Anaya v. State

Manoukian, J.,

with whom Thompson, J., joins, concurring in part and dissenting in part:

In the instant case, Benito Anaya appeals from revocation of his probation contending that the admission of hearsay evidence violated his right to confrontation and that the trial court abused its discretion in revoking his probation. Although I concur in that part of the majority opinion which holds that the trial court erred when it ruled that Anaya had waived his sixth *126amendment confrontation right, I disagree that the error is reversible within the context of this case.

The effect of the majority opinion is two-fold. First, irrespective of the existence of good cause, as here, for a probation revocation, the State of Nevada will be compelled in any number of cases to expend great cost and energy to produce witnesses from foreign jurisdictions for confrontation by the probationer. Second, the long-standing practice of our trial courts in effectively conducting probation revocation proceedings within the parameters of justice and fair play will be hampered by heretofore unsupportable defense objections, petitions to this court for pre-revocation hearing review, motions to preclude testimony or introduction of physical or documentary evidence, and the like. The limits the majority places on the prosecution and trial bench today constitute an undue interference with probationary processes. By doing so, his court perverts our previous constitutional guarantees and frustrates the vital interests of society in preserving the legitimate and proper function of fair and purposeful probationary procedures.

There are several significant facts to this case which my brethren fail to point out. After appellant was placed in the California drug rehabilitation center as a condition of his probation, he left the center and returned to Las Vegas to seek another program. He said he was dissatisfied with the rigorous conditions existent at the first facility. Appellant was then placed by TASC at Fitzsimmons House. Mr. David Hill was appellant’s original supervising probation officer. Appellant was to report to Hill and was so advised by TASC and Fitz-simmons House. Appellant failed to report to Hill until after November 7, 1977. On that day he was arrested by North Las Vegas police for driving under the influence. Hill testified that appellant’s blood alcohol content was .220 at the time of arrest. Hill had obtained this information from the arrest report..

At the revocation hearing, Hill testified as to the circumstances surrounding appellant’s departure from the California drug program and the circumstances surrounding his arrest for driving under the influence. Appellant unsuccessfully objected to this testimony on the basis of hearsay and a violation of his right to confront witnesses.1 The second witness, a representative from the TASC agency, was called by appellant. He testified that appellant did not complete any drug program. *127Appellant testified that he had left the program in California, hoping to enroll in a different program in Las Vegas. He also stated that he did not contact Hill because he thought someone else was his probation officer. At the conclusion of the hearing, appellant’s probation was revoked.

As the majority recognizes, there is no express statutory provision for the revocation hearing. Not unlike the majority, I do not believe that the legislature would confer this unqualified right upon a probationer at the preliminary inquiry and deny it at the more formal and plenary revocation hearing. Statutes will be construed as to avoid unreasonable results. Western Pacific R.R. v State, 69 Nev. 66, 69, 241 P.2d 846, 847 (1952); Penrose v. Whitacre, 61 Nev. 440, 455, 132 P.2d 609, 616 (1942).

From a constitutional standpoint, and in a right to counsel context, the United States Supreme Court has held that probationers and parolees are entitled to a preliminary and a final revocation hearing to satisfy due process. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), citing Morrissey v. Brewer, 408 U.S. 471 (1972). Although these cases hold that the right to confront and cross-examine adverse witnesses is applicable to such hearings, the Supreme Court did state that these hearings are not part of a criminal prosecution and “the full panoply of rights” in such instances does not apply. Morrissey v. Brewer, 408 U.S. at 480; United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974). In Gagnon and Morrissey, the Supreme Court emphasized that such proceedings may be conducted under less stringent evidentiary rules, stating in Morrissey, “[t]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Morrissey v. Brewer, 408 U.S. at 489; accord, Gagnon v. Scarpelli, 411 U.S. at 782-83 n.5. The question here is whether the curtailment of the right to confrontation in the instant case transcended reasonable limits in *128view of a probationer’s conditional right to confront and cross-examine adverse witnesses. See Gagnon v. Scarpelli, 411 U.S. at 786. In the context of this case, I disagree with the majority’s holding that it did.

I believe that in a probation revocation proceeding our courts, as has historically been the case, can generally hear and consider hearsay evidence if it appears to be reasonably reliable; the probationer is permitted as here, to cross-examine thoroughly the witness presenting the hearsay evidence; and, the probationer, as here, is allowed to present evidence to refute the hearsay evidence. Generally, courts have allowed the use of hearsay evidence and have found no violation of the confrontation right when there is an indication that the hearsay is reliable. United States v. Pattman, 535 F.2d 1062, 1064 (8th Cir. 1976) (probation officer read from a police report which was accurate on its face as to probationer’s name and description); United States v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975) (probation officer’s testimony appeared reliable and was not refuted). In Arizona, probation can be revoked exclusively on hearsay testimony, as long as that hearsay is reliable. State v. Valenzuela, 567 P.2d 1190, 1192 (Ariz. 1977); Ariz. Rev. Stats., Rules of Crim. Pro. 27.7(b)(3) (West Supp. 1978-79). See State v. Brown, 532 P.2d 167, 172-73 (Ariz.App. 1975) (probation officer’s testimony from hospital report as to probationer’s urine content was found reliable). A Washington court has found no violation of due process when alleged hearsay testimony and exhibits were not exclusively relied upon to establish the central issue. State v. Smith, 539 P.2d 101, 103 (Wash.App. 1975).

Moreover, NRS 51.075(1) provides, “A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though he is available.” Finally, our evidence code exempts revocation proceedings from its general application. NRS 47.020(3)(c). I find that the testimony in question carried with it the indicia of reliability contemplated by statute.

The clear trend is that hearsay should be reliable or accompanied by other evidence. This standard was met in the present case. Here, the probation officer testified that appellant had been arrested for driving under the influence and that appellant had, without the required permission, absented himself from the Brentwood program. From the record, I observe that appellant was not unduly limited in the exercise of his rights. Appellant did cross-examine the officer as to his knowledge of *129the arrest and breathalizer test as well as his indirect knowledge of the circumstances under which appellant left Brentwood. Appellant did not, however, actually refute the fact that he was arrested or what the results of the breathalizer were. Cf. McNallen v. State, 91 Nev. 592, 540 P.2d 121 (1975) (appellant did not contest fact that he was arrested for possession of controlled substance); State v. Smith, 539 P.2d 101 (Wash.App. 1975) (appellant did not materially deny hearsay allegations). Appellant was also allowed to call his own witnesses. I would hold that the court did not err in admitting the hearsay evidence.

Appellant has also contended that the only evidence the lower court heard and considered in revoking appellant’s probation was hearsay and that this was erroneous. I believe this contention is also without merit. We have held that in order to revoke probation the judge must be reasonably satisfied by the evidence and facts “that the conduct of the probationer has not been as good as required by the conditions of probation.” Lewis v. state, 90 Nev. 436, 438, 529 P.2d 796, 797 (1974). See also United States v. D’Amato, 429 F.2d 1284 (3d Cir. 1970).

I note that appellant was also accused of failing to cooperate with his probation officer. In this connection, nonhearsay evidence presented below was by itself sufficient to justify revocation. Hill testified that he was the original probation officer assigned to appellant and that appellant failed to report to him. Additionally, a witness for the defense testified on cross-examination that appellant failed to complete the program at Brent-wood. Appellant himself testified that he left Brentwood against the recommendation of its administrators. And, he did not challenge the accuracy of the information that he had been intoxicated at the time of his arreest and he offered no evidence to refute the material allegations of the motion for revocation. I believe that the unrefuted testimony elicited at the hearing was sufficiently reliable and adequate to satisfy the trial court that appellant had violated the terms of his probation. Appellant suggested no reasonable excuse for the violations or a convincing reason as to why revocation was inappropriate.2 It is *130settled that in revocation proceedings, the trial court’s exercise of its broad discretionary power will not be disturbed absent a clear showing of abuse. Lewis v. State, 90 Nev. at 438, 529 P.2d at 797.

Here, Anaya was afforded the minimal due process required by Gagnon v. Scarpelli, 411 U.S. 778 (1973). 1 would hold that the lower court did not abuse its discretion in revoking appellant’s probation.

At this point, the trial judge made his ruling that appellant’s waiver of his preliminary hearing constituted a waiver of his due process rights at the subsequent revocation hearing. I agree with the majority’s holding that this constituted error, although I do not agree that it necessitates reversal. The right to *127confront witnesses does apply at the less summary judicial hearing and not just at the preliminary inquiry. United States v. Pattman, 535 F.2d 1062, 1063-64 (8th Cir. 1976), citing Gagnon v. Scarpelli, 411 U.S. 778 (1973). This is because the inquiry is conducted by a non-judicial officer while, at the hearing, the court must make rulings on admissibility and weigh the evidence to determine whether the revocation is warranted. Additionally, because of the time lapse between the arrest and the eventual probable cause determination by the nonjudicial officer, arrestees may be induced to waive the preliminary inquiry from the standpoint of personal expediency. To hold that a waiver of á preliminary inquiry operates as a total deprivation of a right to confrontation would greatly impair the main objective of the adversary process — specifically, society’s interest in having probation revoked based only upon reliable information and upon proper evaluation of the need to revoke probation in light of probation conditions. Morrissey v. Brewer, 408 U.S. 471, 488 (1972).

As acknowledged by the majority, I feel constrained to mention that although a parolee or probationer is not clothed with a full range of constitutional rights, as indicated by Gagnon and Morrissey, more process may be due in certain revocation proceedings. Although 1 believe the evidence proffered here was admissible, it is more consonent with responsible procedural and evi-dentiary practice for the state to present live witnesses and authenticated records or reports when practicable to do so. In the instant case, the record shows that arresting officers could have been produced at the hearing. Had the state more readily accepted its evidentiary responsibilities, judicial economy *130would doubtlessly have been served by the avoidance of this appeal. United States v. Miller, 514 F.2d 41, 43 (9th Cir. 1975). I caution, as has the majority generally, that when the main substantive charge is proffered through hearsay and is otherwise unsupported and materially denied, due process may well support the claimed right of confrontation. State v. Riddell, 449 P.2d 97, 99 (Wash. 1968).