the evidence relied on and the reasons for revoking the conditional liberty. In addition, the parolee or probationer has a right to the assistance of counsel in some circumstances where the parolee's or probationer's version of a disputed issue can fairly be represented only by a trained advocate.
10. Probation and Parole: Proof. While the revocation of probation is a matter entrusted to the discretion of a trial court, unless the probationer admits to a violation of a condition of probation, the State must prove the violation by clear and convincing evidence.
11. Evidence: Words and Phrases. Clear and convincing evidence means that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.
In November 2007, Scott D. Johnson was convicted in the district court for Lancaster County of abuse of a vulnerable adult based on the financial exploitation of a relative. On February 1, 2008, he was sentenced to 3 years' probation. On April 13, 2010, the State filed a motion to revoke Johnson's probation on the basis that Johnson had allegedly assaulted another individual, Martha Majocha. After a hearing, the district court found that the State had proved by clear and convincing evidence that Johnson had violated the terms and conditions of his probation by assaulting Majocha, and therefore, the district court revoked Johnson's probation and sentenced him to 1 to 2 years' imprisonment with 26 days' credit for time served. Johnson appeals the order revoking his probation. We affirm.
In November 2007, Johnson was convicted of abuse of a vulnerable adult, a Class IIIA felony, and the district court sentencedJohnson to 3 years' probation on February 1, 2008. The conviction of abuse of a vulnerable adult was based on the financial exploitation of Johnson's step-great-grandmother. Johnson appealed the conviction and sentence, and the district court stayed the order of probation during the pendency of the appeal. The Nebraska Court of Appeals affirmed the conviction and sentence in a memorandum opinion filed on February 3, 2009, in case No. A–08–202. We denied Johnson's petition for further review. On April 20, the district court filed an “Order of Probation” reinstating Johnson's sentence of 3 years' probation.
On April 13, 2010, the State filed a motion to revoke Johnson's probation, alleging that he had failed “to refrain from unlawful or disorderly conduct or acts injurious to others.” The basis for the motion to revoke probation was the alleged physical assault of Majocha by Johnson on March 18, 2010. Johnson was living with Majocha at the time of the alleged assault.
On January 28, 2011, Johnson filed a motion to discharge the motion to revoke probation on the bases that the matter was not given prompt consideration pursuant to Neb.Rev.Stat. § 29–2267 (Reissue 2008) and that his constitutional rights to a speedy trial and due process were violated. The district court denied Johnson's motion to discharge, finding that the matter had been continued at Johnson's request and that Johnson had waived his right to a speedy “trial.” Johnson appealed, and in case No. A–11–285, the Court of Appeals sustained the State's motion for summary dismissal on November 15, 2011, stating that an order denying a motion to discharge in probation revocation proceedings is not a final, appealable order. We denied Johnson's petition for further review.
After the mandate from the Court of Appeals was returned, the district court conducted an evidentiary hearing on the motion to revoke probation. The hearing was conducted over 2 days, on October 16 and November 21, 2012. It is the outcome of this probation revocation hearing which gives rise to the instant appeal.
At the probation revocation hearing, it was learned that Majocha had died on January 2, 2012, and thus she was not present at the hearing. On October 16, the State offered, over Johnson's objection, exhibit 20, which was a copy of an obituary for Majocha. The district court reserved its ruling on exhibit 20, and ultimately, it was not received into evidence. Nevertheless, on November 21, the district court stated that “the State [had] made a showing that ... Majocha is dead” and that she was “simply unavailable to testify because of her death.”
During the parties' opening statements at the hearing on October 16, 2012, the State argued that State v. Clark, 8 Neb.App. 525, 598 N.W.2d 765 (1999), and State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011), provide that the rules of evidence do not apply to a probation revocation proceeding. The district court then stated that
the Court of Appeals and the Supreme Court have made it clear that ordinarily in a motion to revoke probation the defendant has a right to face and confront and cross-examine witnesses, unless the Court makes a finding of good cause as to why the defendant should not have the right to cross-examine and to face and confront witnesses against the defendant.
Both the State and Johnson agreed with the district court's characterization of the law.
Johnson further asserted that § 29–2267 provides that the probationer shall have the right to hear and “confront” the evidence against him. Section 29–2267 provides:
Whenever a motion or information to revoke probation is filed, the probationer shall be entitled to a prompt consideration of such charge by the sentencing court. The court shall not revoke probation or increase the requirements imposed thereby on the probationer, except after a hearing upon proper notice where the violation of probation is established by clear and convincing evidence. The probationer shall have the right to receive, prior to the hearing, a copy of the information or written notice on the grounds on which the information is based. The probationer shall have the right to hear and controvert the evidence against him, to offer evidence in his defense and to be represented by counsel.
(Emphasis supplied.)
The State then called Officer Chris Schamber to testify. Officer Schamber testified that he had been on duty on March 18, 2010, and that on that day, he was called to the hospital to speak with Majocha regarding her injuries. Officer Schamber testified that at the hospital, he observed Majocha's injuries, specifically bruising on her breasts and shins. The State then questioned Officer Schamber regarding statements that Majocha had made. Johnson objected on the grounds that the statements were inadmissible hearsay and that because Majocha was not subject to cross-examination, admission of the statements would be a violation of Johnson's constitutional rights to due process and confrontation. The district court took Johnson's objection under advisement and continued the hearing to November 21, 2012.
The hearing resumed on November 21, 2012, and Officer Schamber resumed his testimony. He testified that he taped his interview with Majocha using a microcassette recorder. The State asked...
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