State v. Trevor M.

• Decision Date: 16 October 2014
• Docket Number: 32,905.
• Citation: 341 P.3d 25
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. TREVOR M., Child–Appellant.
• Court: Court of Appeals of New Mexico

341 P.3d 25

STATE of New Mexico, Plaintiff–Appellee

v.TREVOR M., Child–Appellant.

32,905.

Court of Appeals of New Mexico.

Oct. 16, 2014.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Law Offices of the Public Defender, Jorge A. Alvarado, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Child appeals the revocation of his probation. We conclude that Child had a statutory right to confront the witnesses against him that was violated when the district court permitted a witness to testify by telephone without determining that telephonic testimony was necessary to further an important public interest. We also conclude that the admissible evidence was insufficient to support a conclusion that Child willfully violated his conditions of probation. We reverse and remand.

BACKGROUND

{2} Child pled guilty to residential burglary and was sentenced to supervised probation for two years. Roughly six months later, Child admitted that he violated the conditions of probation and was sentenced to one year commitment to the Children, Youth and Families Department, which was suspended in favor of a new two-year term of supervised probation. One of the terms of the probation agreement signed by Child required him to “[a]ttend and successfully complete an [o]ut[-]of[-h]ome [p]lacement.” Child was placed with New Visions Group Home in Clovis, New Mexico.

{3} After New Visions staff suspected Child of taking drugs or alcohol, they decided to discharge him from the program. While Child was being discharged, he walked out of the group home, and a warrant was issued for his arrest. Child was arrested nine days later. The State filed a petition to revoke Child's probation based on his failure to complete the out-of-home placement. An adjudicatory hearing on the petition was held before a special master. The State presented testimony of a social worker at New Visions Group Home and the juvenile probation officer (JPO) assigned to Child's case. The social worker testified by telephone over Child's objection.

{4} The special master found that Child had willfully violated the probation agreement by failing to successfully complete the out-of-home placement, and the district court adopted the special master's findings and revoked Child's probation. Child's exceptions to the special master's report were denied. Additional facts are provided as necessary to our discussion.

DISCUSSION

{5} Child makes four arguments for reversal of the district court's ruling and/or for a new hearing. First, Child maintains that his right to confront witnesses against him was violated when the social worker testified by telephone. See U.S. Const. amends. VI, XIV. Second, he contends that the State failed to demonstrate that he willfully violated his probation conditions. Third, he argues that the district court erred in admitting hearsay testimony by both of the State's witnesses. Finally, Child argues that the hearing was faulty because he did not consent to the appointment of a special master as required by the Children's Code. We conclude that Child's confrontation rights were violated and that there was insufficient evidence supporting the special master's determination that Child willfully violated his probation conditions. We address Child's evidentiary arguments in our discussion of the sufficiency of the evidence. Because it was not preserved for appeal, we do not consider Child's argument as to the appointment of a special master. We reverse and remand for a new hearing.

{6} “The ... issue of whether the admission of evidence violates an accused's rights under the [Sixth Amendment] is a question of law which is reviewed de novo on appeal.” In re Darcy S., 1997–NMCA–026, ¶ 13, 123 N.M. 206, 936 P.2d 888. Child argues that (1) the Sixth Amendment's guarantee of the right to confrontation applies to juvenile probation revocation hearings; (2) he is entitled to due process of law—including confrontation of witnesses—by the Fourteenth Amendment; and (3) regardless of whether the Sixth Amendment applies here as a matter of constitutional law, the Legislature has guaranteed the right to confrontation through NMSA 1978, Section 32A–2–24(B) (2009). See U.S. Const. amends. VI, XIV. Because we agree with the latter argument, we need not address the first two.

{7} It is well established that juveniles have the same rights at trial as adults, including the “right to notice of charges, to counsel, to confrontation and to cross-examination of witnesses, and to the privilege against self-incrimination[.]” State v. Rudy

B.,

2010–NMSC–045, ¶ 55, 149 N.M. 22, 243 P.3d 726 (emphasis added) (citing In re Gault, 387 U.S. 1, 33–34, 41, 55–56, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) ); see NMSA 1978, § 32A–2–14(A) (2009) (“A child subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code, including rights provided by the Delinquency Act [.]”); § 32A–2–1 (2007) (stating that “Chapter 32A, Article 2 NMSA 1978 may be cited as the ‘Delinquency Act.’ ”); Form 10–424 NMRA (“Advice of rights by judge” form listing the rights a child gives up by entering a plea or consent decree, including “the right to confront the witnesses against the child and to cross-examine them”). Unlike adult probation revocations, which are decidedly different from trials, “[a]n allegation of a juvenile probation violation is treated as if it were a charge brought in a delinquency proceeding.” State v. Erickson K., 2002–NMCA–058, ¶ 15, 132 N.M. 258, 46 P.3d 1258 ; see State v. Guthrie, 2011–NMSC–014, ¶ 10, 150 N.M. 84, 257 P.3d 904 (discussing adult probation revocation hearings and stating that “[b]ecause loss of probation is loss of only conditional liberty, ‘the full panoply of rights due a defendant in a [criminal trial] do [ ] not apply’ ” (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) )). This approach to probation revocation hearings is reflected in the Children's Code and Children's Court rules. For instance, Section 32A–2–24(B) provides that “proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition.” Similarly, Rule 10–261(C) NMRA provides that “[p]roceedings to revoke probation shall be conducted in the same manner as proceedings on petitions alleging delinquency. The child whose probation is sought to be revoked shall be entitled to all rights that a child alleged to be delinquent is entitled to under law and these rules[.]” The effect of this language is plain: since juveniles have the right to confront witnesses during delinquency proceedings, they must be accorded that right in probation revocation hearings.

{8} The State concedes that “[b]y virtue of the [fact that] Section 32A–2–24 [ (B) ] [provides] that a juvenile has the same rights at a probation revocation hearing as an adjudication of delinquency, Child undoubtedly had a statutory right to face-to-face confrontation at the hearing.” The State maintains, however, that this Court should not address Child's statutory argument because Child failed to preserve it. In response to the State's motion for permission for its witness to testify by telephone, Child filed a written objection citing his right to confront witnesses under the Sixth Amendment. The objection did not mention the Children's Code or Section 32A–2–24(B). The district court granted the State's motion without a hearing. At the probation revocation hearing before the special master, Child objected again on confrontation grounds but did not specify the basis for the right asserted. The State argues that because Child did not cite Section 32A–2–24(B), his objection was insufficient to alert the district court or special master to the argument that his right to confrontation derives from statute. See State v. Varela, 1999–NMSC–045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (“In order to preserve an error for appeal, it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then be invoked.” (internal quotation marks and citation omitted)). We disagree.

{9} Here, inherent in Child's invocation of the Sixth Amendment were two questions: (1) whether Child had a right to Sixth Amendment-like confrontation in a probation revocation hearing, and (2) whether the right would be violated by telephonic testimony. In our view, it was thus not necessary to refer specifically to the statute to raise the first question because, although in this context the specific source of the right is statutory, the nature and scope of the right is the same as that under the Sixth Amendment.

{10} The State cites State v. Jason F., 1998–NMSC–010, ¶¶ 8–9, 125 N.M. 111, 957 P.2d 1145 for the proposition that “[w]hen a statute or rule provides greater protection than the constitution, an appellant does not fairly invoke a ruling on the greater protection by exclusively arguing a constitutional violation.” Jason F. is inapposite. In that case, the child objected to appointment of a special master on constitutional grounds. Id. ¶ 8. On appeal, he argued that appointment of the special master was error because the appointment did not comply with the rule governing such matters.Id. ¶ 7. The Court held that “[the child] did not invoke a ruling on the application of [the rule]” and therefore the issue was not preserved. Id. ¶ 9. The distinguishing feature between Jason F. and the present case is that the child's constitutional objection at trial was entirely unrelated to his rule-based argument on appeal. In contrast, here, the right provided by Section 32A–2–24(B) is the right guaranteed by the Sixth Amendment and, consequently, the analysis of an...