Wortham v. State

• Decision Date: 19 June 2008
• Docket Number: No. RE-2006-1100.,RE-2006-1100.
• Citation: 2008 OK CR 18,188 P.3d 201
• Parties: Christopher WORTHAM, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

188 P.3d 201

2008 OK CR 18

Christopher WORTHAM, Appellant v. The STATE of Oklahoma, Appellee.

No. RE-2006-1100.

Court of Criminal Appeals of Oklahoma.

June 19, 2008.

An Appeal from the District Court of Oklahoma County; the Honorable Jerry D. Bass, District Judge.

Melissa French, Assistant Public Defender, Oklahoma City, OK, for defendant in district court.

Jimmy Harmon, Assistant District Attorney, Oklahoma City, OK, for the State in district court.

Kim Chandler Baze, Assistant Public Defender, Oklahoma City, OK, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Keeley L. Harris, Assistant Attorney General, Oklahoma City, OK, for the State on appeal.

OPINION

LUMPKIN, Presiding Judge.

¶ 1 The Appellant, Christopher Wortham, has appealed to this Court from an order of the District Court of Oklahoma County, entered by the Honorable Jerry D. Bass, District Judge, revoking Appellant's suspended sentence in Case No. CF-1995-2711. In that case, Appellant entered a plea of guilty, pursuant to a plea agreement, to the offense of Robbery With a Firearm. He was convicted and sentenced to a term of twenty-five (25) years, with all except the first eight (8) years suspended under rules and conditions of probation.

¶ 2 On June 5, 2006, the State filed an application to revoke Appellant's suspended sentences alleging that he violated probation by committing the new crimes of ten counts of Rape in the First Degree, and four counts of Sexual Abuse of a Child, as charged in Oklahoma County District Court Case No. CF-2005-6074.¹ On October 6, 2006, the revocation hearing was held before Judge Bass.

¶ 3 At the revocation hearing, the only evidence offered by the State was the preliminary hearing transcript from Case No. CF-2005-6074, and State's Exhibit # 1, a DNA paternity report. The DNA was from a baby of one of the victims who got pregnant when she was eleven or twelve years old, which established a "99.99 something" percent probability that Appellant was the father.

¶ 4 Counsel for Appellant objected to the DNA report on confrontation grounds. Judge Bass denied the objection stating that hearsay is admissible, and is competent evidence as against Appellant. Counsel for Appellant also objected to the use of the preliminary hearing transcript from Case No. CF-2005-6074 on several different grounds. As reflected in the transcript, Appellant's objection pertinent to this appeal stated that the "[p]reliminary hearing judge, Judge Hubbard, was not allowed — was the judge allowed to see and hear the witnesses, is not allowed to make a determination about voracity [sic] wherein this particular hearing you are. And we believe it would be necessary for you to see and hear these witnesses, specifically the two victims that were called, so that you can determine the person's voracity [sic] because you are allowed to do that at this hearing." Judge Bass asked Appellant's counsel if she cross-examined both witnesses at the preliminary hearing in Case No. CF-2005-6074, and Appellant's counsel responded that she did.

¶ 5 The State noted it was the facts elicited at the preliminary hearing and not the magistrate's decision that were being offered into evidence at this revocation hearing. The State also noted the witnesses could have been subpoenaed, but were not since they were cross-examined with a similar motivation at the preliminary hearing in Case No. CF-2005-6074. Judge Bass denied Appellant's objections, considered the evidence offered by the State, found Appellant had violated probation as alleged, and revoked his seventeen year suspended sentence in full.

¶ 6 Appellant brings this appeal asserting one proposition of error. Appellant contends the trial court's reliance on a transcript of testimony and a paternity report, absent a showing of witness unavailability, violated Mr. Wortham's fundamental right to confront witnesses and did not constitute sufficient competent evidence to support the revocation order.

¶ 7 As a preliminary matter, one of the State's arguments needs to be addressed. The State argues that Appellant objected to admission of the preliminary hearing transcript and paternity report in the District Court on different grounds than he is raising on appeal. The State claims Appellant objected that the revocation hearing judge was permitted to make determinations regarding witness veracity whereas a preliminary hearing judge cannot. While Appellant's objection may not have been stated as well as it could have been, it includes more than what the State is claiming. Defense counsel also stated "we believe it would be necessary for you to see and hear these witnesses, specifically the two victims that were called, so that you can determine the person's voracity [sic]." When she made this statement, defense counsel was complaining of not being able to confront the witnesses in the crucible of cross-examination before the trier of fact, a confrontation issue. See Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004). We find defense counsel adequately preserved a confrontation objection, the same grounds being raised on appeal. Young v. State, 2000 OK CR 17, ¶ 94, 12 P.3d 20, 45.

¶ 8 In support of his arguments in this appeal, Appellant relies extensively on Montemayor v. State, 1988 OK CR 285, 766 P.2d 1000, contending this case is very similar to, and controlled by, Montemayor. Montemayor can be distinguished, however, and is not applicable to the facts of this case. In Montemayor, the only exhibit admitted into evidence by the State was a Department of Corrections ("DOC") file on the defendant containing a probation violation report prepared by the defendant's probation officer. Id. ¶ 2, 766 P.2d at 1001. The defendant's probation officer did not testify at the revocation hearing, and the only witness called by the State was another probation officer who had no firsthand knowledge of the facts set out in the report and did not know or recognize the defendant. Id. ¶¶ 2, 4, 766 P.2d at 1001. The defendant was never allowed to confront his probation officer, the person who had prepared the DOC file and who originated the sole allegations forming the basis for the revocation. Id. ¶ 4, 766 P.2d at 1001. Under such facts, a probation officer would determine when a suspended sentence should be revoked rather than a judicial officer. Id. ¶ 5, 766 P.2d at 1001. As the United States Supreme Court held, the revocation of parole or probation should be made by a "neutral and detached" hearing body that is an "independent decisionmaker" not directly involved in the case. Morrissey v. Brewer, 408 U.S. 471, 485-86, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (parole revocations); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973) (adopting Morrissey in probation revocations).

¶ 9 In this case, the decision to revoke Appellant's probation was made by Judge Bass, a neutral and detached judicial officer. Rather than simply presenting a DOC file as in Montemayor, the State presented the DNA paternity report and the testimony and evidence contained in the preliminary hearing transcript in Oklahoma County District Court Case No. CF-2005-6074. Judge Bass considered that testimony and evidence in making his decision to revoke Appellant's suspended sentence. Appellant acknowledged he was able to confront and cross-examine the witnesses who testified concerning the facts and evidence at that preliminary hearing, and who originated the allegations forming the basis for Appellant's revocation. Cf. Montemayor, ¶ 4, 766 P.2d at 1001. Judge Bass considered the testimony and evidence contained in the preliminary hearing transcript, and not just the decision to bind Appellant over for trial, thus distinguishing Appellant's case from those cases where the sole evidence is a non-final Judgment and Sentence, with no facts and evidence relating to that Judgment and Sentence being used to revoke the suspended sentence. See Pickens v. State, 1989 OK CR 58, ¶¶ 11-12, 779 P.2d 596, 598; Cheadle v. State, 1988 OK CR 226, ¶ 5, 762 P.2d 995, 996. Thus, the preliminary hearing transcript provided competent evidence upon which Appellant's suspended sentence could be revoked. 22 O.S.Supp.2005, § 991b(A).

¶ 10 As Appellant notes, this Court has issued some conflicting decisions concerning whether the State can introduce the transcript of a previous judicial hearing into evidence in a revocation hearing without showing that the witnesses who testified at that previous hearing are unavailable. In Garcia v. State, No. RE-2006-885 (Okl.Cr. June 29, 2007) (not for publication), and Gilbert v. State, 1988 OK CR 283, 765 P.2d 807, this Court allowed admission of transcripts into evidence at a revocation hearing without a showing the witnesses were unavailable. In Allison v. State, 1977 OK CR 130, ¶¶ 6-13, 562 P.2d 883, 885-86; Woods v. State, 1974 OK CR 162, ¶ 12, 526 P.2d 944, 947; and Moore v. State, 1973 OK CR 141, ¶ 9, 507 P.2d 1290, 1292, this Court required the State to prove that witnesses were unavailable before transcripts of their previous testimony could be admitted in a revocation hearing. We find that our decisions in Garcia and Gilbert are the more persuasive authority that transcripts of previous judicial hearings, where the defendant was allowed to confront and cross-examine the witnesses, may be admitted into evidence in a revocation hearing without showing that the witnesses who testified at the previous hearing are unavailable. Allison, Woods, and Moore should be overturned insofar as they are inconsistent with our finding today.

¶ 11 A probationer is provided the statutory right to confront the witnesses against him or her in a revocation hearing. 22 O.S.Supp.2005, § 991b(D) (a "person whose suspended sentence is being considered for revocation at the hearing shall have the right ... to be confronted by the witnesses against the...