State v. Miller

• Decision Date: 16 April 1975
• Docket Number: No. 74-328,74-328
• Citation: 42 Ohio St.2d 102,326 N.E.2d 259
• Parties: , 71 O.O.2d 74 The STATE of Ohio, Appellant, v. MILLER, Appellee.
• Court: Ohio Supreme Court

Page 102

42 Ohio St.2d 102

326 N.E.2d 259, 71 O.O.2d 74

The STATE of Ohio, Appellant, v. MILLER, Appellee.

No. 74-328.

Supreme Court of Ohio.

April 16, 1975.

George C. Smith, Pros. Atty., and Miles C. Durfey, Columbus, for appellant.

Timothy J. O'Connell, Richard H. Ferrell, and Bernard Z. Yavitch, Columbus, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

In Gagnon v. Scarpelli (1973), 411 U.S. 778, at page 782, 93 S.Ct. 1756, at page 1760, 36 L.Ed.2d 656, it was held, that '* * * a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer * * *.' Therefore, although the revocation proceedings in question here involved revocation of probation, they must be examined in light of Morrissey.

The minimum due process requirements for revocation of parole set forth in Morrissey v. Brewer (1972), 408 U.S. 471, 489, 92 S.Ct. 2593, 2595, 33 L.Ed.2d 484, include:

'* * * (a) written notice of the claimed violations of parole; (b) disclosure to the 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 parole. * * *'

The record in this case shows that the original probation officer assigned to supervise appellee during the probation period did not appear at the revocation hearing and that another probation officer testified as to the contents of the probation department record. The testifying officer admitted that his testimony was based only upon the probation department records; he also indicated that the entries contained in that record were made by appellee's probation officer at the time.

The determinative issue is whether the trial court, in permitting a probation officer who did not prepare the entries in the probation department record to testify as to the contents of that record, denied appellee his 'right to confront and cross-examine adverse witnesses.'

The question of confrontation presented in this case is similar to that presented in State v. Tims (1967), 9 Ohio St.2d 136, 224 N.E.2d 348. In that case, the defendant was prosecuted for statutory rape, and, at trial, a document entitled 'Report of Examination for Alleged Rape' was admitted in evidence through a clerk in the medical record room of the hospital who admitted that she had not made the examination and was not present when it was made. The question before the court in that case was 'whether the report of the examination for alleged rape was properly admitted into evidence under the provisions of Section 2317.40, Revised Code (Business Records as Evidence Act).' It was held that the Business Records as Evidence Act was not applicable. In the course of the opinion, the court commented on the right to confrontation, at page 138, 224 N.E.2d at page 350, as follows:

'One of the basic and fundamental rights guaranteed an accused by both the state and federal Constitutions is the confrontation of the witnesses against him. Section 10, Article I of the Ohio Constitution, provides that an accused has a right 'to meet the witnesses face to face.' * * *

'This right of confrontation includes the right of cross-examination of the person who is the actual witness against him. If applicable in a criminal case, the...