Wink v. State

• Decision Date: 01 September 1988
• Docket Number: No. 68,68
• Citation: 76 Md.App. 677,547 A.2d 1122
• Parties: Edward WINK, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 677

76 Md.App. 677

547 A.2d 1122

Edward WINK, Jr. v. STATE of Maryland.

No. 68, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Oct. 4, 1988.

Nancy S. Forster, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Cathleen Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Richard A. Cooper, State's Atty. for Charles County, LaPlata, on the brief), for appellee.

Submitted before MOYLAN, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

Edward Wink, Jr., appellant, pled guilty in the Circuit Court for Charles County to distribution of PCP and was sentenced to four years imprisonment. Upon appellant's motion for modification of sentence, execution of the unserved portion of the sentence was subsequently suspended in favor of three-year supervised probation.

Appellant was charged with violating Rule 8 of his probation, which required that he not "illegally possess, use or sell any narcotic drug, controlled dangerous substance, or related paraphernalia." At the revocation hearing, the State presented evidence that, upon execution of a search warrant at appellant's home, the following items were seized: from a kitchen cabinet, two bottles of parsley flakes; from the kitchen trash can, an empty parsley flake bottle, a vanilla extract bottle, and a sandwich bag with parsley flake residue; from the refrigerator, a glass jar containing several foil-wrapped packets of parsley, and two plastic film cannisters filled with parsley flakes; from the master bedroom, a set of scales, several cut squares of aluminum foil, and a C & P Telephone bill addressed to the appellant. The State also presented expert testimony that parsley flakes are commonly used as a vehicle for, or diluent of, liquid PCP, and that individual quantities of PCP are commonly distributed as foil-wrapped packets of PCP-laced parsley.

The court concluded that appellant had violated his probation by possessing drug paraphernalia, revoked appellant's probation, and reimposed two years of the original sentence, with credit for eighteen months already served. Appellant presents two questions on appeal from that judgment:

1. Did the trial court err in applying an inappropriate standard in determining that appellant violated his probation?

2. Was the evidence insufficient to establish that appellant violated a condition of his probation?

I.

At the conclusion of the State's case, appellant's counsel moved for judgment of acquittal. During his argument on the motion, he stated that the burden on the prosecution was "to prove every element to a reasonable certainty. That is the test by a reasonable certainty." Interrupting counsel, the court stated that the test was "by a preponderance of the evidence." Undeterred counsel argued:

No, Sir, reasonable certainty. That is the case law dealing with violation of probations, which is a higher standard than preponderance of the evidence and some people think it is [a] higher than clear and convincing.

It is definitely short of proof beyond a reasonable doubt but it is certainly more than by a preponderance of the evidence.

The motion was denied and appellant rested without putting on a defense. Thereafter, appellant "renewed" his motion for judgment of acquittal and, after argument, during which no further mention of the standard of proof was made, the matter was presented to the court for decision. The court ruled:

I think that given the testimony in its entirety as to what was located in the house, I conclude that the State has shown that there was a violation of probation in that Mr. Wink did have in his possession controlled paraphernalia and I find him to be in violation of his probation on that basis.

Appellant contends that the court applied the wrong standard of proof. He claims that the court used the "preponderance of the evidence" standard instead of the "reasonable certainty," standard and, because "reasonable certainty" is a higher standard than "preponderance of the evidence", his constitutional right to due process was violated. Although we, too, assume that the court applied the "preponderance" standard, we will nevertheless affirm the judgment. We do not agree that "reasonable certainty" is a more stringent standard of proof than "preponderance of the evidence."

The nature of probation and of revocation proceedings is well-settled in Maryland. The Court of Appeals, in Smith v. State, 306 Md. 1, 6-7, 506 A.2d 1165 (1986), quite recently has summarized their characteristics:

Probation is a matter of grace which is in effect a bargain made by the people with the malefactor that he may be free as long as he conducts himself in a manner consonant with established communal standards and the safety of society. Donaldson v. State, 305 Md. 522, 531, 505 A.2d 527 (1986) (quoting Scott v. State, 238 Md. 265, 275, 208 A.2d 575 (1965).) See also Matthews v. State, 304 Md. 281, 292-93, 498 A.2d 655 (1985). Accordingly, the procedural protections given a probationer are not the same as those afforded a defendant at a criminal trial, and probation may be revoked by a trial court if it is reasonably satisfied that a violation of a condition of probation has occurred. Howlett v. State, 295 Md. 419, 456 A.2d 375 (1983); Hutchinson v. State, 292 Md. 367, 369, 438 A.2d 1335 (1982); Dean v. State, 291 Md. 198, 202, 434 A.2d 552 (1981).

The State has the burden of proving that a violation of probation has occurred. Coles v. State, 290 Md. 296, 429 A.2d 1029 (1981); Humphrey v. State, 290 Md. 164, 428 A.2d 440 (1981); Fuller v. State, 64 Md.App. 339, 349, 495 A.2d 366 (1985), modified on other grounds, 308 Md. 547, 520 A.2d 1315 (1987).

Although we have interpreted "reasonably satisfied" to require the establishment of the fact of a violation "... with enough reasonable certainty--but not beyond a reasonable doubt--to satisfy the conscience of the court.... If the facts incline a reasonable and impartial mind to the belief that the probationer has violated a term of his probation, that is sufficient to revoke or modify," (citations omitted) Herold v. State, 52 Md.App. 295, 302, 449 A.2d 429 (1982), we are not aware of any case decided in this jurisdiction which has considered whether it is a more or less stringent standard than "preponderance of the evidence." Other jurisdictions employing the same, or a similar, standard of proof in revocation proceedings have considered the issue, however, and those jurisdictions have defined "reasonable certainty" or "reasonably satisfied" as requiring less evidence than a preponderance. See e.g., Armstrong v. State, 294 Ala. 100, 312 So.2d 620, 623 (1975) (less than a preponderance); State v. Ford, 707 P.2d 16, 19 (Mont.1985) ("All that is required is ... that the judge is reasonably satisfied." (Emphasis in original)); State v. Brinson, 248 Ga. 380, 283 S.E.2d 463, 465 (1981) ("Georgia adheres to the "slight evidence" rule in probation revocation proceedings."); State v. Brusenhan, 78 N.M. 764, 438 P.2d 174, 176 (App.1968). (Standard is akin to Georgia's standard of "slight evidence"); State v. Burkman, 281 N.W.2d 442, 443 (S.D.1979) ("Four standards of proof have been adopted by the various jurisdictions in revocation hearings: 1) reasonably satisfied; 2) a preponderance; 3) clear and convincing; and 4) beyond a reasonable doubt." (citations omitted)). We find these cases persuasive.

Moreover, we think the nature of revocation proceedings militate in favor of the conclusion that "reasonably satisfied" is no more stringent a standard than "preponderance." The proceedings are informal, see Scott v. State, 238 Md. 265, 271, 208 A.2d 575 (1965); they are not subject to all of the limitations and restrictions which apply to a criminal trial, Edwardsen v. State, 220 Md. 82, 88, 151 A.2d 132 (1959) and a probationer does not enjoy the procedural rights attendant to a criminal trial. See Smith, 306 Md. at 6, 506 A.2d 1165. Evidence inadmissible in a criminal trial may be admissible in revocation proceedings, See State v. Fuller, 308 Md. 547, 553, 520 A.2d 1315 (1987) (reasonably reliable hearsay) and Chase v. State, 309 Md. 224, 251, 522 A.2d 1348 (1987) (evidence obtained as a result of an illegal search and seizure). And, of course, proof beyond a reasonable doubt is not required. Herold, supra. The nature of probation inclines us to the same conclusion; it is, after all, a discretionary matter--a matter of grace, not entitlement. Smith, supra. Finally, the context in which the Courts have stated the standard is, we believe, consistent with the view we take. See, e.g., Dean v. State, 291 Md. at 202, 434 A.2d 552, in which the Court of Appeals commented:

The...