State v. Yura

• Decision Date: 17 January 1992
• Docket Number: No. 66273,66273
• Citation: 250 Kan. 198,825 P.2d 523
• Parties: STATE of Kansas, Appellant, v. Cathy S. YURA, Appellee.
• Court: Kansas Supreme Court

Page 523

825 P.2d 523

250 Kan. 198

STATE of Kansas, Appellant, v. Cathy S. YURA, Appellee.

No. 66273.

Supreme Court of Kansas.

Jan. 17, 1992.

Syllabus by the Court

1. The timing of a probation revocation hearing may cause a defendant to make a strategic choice between conflicting constitutional rights. Disposition of the criminal charge that provides the basis of the motion for revocation of probation prior to the probation revocation hearing is not constitutionally mandated.

2. Probation is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The decision to postpone the revocation proceeding until after trial of the criminal charge that provides the basis for the motion to revoke probation should be left to the sound discretion of the trial court.

3. Because relevant written statements made under oath are admissible under K.S.A.1990 Supp. 22-3716(2) in probation revocation hearings, such statements are a K.S.A.1990 Supp. 60-460(b) exception to the inadmissibility of hearsay. The trial court is vested with discretion in admitting such statements.

4. In a probation revocation proceeding the trial court must balance the probationer's right to confront an adverse witness against the grounds asserted by the State for not requiring confrontation. Two factors to be evaluated in examining the State's basis for dispensing with confrontation are: (1) the explanation the State offers of why confrontation is undesirable or impractical, and (2) the reliability of the evidence which the State offers in place of live testimony. (Adopting the rationale of United States v. Bell, 785 F.2d 640 [8th Cir.1986].)

5. In a probation revocation hearing, the admission of affidavits constituting relevant written statements made under oath stating the results of a laboratory test is authorized by K.S.A.1990 Supp. 22-3716(2). Under the facts of this case, the admission of such an affidavit from an out-of-state chemist does not violate the probationer's right to confront and cross-examine witnesses.

Kerwin L. Spencer, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him, on the brief, for appellant.

Charles E. Watson, Wellington, argued the cause and was on the brief, for appellee.

SIX, Justice:

This is a probation revocation, first-impression case. We are reviewing (1) a ruling that criminal charges used as a basis for probation revocation must be resolved prior to a probation revocation proceeding, and (2) the trial court's refusal to admit laboratory test results under K.S.A.1990 Supp. 22-3716(2).

The State of Kansas filed a motion to revoke the probation of Cathy S. Yura, alleging Yura had violated two conditions of her probation by providing alcohol to minors and testing positive for marijuana use. The trial court refused to consider the State's evidence and dismissed the motion to revoke probation.

Our jurisdiction is under K.S.A. 22-3602(b)(3). The State has appealed on a question reserved.

We reverse and remand.

Facts

Yura pled guilty to one count of possession of marijuana in violation of K.S.A.1990 Supp. 65-4127b(a)(3). She was placed on probation for two years. General probation conditions required Yura to obey all federal, state, municipal, and county laws and ordinances and not to possess, use, or traffic in controlled substances. A special condition also prohibited Yura from possessing or consuming any controlled substance. Yura was required to submit to blood/urine tests upon request of the court services officer.

The State filed a motion to revoke probation, alleging positive urine tests showing cannabinoids (marijuana). The motion also alleged that Yura had provided beer to minors, a new charge upon which she had been arrested.

A court services officer requested a full drug screen. An initial urine test was positive for cannabinoids; consequently, a second urine test was requested. The second urine sample was collected at a hospital in Wellington, Kansas, and sent to a laboratory for testing. The second urine test result also was positive for cannabinoids.

Yura moved to strike the revocation allegation of providing beer to minors. She informed the court that criminal charges on that ground were set for a jury trial at a later date. Yura asserted that probation revocation on the basis of a new crime was premature before conviction of that crime. Yura contended that by proceeding with the revocation hearing she would be denied her right to a jury trial and a mere accusation prior to conviction was an inappropriate ground upon which to revoke probation.

The State responded, informing the court that the jury trial had been postponed due to a busy court calendar. The State asserted that a conviction was only one way to prove a probation violation. Another method would be for the State to introduce sufficient evidence for the court to find that Yura had violated the law.

Rulings of the Trial Court

The trial court granted Yura's motion to strike the providing beer to minors allegation, reasoning that an action to revoke probation is inappropriate and premature when the alleged crime providing the basis for the revocation proceeding is set for a jury trial.

The State proceeded to present evidence based on positive urine tests for cannabinoids. The court services officer testified that a urine sample was sent to a laboratory for testing. She identified a laboratory report she had received as a correct copy of the test result.

The State attempted to introduce the laboratory test result under K.S.A.1990 Supp. 22-3716. The State's exhibit consisted of the affidavit of Donald W. Long, Director of Toxicology at Roche Biomedical Laboratories. In his affidavit Long averred that qualified personnel had performed a gas chromatograph mass spectrometry test on the numbered urine sample (assigned to Yura) and that the result was positive for cannabinoids. The laboratory report and Long's vitae were attached to the affidavit. Long was not present to testify.

Yura objected to the exhibit. She asserted that the affidavit was hearsay. She also argued that admission of the affidavit would violate her right to confront witnesses against her.

The State responded that the urinalysis was conducted in St. Joseph, Missouri, and that it was impractical to bring someone from St. Joseph to testify every time a laboratory report reflected a positive result. (The laboratory report states the test was conducted in Kansas City, Missouri.) The State suggests that limited funding for such testing is the reason the legislature enacted K.S.A.1990 Supp. 22-3716(2), which allows written statements in probation revocation hearings. The State asked the trial court to review the exhibit. The trial court refused to admit the exhibit on the grounds the exhibit would deny Yura's right to confront witnesses against her.

The State then proffered the testimony of Sandra Hodgson, the person at the hospital who handled Yura's urine specimen. The proffer indicated that Hodgson would testify that she observed Yura provide the specimen, took it directly from Yura, had Yura initial it, packaged the sample, made sure it was not tampered with, and delivered the sample to a courier who transported it to the Roche Biomedical Laboratories.

Probation Revocation Prior to Trial

The State contends the trial court erred in striking the allegation that Yura violated her probation by violating the law, i.e., by committing the new crime of providing beer to minors. Because a probation violation may be proved by the lesser preponderance of the evidence standard, rather than beyond a reasonable doubt, the State argues there is no need to wait for conviction. The State expresses its interest in putting probation violators in jail as soon as possible due to their history of criminal activity.

Yura emphasizes that no Kansas appellate cases hold that probation may be revoked for an alleged commission of a crime before the probationer has been tried for the new offense. She declares that the trial court did not abuse its discretion in granting her motion to strike.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court set forth the minimum due process requirements in revoking parole. The Court reasoned that revocation of parole is not part of criminal prosecution and, thus, the full panoply of rights due in a criminal prosecution is not applicable to parole revocation. 408 U.S. at 480, 92 S.Ct. at 2599.

The Supreme Court extended the minimum requirements of due process in Morrissey to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973).

We have held that K.S.A.1990 Supp. 22-3716 governs revocation of probation proceedings and satisfies the requirements of Gagnon. State v. Rasler, 216 Kan. 292, 294-95, 532 P.2d 1077 (1975).

K.S.A.1990 Supp. 22-3716 provides that the defendant may be arrested for a probation violation at any time during probation. Upon arrest the defendant shall be brought before the trial court without unnecessary delay for a hearing on the violation. The State bears the burden of establishing the violation by a preponderance of the evidence. Rasler, 216 Kan. at 295, 532 P.2d 1077.

In Rasler, we reasoned that under K.S.A. 22-3716, probation could be revoked based upon commission of another crime even if the defendant was never charged with the crime or was charged, but later acquitted. 216 Kan. at 295, 532 P.2d 1077.

In State v. Woods, 215 Kan. 295, 524 P.2d 221 (1974), Woods was convicted of first-degree robbery and placed on probation. While on probation, Woods was convicted of selling marijuana. Proceedings were commenced to revoke his probation. The trial court revoked probation while his appeal from the marijuana conviction was pending. Woods asserted error in revoking his probation on the basis of a state law violation that was on appeal. Woods...