Swackhammer v. State, 90-88

• Decision Date: 09 April 1991
• Docket Number: No. 90-88,90-88
• Citation: 808 P.2d 219
• Parties: Jason SWACKHAMMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 219

808 P.2d 219

Jason SWACKHAMMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-88.

Supreme Court of Wyoming.

April 9, 1991.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, David Gosar, Assistant Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Deborah Gabriel, Student Director, and Donna A. Murray, Student Intern., for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Donald G. Moore, Legal Intern., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

THOMAS, Justice.

In this appeal, Jason Swackhammer challenges the sufficiency of the evidence presented at a probation revocation hearing to justify the order revoking his probation. A collateral issue is raised attacking the use of testimony reporting hearsay at the revocation hearing. In addition, the justification for revocation because of Swackhammer's departure from the state of Wyoming while awaiting transportation to the state penitentiary is challenged. We hold that no violation of Swackhammer's rights of due process as a probationer occurred because of the testimony reporting hearsay and that the evidence was sufficient to justify the revocation of his probation for the commission of a new offense. Since probation properly was revoked on the premise of a new offense, we do not consider the question of whether Swackhammer had permission to leave the state. We affirm the order of the district court revoking Swackhammer's probation.

In his Brief of Appellant, Swackhammer states the following issues:

"I. Whether the district court erred by allowing hearsay testimony at defendant's probation revocation hearing on the issue of whether a condition of probation was violated.

"II. Whether the district court abused its discretion by determining the state had met its burden of proof when the evidence clearly showed that the state had not met the burden established by the Wyoming courts."

The State of Wyoming, in its Brief of Appellee, sets forth the following issue:

"Whether the district court properly exercised its discretion in determining sufficient evidence was presented at trial to justify appellant's probation revocation?"

On October 20, 1989, the district court sentenced Swackhammer to a term of not less than two nor more than three years in the Wyoming State Penitentiary. The sentence was imposed after Swackhammer entered a plea of guilty to one count of larceny in violation of § 6-3-301(a), W.S.1977 (June 1988 Repl.). All but 30 days of Swackhammer's sentence was suspended by the trial court, and he was required to serve two years on probation after his release from the penitentiary. There were several conditions attached to the probation. Among those conditions were requirements that he obey the rules and regulations of the Wyoming Department of Probation and Parole; that he obey the law; and that he lead a worthy life during the period of probation.

On December 4, 1989, the Department of Probation and Parole filed a petition for revocation of Swackhammer's probation and requested the issuance of a bench warrant. The grounds stated for seeking revocation were that Swackhammer had fled the jurisdiction of the court prior to beginning service of the thirty day penitentiary sentence and that he was alleged to have committed a second grand larceny prior to leaving the state. The bench warrant was issued, and Swackhammer was arrested and brought before the court.

A revocation hearing was conducted at which the State produced evidence pertaining to the alleged larceny and Swackhammer's flight from the state. With respect to the larceny, the evidence showed that, on November 5, 1989, a resident of Evansville contacted the Evansville Police Department about some coin packaging materials he had found near a local river. The police retrieved the packaging materials, which were determined to be proof packages for uncirculated coins. Some of those contained address labels for C.K. Peterson at Evansville. Police officers then questioned Bryan Peterson, C.K. Peterson's son, about the coins. Bryan Peterson reported that about one-half of his parents' coins, which had been kept in a suitcase in a bedroom of their home, were missing and had been stolen. Further investigation by the officers disclosed that Swackhammer had recently purchased items at a local convenience store using uncirculated coins.

After speaking a second time with Bryan Peterson, the officers endeavored to locate Swackhammer as a suspect in the larceny case. They were unable to find him because Swackhammer had left town with two runaway girls on his way to Arizona. After the parents of the girls contacted police officers, Swackhammer was apprehended near Las Vegas, New Mexico by the New Mexico State Police.

Swackhammer testified at the revocation hearing and explained that there had been an occasion when he had watched Bryan Peterson force the door of his parents' bedroom, retrieve the suitcase from underneath the bed, open it, and remove coins that Bryan had then spent at a convenience store. Swackhammer stated that the incident leading to the accusation against him occurred later. On that occasion, Bryan again entered the Petersons' bedroom, after forcing the door, and removed some coin packets from the same suitcase. Bryan was going to break open the packets in the bedroom but, when he hesitated to do that, Swackhammer told him that he and Jessie Warberg would take the plastic cases down to the river and break them open for him. After this was accomplished, Swackhammer went to the convenience store and spent some of those coins. Swackhammer also testified that he was under the impression that the coins he received belonged to Bryan Peterson. He denied that the coin packets he broke open were marked with C.K. Peterson's name.

The trial court ruled that Swackhammer had violated his probation by leaving the jurisdiction with stolen property and two juvenile girls and also by committing a new larceny. The court revoked Swackhammer's probation and reinstated his previous sentence of not less than two nor more than three years in the penitentiary. Swackhammer challenges the sufficiency of the evidence to revoke his probation on either of the grounds alluded to by the trial court. We are satisfied, and hold, that there was sufficient evidence to revoke Swackhammer's probation on the ground of the new larceny, and we do not need to resolve the question of whether Swackhammer received permission to leave the state as he claimed.

We first consider Swackhammer's contention that his due process right to confront witnesses against him was violated when the court admitted testimony by police officers that reported hearsay. The United States Supreme Court has ruled that a probationer does have a right to confront witnesses against him in a probation revocation proceeding, and we have recognized and applied that ruling. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court of the United States held that, upon revocation of parole, the parolee is entitled to certain due process protections. Procedurally, those protections include the right to a preliminary hearing on probable cause to revoke parole followed by a final, less summary, revocation hearing. At each hearing stage, a parolee has a right to notice of the alleged violations, the right to appear and present evidence in his own behalf, a conditional right to confront adverse witnesses, a right to a hearing by an independent decision maker, and the right to receive a written report of the hearing. Morrissey. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court extended the same due process protections to probationers in probation revocation proceedings.

These protections have been incorporated into Wyoming's statutes and applicable court rules. In Rule 33(f), W.R.Cr.P., the right to a hearing is recognized:

"(f) Revocation of probation.--The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed."

The Morrissey/Gagnon protections are codified in § 7-13-408, W.S.1977 (June 1987 Repl.), as applied to administrative revocation proceedings. The statute includes, among the protections furnished, a conditional right to confront the witnesses against the probationer:

"(c) With respect to any hearing pursuant to this section, the probationer, parolee or conditional releasee:

* * * * * *

"(iii) Shall have the right to confront and examine any person who has made allegations against him, unless the hearing officer determines that the confrontation would present a substantial present or subsequent danger of harm to the person; * * *."

The protections articulated in § 7-13-408, W.S.1977 (June 1987 Repl.), are intended to apply in administrative revocation proceedings but, by decisions of this court, they have been extended, with the exception of the separate preliminary hearing requirement, to proceedings in which the court acts on a petition for revocation filed by a county attorney or the Board of Probation and Parole. Mason v. State, 631 P.2d 1051 (Wyo.1981); Weisser v. State, 600 P.2d 1320 (Wyo.1979); Knobel v. State, 576 P.2d 941 (Wyo.1978). ¹ See Cooney v. Park County, 792 P.2d 1287 (Wyo.1990).

Swackhammer claims that his due process right of confrontation was violated when testimony containing hearsay was used against him at the probation revocation hearing. During the course of that hearing, one of the officers who investigated the alleged larceny of the rare coins testified, over an objection by counsel for Swackhammer, as follows:

"Q. What happened then?

"A. I contacted Bryan Peterson, Jason Swackhammer, Jessie Warberg at the residence, spoke with Bryan Peterson, son of ...