1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 vs. No. 31,062
10 CARLOS FRANCO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge
14 Gary King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Nina Lalevic, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Defendant appeals from the revocation of his probation. This Court issued a
24 calendar notice proposing to affirm. Defendant has filed a memorandum in
1 opposition, which this Court has duly considered. Unpersuaded, we summarily affirm
2 the revocation of Defendant’s probation.
3 Defendant challenges the State’s use of telephonic testimony at Defendant’s
4 probation revocation proceeding, arguing that it violated his due process right to
5 confront the witness against him. We pointed out in our notice of proposed
6 disposition that, while the Confrontation Clause of the Sixth Amendment does not
7 apply to probation revocation proceedings, a defendant must still be afforded
8 minimum due process. [CN 2] In this Court’s calendar notice we proposed to
9 conclude that Defendant had not demonstrated a violation of his right to due process.
10 We suggested that Defendant inform this Court what prejudice he suffered because
11 of the telephonic testimony and how he had placed the credibility of the witness
12 testifying telephonically at issue, such that the inability of the district court to view
13 the witness and observe his demeanor was necessary. [CN 5]
14 In response, Defendant has pointed out that (1) there was difficulty
15 administering the oath to the probation officer [MIO 3-4], (2) the probation officer
16 could not authenticate documents [MIO 5], and (3) the telephonic testimony of the
17 officer was the entirety of the State’s case [MIO 8]. Defendant points out, however,
18 that the oath was eventually administered to the probation officer [MIO 4] and that the
19 district court judge did not allow the document into evidence that Defendant
2
1 challenged for lack of authentication [MIO 5]. Thus, we are unpersuaded that
2 difficulty with administering the oath or authenticating documents prejudiced
3 Defendant. To the extent Defendant contends that the telephonic testimony was the
4 entirety of the State’s case, Defendant has not informed this Court how he called into
5 question the probation officer’s credibility, such that live testimony became
6 imperative. See State ex rel. Children, Youth & Families Dep’t v. Anne McD., 2000-
7 NMCA-020, ¶ 24, 128 N.M. 618, 995 P.2d 1060 (noting that “the risk of error is
8 greater when ‘issues of witness credibility and veracity . . . are critical to the decision
9 making process’”).
10 Defendant cites to our Supreme Court’s recent opinion in State v. Guthrie,
11 2011-NMSC-014, __ N.M. __, __ P.3d __, for the proposition that the Court
12 “introduced the idea of a ‘spectrum’ of confrontation analysis,” such that “the stronger
13 the probative value and reliability of the evidence, the less the need for confrontation.”
14 [MIO 7] Defendant argues that Guthrie leaves open the question of what role this
15 Court’s decision in State v. Almanza, 2007-NMCA-073, 141 N.M. 751, 160 P.3d 932,
16 plays in the context of a probation revocation. We are unpersuaded.
17 Defendant argues that Almanza held that the State must demonstrate a
18 compelling reason or need for using a procedure other than face-to-face confrontation
19 by stating, “[w]here there are requirements of important public policy and showing
3
1 of necessity, mere inconvenience to the witness is not sufficient to dispense with face-
2 to-face confrontation.” [MIO 8 (quoting Almanza, 2007-NMCA-073, ¶ 12)]
3 Defendant argues, based on Almanza, that the question on appeal is whether there is
4 a compelling reason beyond mere inconvenience for telephonic testimony, in addition
5 to determining the utility of face-to-face confrontation. Defendant’s argument is
6 unavailing.
7 To the extent Defendant relies on Almanza, this Court reversed a criminal
8 conviction in Almanza based on the use of telephonic testimony at a criminal trial.
9 Our case law is clear that the protections afforded during a probation revocation
10 hearing are not the same as those provided during a criminal trial, because the liberty
11 interest at stake is not the same. See Guthrie, 2011-NMSC-014, ¶ 10 (“Because loss
12 of probation is loss of only conditional liberty, “the full panoply of rights due a
13 defendant in a [criminal trial] do[] not apply.” (alteration in original) (internal
14 quotation marks and citation omitted)). Thus, we conclude that Almanza’s
15 requirement that the State demonstrate a compelling reason does not apply to
16 Defendant’s probation revocation hearing.
17 To the extent Defendant argues that this Court must determine the utility of
18 face-to-face confrontation under Guthrie, we are unpersuaded that application of
19 Guthrie requires reversal. Defendant is correct in arguing that Guthrie creates a
4
1 spectrum for determining whether there is good cause for not requiring confrontation.
2 On one end of the spectrum, Guthrie provides that good cause for not requiring
3 confrontation will most likely exist where
4 the state’s evidence is uncontested, corroborated by other reliable
5 evidence, and documented by a reliable source without a motive to
6 fabricate, or possibly situations where the evidence is about an objective
7 conclusion, a routine recording, or a negative fact, making the demeanor
8 and credibility of the witness less relevant to the truth-finding process.
9 Id. ¶ 40. On the other end of the spectrum, Guthrie provides that good cause will most
10 likely not exist where
11 evidence is contested by the defendant, unsupported or contradicted, and
12 its source has a motive to fabricate; it is about a subjective, judgment-
13 based observation that is subject to inference and interpretation, and
14 makes a conclusion that is central to the necessary proof that the
15 defendant violated probation.
16 Id. ¶ 41.
17 In applying these standards, our Supreme Court held in Guthrie that
18 confrontation was not required where (1) the defendant did not contest the state’s
19 allegation that he had failed to complete his treatment at the rehabilitation center, (2)
20 the defendant failed to offer any evidence to mitigate his failure to abide by his
21 probation requirements, (3) the failure to complete residential treatment was an
22 objective, negative, and routine fact, and (4) there was no known motive of the
23 probation officer to fabricate or deceive the court. Id. ¶¶ 45-47.
5
1 Here, the probation officer testified via telephone that he had observed
2 Defendant out after curfew at a location that served alcohol in violation of his
3 probation, that Defendant had provided a urine sample that tested positive for cocaine,
4 and that Defendant admitted to using cocaine. [MIO 4-5] Defendant has not indicated
5 that he challenged the veracity of the probation officer’s testimony regarding these
6 violations or offered any evidence to mitigate his probation violations. Moreover,
7 Defendant’s presence at an establishment that served alcohol past his curfew is an
8 objective fact, as is the urine test indicating cocaine usage, and there is no indication
9 that the officer had a motive to fabricate this information. As a result, we conclude,
10 based on Guthrie, that Defendant has failed to demonstrate a due process violation
11 resulting from the use of telephonic testimony at his probation revocation hearing.
12 For the reasons stated above, we affirm.
13 IT IS SO ORDERED.
14 _______________________________
15 MICHAEL E. VIGIL, Judge
6
1 WE CONCUR:
2 _________________________________
3 LINDA M. VANZI, Judge
4 _________________________________
5 TIMOTHY L. GARCIA, Judge
7