State v. Martin
| Decision Date | 30 December 2022 |
| Docket Number | CC 18CR25299, 18CR31500 (SC S068859) |
| Citation | 370 Or. 653,522 P.3d 841 |
| Parties | STATE of Oregon, Respondent on Review, v. DeAngelo Franklin MARTIN, Petitioner on Review. |
| Court | Oregon Supreme Court |
Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
Lauren P. Robertson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Ryan T. O'Connor, O'Connor Weber LLC, Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association. Also on the brief were Rosalind M. Lee, Rosalind M. Lee LLC, Eugene, and Nora Coon, Salem.
Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, individuals on parole or probation are entitled to certain procedural safeguards in revocation proceedings, including the right to confront adverse witnesses. That right may be overcome, however, by a showing of good cause for not allowing confrontation.
This case concerns the test that applies to the question whether the government has established good cause. Defendant argues that his due process rights were violated when the trial court ruled that hearsay evidence—a recording of the victim's phone call to 9-1-1—was admissible to demonstrate that defendant had contacted the victim in violation of the terms of his probation. Defendant argues that the state did not show good cause for failing to produce the victim at the hearing, and that his confrontation right was thus violated. The trial court revoked probation, and the Court of Appeals affirmed. We allowed review and, for the reasons explained below, we affirm, but on different grounds than the Court of Appeals.
The facts relevant to our review are primarily procedural and are undisputed.
Defendant was serving a sentence of supervised probation for several domestic violence crimes committed against his girlfriend. One condition of his probation was that he was prohibited from contacting the victim. Defendant violated that condition, leading the victim to call 9-1-1 and ask for help.
At a probation revocation hearing, the state informed the trial court that the state had been unable to locate the victim—who was unhoused at the time of the hearing and had no stable address or phone number—despite numerous attempts to contact her. The state sought to admit a recording of the victim's 9-1-1 call as evidence that defendant had violated the no-contact provision. Defendant objected, asserting that he had the right to confront the victim under the Due Process Clause of the Fourteenth Amendment.
Defendant asked the trial court to apply the test from State v. Wibbens , 238 Or App 737, 741-42, 243 P.3d 790 (2010), and State v. Johnson , 221 Or App 394, 190 P.3d 455, rev. den. , 345 Or. 418, 198 P.3d 942 (2008), (the " Johnson test"), which weighs the probationer's interest in confrontation against the government's good cause for denying it. The state agreed that Johnson provided the relevant test, which requires the trial court to weigh two factors bearing on the strength of defendant's confrontation interest (the importance of the evidence, and the probationer's opportunity to refute the evidence) against two factors bearing on the state's demonstration of good cause (the difficulty and expense of obtaining the witness, and the traditional indicia of reliability borne by the evidence).
The trial court ruled that the first, third, and fourth factors weighed in favor of the state, while the second factor favored defendant, and concluded that the 9-1-1 recording was admissible. It then ruled that defendant had violated his probation condition, and it revoked probation.1
On appeal, defendant argued that the trial court had misapplied the factors because the factors weighing in favor of defendant—the importance of the evidence (conceded by the state on appeal2 ) and the opportunity to refute the evidence—established a strong interest in confrontation that was not outweighed by the state's argument for good cause. The state argued that the trial court's ruling was correct under Johnson , but the state alternatively argued that no balancing was even required in this instance because the 9-1-1 recording qualified for the "excited utterance" exception to the hearsay rule. The state noted that, in Johnson , the Court of Appeals had left open the question of whether the four-factor balancing test must be applied to evidence that falls within a well-established hearsay exception. See 221 Or App at 403-04, 190 P.3d 455.
A divided panel of the Court of Appeals affirmed.
State v. Martin , 313 Or App 578, 496 P.3d 1077 (2021). The majority resolved the question left open in Johnson by concluding that, when evidence falls within a "firmly rooted" exception to the rule prohibiting hearsay, the inherent reliability of the evidence is sufficient to satisfy due process without balancing. Id. at 583, 496 P.3d 1077. The court noted that, because such a statement is "already considered so trustworthy that adversarial testing can be expected to add little to its reliability," "the due process concerns which ordinarily favor confrontation—and thus Johnson balancing—are not present." Id. at 582, 583, 496 P.3d 1077.
Judge James dissented, concluding that no categorical exception to the balancing test is appropriate for "firmly rooted" hearsay exceptions. Id. at 589, 496 P.3d 1077 (James, J., dissenting). The dissent reasoned that the due process confrontation right in a probation hearing "serves a purpose beyond the simple search for reliability," id. , and that due process requires a case-by-case analysis of the circumstances that is inconsistent with the rule that the majority adopted. Id. at 590, 496 P.3d 1077 (citing County of Sacramento v. Lewis , 523 U.S. 833, 850, 118 S Ct 1708, 140 L Ed 2d 1043 (1998) ).
We allowed defendant's petition for review.
The ultimate decision to revoke probation is generally a matter of discretion for the trial court. See ORS 137.545(5) (); see also Barker v. Ireland , 238 Or. 1, 4, 392 P.2d 769 (1964) ( ). However, the revocation in this case followed the trial court's conclusion that hearsay evidence could be admitted without violating defendant's confrontation rights under the Due Process Clause of the Fourteenth Amendment. That legal conclusion is one that we review for legal error—his rights were either violated or not. See State v. Washington , 355 Or. 612, 646, 330 P.3d 596, cert. den. , 574 U.S. 1016, 135 S.Ct. 685 (2014) (); cf. State v. Rogers , 330 Or. 282, 312, 4 P.3d 1261 (2000) ().
Under the Fourteenth Amendment, a probationer has a due process right to confront and cross-examine a witness in a probation revocation proceeding, unless the state demonstrates good cause to deny that right. Morrissey v. Brewer , 408 U.S. 471, 489, 92 S Ct 2593, 33 L Ed 2d 484 (1972) (); Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S Ct 1756, 36 L Ed 2d 656 (1973) ().
Because this court has not previously discussed a probationer's confrontation right at a revocation hearing, we begin with the principles that govern the issue, which are drawn from the Supreme Court's decisions in Morrissey and Gagnon . In Morrissey , the Court held that a person on parole has a liberty interest that implicates the Due Process Clause; thus, the state cannot revoke parole and return an individual to custody without meeting certain requirements of procedural fairness. 408 U.S. at 482, 487-89, 92 S.Ct. 2593.
Among those requirements is that the revocation decision be preceded by a hearing, if requested by the parolee:
Id. at 488, 92 S.Ct. 2593. The Court then concluded that, although it could not write a "code of procedure" for the states, the "minimum requirements" of due process include, among other things, "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Id. at 488-89, 92 S.Ct. 2593.
The Supreme Court did not further specify how courts should determine whether the state has established good cause for not allowing confrontation. That question has been addressed in numerous lower court cases, including by our Court of Appeals in Johnson , following case law from the Ninth Circuit. The Johnson test balances the right to confrontation against the state's good cause for not procuring the witness. 221 Or App at 401, 190 P.3d 455. It...
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State v. Rockafellor
... ... defendant's constitutional rights and was not justified ... based on the record in this case." Whether a defendant ... was denied his constitutional rights to confrontation and a ... fair trial are legal questions that we review for errors of ... law. State v. Martin, 370 Or. 653, 657-58, 522 P.3d ... 841 (2022) (reviewing alleged violation of confrontation ... rights for errors of law); State v. Presock, 281 ... Or.App. 277, 280, 380 P.3d 1192 (2016), rev den, 360 ... Or. 852 (2017) (reviewing alleged violation of due process ... rights for errors of ... ...