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07/10/92 LEE HARRIS v. UNITED STATES

July 10, 1992

LEE HARRIS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Eugene N. Hamilton, Trial Judge)

Before Ferren, Schwelb, and King, Associate Judges. Opinion for the court by Associate Judge King. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant seeks reversal of the trial Judge's decision to revoke his probation. *fn1 He contends that the trial Judge erred by (1) relying solely on hearsay evidence that he violated conditions of his probation, (2) applying the wrong standard of proof, (3) relying upon insufficient evidence, and (4) conducting the revocation hearing while he still faced the possibility of being prosecuted for committing a new criminal offense while on probation. We affirm.

I.

Pursuant to an agreement with the government, appellant entered pleas of guilty to armed manslaughter and robbery. For armed manslaughter appellant was sentenced to a term of fifteen years to life with all but seven years suspended and five years probation. For robbery appellant was sentenced to a term of five to fifteen years suspended and five years probation. The sentences were imposed consecutively as to imprisonment and concurrently as to probation. As conditions of probation the trial Judge specifically ordered appellant to refrain from using illegal drugs and involving himself in criminal activity. *fn2

Appellant was released on probation on July 25, 1988, approximately three years and seven months after his initial sentencing. Within four months of his release, the probation office reported that appellant had tested positive for illegal drug use on October 25, 1988. In response, the trial Judge issued an order to show cause why appellant's probation should not be revoked. After a hearing on the order to show cause, the trial Judge discharged the order and permitted appellant to remain on probation with the condition that he refrain from further drug use. The Judge also imposed the condition that appellant complete a drug treatment program with the Alcohol and Drug Abuse Services Administration ("ADASA").

Within two months, the trial Judge received another report disclosing that appellant failed drug tests on November 10, November 28, and December 5, 1988, and that he failed to complete the ADASA surveillance program. The trial Judge then issued a second show cause order. Hearings with respect to that order were continued a number of times over the course of the next year. *fn3

On October 23, 1989, appellant was arrested on a charge of armed assault with intent to kill ("AAWIK"). Appellant requested further postponement of his hearing on the drug use violation pending the Disposition of the new charge. On December 14, 1989, the AAWIK charge was voluntarily dismissed by the government due to its inability to locate the complaining witness. At the government's request, the trial Judge then issued a third show cause order based upon the allegation that appellant committed a new criminal offense, AAWIK, while on probation.

After evidentiary hearings held in February and March of 1990, the trial Judge found that appellant had used illegal drugs and committed a new offense, both of which were violations of conditions of probation. *fn4 As a result, the trial Judge revoked appellant's probation and sentenced him to the remaining unserved time on his sentences. This appeal followed.

II.

Appellant contends that the trial Judge erred in relying on hearsay evidence in determining whether to revoke his probation for (1) illegal drug use and (2) the commission of a new offense. For the reasons stated below, we find no error with respect to the trial Judge's revocation of appellant's probation for illegal drug use. Since that violation is sufficient to allow revocation of probation, we do not reach the contentions raised by appellant with respect to the new offense.

A.

Appellant was ordered to show cause why his probation should not be revoked for illegal drug use. At the show cause hearing, the government established that appellant had been using illegal drugs while on probation primarily by presenting the testimony of appellant's probation officer, Joann Hunter. Her testimony, which was objected to on hearsay grounds, was based upon information reported in appellant's probation file.

Hunter testified that appellant tested positive for illegal drug use on at least five occasions. Three of the positive results came from tests administered by ADASA on November 10, November 28, and December, 5, 1988. An earlier positive result came from a test administered by ADASA on October 25, 1988, and was the basis for the first show cause order. The fifth positive result came from a drug test administered by the Pretrial Services Agency on June 13, 1989, one of the dates when appellant appeared before the trial Judge on the second show cause order.

A copy of the ADASA report disclosing the three positive drug tests in November and December of 1988 was also offered into evidence by the government. The trial Judge, noting the report had "sufficient regularity and apparent reliability," permitted the government to rely on the report over appellant's objection on hearsay grounds.

Finally, Hunter also testified that on April 10, 1989, during a court proceeding in this case, appellant's attorney represented that appellant would be entering an in-patient drug treatment program because of his continuing drug problem. At that proceeding, the trial Judge also warned appellant that he was running out of chances to deal with his drug problem. Ultimately, appellant was unable to enter that program because he began taking methadone, which made him ineligible.

B.

At the show cause hearings, appellant did not deny using illegal drugs or offer an excuse. Instead, he chose to put the government to its burden of proof. On appeal, he contends the trial Judge erred in admitting, over his objection on hearsay grounds, Hunter's testimony regarding the information contained in his probation file, including the ADASA report. He asserts that because Hunter lacked personal knowledge concerning the information reported in his file, her testimony violated his rights under the confrontation clause.

We observed previously that " probation revocation proceeding is not a criminal prosecution; rather, it is more in the nature of an administrative hearing concerned with the probationer's rehabilitation." Short v. United States, 366 A.2d 781, 785 (D.C. 1976) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782-785, 36 L.Ed.2d 656, 93 S.Ct. 1756 (1973) (establishing minimum due process requirements for revocation of probation)). Consequently, the formal rules of evidence governing a criminal prosecution do not apply to a probation revocation proceeding. "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." Morrissey v. Brewer, 408 U.S. 471, 489, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972) (establishing minimum due process requirements for revocation of parole). *fn5 All that is required before admitting evidence at a probation revocation hearing is a determination that the proffered evidence is reliable. Thompson v. United States, 444 A.2d 972, 974 (D.C. 1982). Furthermore, the determination that the evidence is reliable satisfies the requirements of the confrontation clause. See Patterson v. United States, 570 A.2d 1198, 1199 footnote (D.C. 1990). Thus, "reliable hearsay is admissible in probation revocation hearings," id. at 1199, and its admission does not violate the confrontation clause, see id. at 1199 footnote.

Hunter testified to the information reported in appellant's probation file. Probation violation reports have been equated with records admitted pursuant to the business records exception to the hearsay rule; they are "official records kept in the ordinary course of business by the Probation Department." Patterson v. United States, supra, 570 A.2d at 1199. As such, probation violation reports bear "recognized indicia of reliability." Id. at 1199 (citation omitted). Accordingly, appellant's hearsay objection to testimony regarding information conveyed by the records contained in his probation file was properly overruled. See id. at 1199.

Appellant also contends that he was deprived of his right to cross-examine a witness on the reliability of the three drug tests administered in November and December of 1988 which disclosed the positive results contained in the ADASA report. Appellant made no attempt to offer any such witness himself. Rather, he asserts that the drug test results were inadmissible because the government did not produce a witness to attest to the accuracy of those three tests. *fn6

We are not persuaded that the trial Judge erred when he concluded that the government need not provide a witness who had personal knowledge of the three positive drug tests and who could testify to the reliability of the results. Probation and parole revocation hearings are not trials; the formal rules of evidence do not apply. Consequently, evidence that would be inadmissible at trial may be admissible at a probation or parole revocation hearing. Morrissey, supra, 408 U.S. at 489. We are satisfied that in the context of a probation revocation hearing, the ADASA report qualified as sufficiently reliable prima facie evidence that appellant had tested positive for illegal drug use. See Patterson, supra; see also Howard v. United States, 473 A.2d 835, 839-840 (D.C. 1984) (chemist report admissible at trial to establish use of controlled substance); Roy v. United States, supra note 6.

Furthermore, appellant never denied using illegal drugs, nor did he ever claim that the test results were erroneous. On the contrary, from the beginning he acknowledged having an ongoing drug problem. He repeatedly requested continuances in order to prove to the court that he could stay drug free, and he asserted that he was attempting to obtain treatment. In sum, appellant's conduct during the months that the matter was pending was consistent with one who had continued to use illegal drugs as opposed to one who had tested false positive.

Moreover, during the course of the show cause hearing the government inquired whether the trial Judge understood appellant's previous position to be an admission of illegal drug use. The trial Judge responded by stating that the illegal drug use was "taken as -- as admitted by at that point in the case." Appellant's counsel responded, "there is no question that we have not contested the fact that needed some drug treatment."

In short, when initially confronted with positive results from numerous drug tests, appellant did not challenge the accuracy of the tests. Instead, he maintained for a number of months that he was in need of and that he was seeking treatment for his drug problem. Then, at his revocation hearing, he took the position that the government had failed to prove by competent evidence that he had been using illegal drugs. The trial Judge, when determining whether there was any real question as to the reliability of the drug test results, was not obligated to ignore appellant's prior conduct or statements which were entirely consistent with his continued use of illegal drugs while on probation. Cf. Powell v. United States, 414 A.2d 530, 533 (D.C. 1980) (exception to hearsay rule for prior statements that are inconsistent with a party's position at trial). ...


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