U.S. v. Miller, 74-2959
| Decision Date | 10 April 1975 |
| Docket Number | No. 74-2959,74-2959 |
| Parties | UNITED STATES of America, Appellee, v. Robert Lee MILLER, a/k/a Charles W. Raven, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before KOELSCH and DUNIWAY, Circuit Judges, and TAYLOR, District Judge. *
The appellant was convicted on January 19, 1972 of a felony, imposition of sentence was suspended and he was placed on probation for three years. On October 11, 1974, after a hearing, the court found that appellant had violated the terms of probation and sentenced him for a period of three years.
The question presented on this appeal is whether the admission of the hearsay testimony of the Probation Officer and the admission into evidence of unauthenticated records at the revocation hearing violated the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
The revocation hearing commenced on October 8, 1974, but because appellant's probation officer could not be sure of the dates on which appellant had committed alleged violations of the terms of his probation, the court continued the matter on its own motion to October 11, 1974, at which time the hearing resumed. At all times pertinent to the revocation hearing, the appellant was present in person and represented by counsel.
The only witness who testified at the hearing was appellant's probation officer. His testimony was in regard to what he had ascertained from state court files and from a state probation report concerning appellant. This testimony was admitted over the objection of counsel for appellant on grounds that it was hearsay. The court also admitted into evidence unauthenticated copies of state court criminal records over objection on hearsay grounds. Although these records were not authenticated, the probation officer testified that he made the Xerox copies and obtained the additional information from the court files. From this evidence, it was shown that appellant had been convicted of three criminal offenses while on probation in violation of the terms thereof. Although counsel objected to the testimony of the probation officer and the introduction of the records, appellant did not challenge the accuracy...
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