Summary
recognizing "an exception to the confrontation requirement in parole revocation hearings where 'the hearing officer specifically finds good cause for not allowing confrontation' "
Summary of this case from State v. JohnsonOpinion
No. 74-328
Decided April 16, 1975.
Criminal law — Probation revocation — Evidence — Probationer's right to confront witnesses — Probation officer who did not prepare entries testifying as to record — Denial of due process.
Where at a probation revocation hearing the trial court permits a probation officer who did not prepare the entries in the probation department record to testify as to the contents of that record and the probation officer who prepared the entries does not appear, there is a denial of the probationer's right to confront the witnesses against him, and, where the record does not show that the probation officer who prepared the entries was unavailable or that a specific finding was made of good cause for not allowing confrontation, there is a denial of the minimum requirements of due process of law required for probation revocation proceedings. ( Morrissey v. Brewer, 408 U.S. 471, and Gagnon v. Scarpelli, 411 U.S. 778, followed.)
APPEAL from the Court of Appeals for Franklin County.
Appellee, Leslie Wayne Miller, after pleading guilty in the Court of Common Pleas of Franklin County to charges of driving an automobile without the owner's consent and to breaking and entering, was placed on probation for a period of three years on September 23, 1971.
On May 29, 1973, following a hearing, the trial court revoked appellee's probation. On June 26, 1973, the court, in light of the case of Gagnon v. Scarpelli (1973), 411 U.S. 778, set aside its order revoking probation. Two hearings were then conducted, one on July 12, 1973, which resulted in a finding of probable cause that appellee had violated the terms of his probation, and the second on July 26, 1973, which resulted in revocation of appellee's probation.
At the time of the revocation hearings, the probation officer who had been assigned to supervise appellee was no longer employed by the probation department and he did not appear. The state presented as a witness Mr. Thomas J. Martin, a probation officer, who testified that appellee failed to report to the probation department for the "past 15 months" — since February 1972. On cross-examination, Martin admitted that he had never personally spoken to appellee and that his testimony was based upon probation department records. Appellee testified on his own behalf, stating that he had reported by telephone and letter to his assigned probation officer, pursuant to agreement with the officer.
Appellee appealed the revocation of probation order to the Court of Appeals. In that court, appellee contended in assignments of error numbered two and three that:
"2. The trial court erred in allowing, over objection, the use of a probation officer's report, without his presence, at defendant's probation revocation hearing, resulting in a denial of the defendant's right to confrontation and cross-examination in violation of the Fourteenth Amendment to the Constitution of the United States and Ohio Revised Code 2951.09.
"3. The judgment of the trial court ordering defendant's probation revoked was erroneous in that it failed to follow the guidelines set down by the United States Supreme Court, in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 13 Crim. L. Rep. 3081 (May 14, 1973)."
The Court of Appeals found the foregoing assignments of error to be well taken and reversed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. George C. Smith, prosecuting attorney, and Mr. Miles C. Durfey, for appellant. Mr. Timothy J. O'Connell, Mr. Richard H. Ferrell and Mr. Bernard Z. Yavitch, for appellee.
In Gagnon v. Scarpelli (1973), 411 U.S. 778, it was held, at page 782, that "* * * a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer * * *." Therefore, although the revocation proceedings in question here involved revocation of probation, they must be examined in light of Morrissey.
The minimum due process requirements for revocation of parole set forth in Morrissey v. Brewer (1972), 408 U.S. 471, 489, include:
"* * * (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. * * *"
The record in this case shows that the original probation officer assigned to supervise appellee during the probation period did not appear at the revocation hearing and that another probation officer testified as to the contents of the probation department record. The testifying officer admitted that his testimony was based only upon the probation department records; he also indicated that the entries contained in that record were made by appellee's probation officer at the time.
The determinative issue is whether the trial court, in permitting a probation officer who did not prepare the entries in the probation department record to testify as to the contents of that record, denied appellee his "right to confront and cross-examine adverse witnesses."
The question of confrontation presented in this case is similar to that presented in State v. Tims (1967), 9 Ohio St.2d 136, 224 N.E.2d 348. In that case, the defendant was prosecuted for statutory rape, and, at trial, a document entitled "Report of Examination for Alleged Rape" was admitted in evidence through a clerk in the medical record room of the hospital who admitted that she had not made the examination and was not present when it was made. The question before the court in that case was "whether the report of the examination for alleged rape was properly admitted into evidence under the provisions of Section 2317.40, Revised Code (Business Records as Evidence Act)." It was held that the Business Records as Evidence Act was not applicable. In the course of the opinion, the court commented on the right to confrontation, at page 138, as follows:
"One of the basic and fundamental rights guaranteed an accused by both the state and federal Constitutions is the confrontation of the witnesses against him. Section 10, Article I of the Ohio Constitution, provides that an accused has a right `to meet the witnesses face to face.' * * *
"This right of confrontation includes the right of cross-examination of the person who is the actual witness against him. If applicable in a criminal case, the Business Records as Evidence Act denies him such right. The Act permits the introduction of evidence in the form of records without requiring the presence of the person who actually made the examination. It is this person who is the actual witness against the accused, not the custodian, and it is this witness that the accused has the right to cross-examine to determine his qualifications and to determine whether the tests were made properly.
"Here, the actual witness against the appellant was the examining physician whose findings were incorporated in the record offered as evidence.
"The effect of admitting hospital records in this type of case would be to allow the examining physician to testify without being subject to cross-examination.
"The Rules of Civil Procedure are not, therefore, applicable in a criminal case, where such rules would serve to deprive an accused of a constitutional right."
Following the reasoning expressed in Tims, it is the opinion of this court that, by permitting a probation officer who did not prepare the entries for appellee's probation department record to testify as to the contents of that record, the trial court denied appellee his "right to confront and cross-examine adverse witnesses."
Although appellant does not contend in this court that R.C. 2317.40 is applicable, the argument is made that a holding that appellee was entitled to the confrontation and cross-examination of his original probation officer leaves unanswered the question " * * * as to what would happen if * * * [the original probation officer] refused to be a witness, was unable to be found or was dead."
However, the court in Morrissey did not overlook such possibilities Morrissey provides for an exception to the confrontation requirement in parole revocation hearings where "the hearing officer specifically finds good cause for not allowing confrontation." After specifying the minimum due process requirements for revocation of parole in Morrissey, Chief Justice Burger observed, at page 489:
" * * * We emphasize that there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial."
The record here does not indicate that appellee's original probation officer, although no longer employed by the probation department, was unavailable, or that the trial court made a specific finding of good cause for not allowing confrontation. The trial court, therefore, did not provide appellee the minimum due process requirements specified in Morrissey at his probation revocation hearing.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.