Appeal from the Superior Court of the District of Columbia ( F-11265-94). (Hon. Stephanie Duncan-Peters, Trial Judge).
Before Farrell and Washington, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
The ultimate question before us is whether the trial judge had sufficient reason to revoke the probation of appellant (Young) based on evidence that he had murdered his grandmother (a crime for which he had not been tried). In the course of answering this question, we must answer two others: (1) Does the Supreme Court's decision in Crawford v. Washington, 124 S.Ct. 1354 (2004), preclude consideration at a probation revocation hearing of an unavailable co-defendant's custodial statement to police implicating the probationer in a crime; and (2) by what standard of proof must the government prove a crime offered as the basis for revoking probation. We affirm the decision to revoke Young's probation.
Young was convicted in 1995 of possession of a firearm during a crime of violence, an armed robbery; imposition of sentence was suspended and he was placed on probation for five years. In September 1997 he was arrested and charged with the murder of his grandmother, Eddie Mae Taylor. The government dismissed that case after a judge ruled that hearsay statements to the police by Young's co-defendant, Marcus Coleman, were inadmissible at Young's trial. But, in the meantime, the government sought to revoke Young's probation based on his involvement in the murder. Following an August 1999 hearing, the trial judge (Duncan-Peters) revoked the probation and sentenced Young to five to fifteen years' imprisonment.
Evidence adduced at the revocation hearing and credited by the trial judge revealed the following. The 78-year-old Ms. Taylor was found dead in her home at 1010 C Street, S.E., on the afternoon of September 22, 1997. Death had occurred between 8:00 p.m. on September 21 and 4:00 a.m. that morning. Ms. Taylor had multiple blunt force wounds to her chest, neck, and head. An empty Citibank, F.S.B. envelope was found on top of her clothes in a dresser drawer in her bedroom. She had withdrawn a total of $150 from Citibank in the past two months and, according to one of her daughters, Pamela Lewis, always kept her money in the bedroom dresser in a bank envelope. The house had not been ransacked, there was no sign of forced entry, and the front door was unlocked.
Young had previously lived with Ms. Taylor and still had a key to the bottom lock on the front door. (Ms. Taylor, according to another daughter, for a while had used only a key to the bottom lock.) Around the time of her death Young had been in the process of cleaning her windows, thus had spent time in the house. Pamela Lewis also described an incident during the year before the death when $300 from Ms. Taylor's tax refund had disappeared from the bedroom dresser while Young was in the home. After Ms. Taylor told him that "that money better appear back in this house," Young went into the bedroom and came out with the money, claiming his grandmother had not looked carefully enough for it - though Lewis herself had previously looked for it unsuccessfully in the place where Young "found it." On other occasions, Young had also asked Ms. Taylor for money, apparently prompting her anger.
In a statement to the police after the murder, Young admitted that he and Marcus Coleman had been just across the street from Ms. Taylor's house at 2:00 in the morning of September 22. They had gone to 1017 C Street, S.E., to take money from Coleman's mother's beauty shop.*fn1 While Coleman tried unsuccessfully to enter the shop (he had no key to the top lock), Young said he waited in the car and noticed that Ms. Taylor's porch light was on; he thought this strange but decided not to go over and knock for fear of awakening her.
In addition to the above evidence, the government was allowed to introduce successive statements that Coleman had made to the police following the murder. In an interview at the police station on September 23, Coleman explained that he and Young had gone to his mother's store on C Street to get "goodies" and that Young waited in the car.
When a detective commented that it seemed a coincidence that the two were across the street on the night Ms. Taylor died, Coleman responded that Young in fact had gone into Ms. Taylor's house and that when he returned to the car, he looked sad and said that his grandmother had slipped, fallen, and hurt herself while he was on his way out the door. A day or so later, after being arrested for a probation violation of his own,*fn2 Coleman gave a more detailed statement incriminating Young (and, to a much lesser degree, himself) in the murder. Young, he said, had asked him to take him to Ms. Taylor's house that evening, saying "it would be easier to sneak in the house at that time to get money." After they drove to C Street in Coleman's father's car and Coleman was unable to enter his mother's shop, he returned to the car but saw that Young had gone into his grandmother's house through the front door. A few minutes later Young returned to the car with his keys in his hand, looking sad. He told Coleman that he had gone into Ms. Taylor's bedroom where she kept her money in a drawer, that she had been asleep but woke up, and that she followed him downstairs yelling at him. He went out back, obtained a brick, and beat her with it before leaving the house with $150 he had taken from the drawer. On the way home, he showed Coleman a bundle of $10 bills.
Coleman did not testify at Young's revocation hearing because he had asserted his privilege against self-incrimination.
Young contends first that Coleman's "presumptively unreliable" statements to the police while in custody, see Lee v. Illinois, 476 U.S. 530, 545 (1986), could not constitutionally be admitted into evidence against Young at his probation revocation hearing. He relies principally on the Supreme Court's recent decision in Crawford, supra, which held inadmissible, absent a showing of both "unavailability and a prior opportunity for cross-examination [of the declarant]," similar "core testimonial statements" made to the police by a co-defendant who was in custody. Crawford, 124 S.Ct. at 1371, 1374. Crawford, however, and Sixth Amendment principles generally, do not govern this case. Crawford was the Court's latest interpretation of the Sixth Amendment's command that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Id. at 1357 (emphasis added). Substantially disavowing its prior test for Sixth Amendment admissibility in Ohio v. Roberts, 448 U.S. 56 (1980), the Court rejected the notion that "a general reliability exception" permits the introduction of uncross-examined "testimonial statements against the accused in a criminal case." Id. at 1367, 1371 (emphasis in original).*fn3 The inapplicability of Crawford to probation revocation hearings is clear. "Probation revocation . . . is not a stage of a criminal prosecution," Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), and so "the full panoply of rights due a defendant [in a criminal prosecution]" does not apply to such revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole revocation); see Gagnon, 411 U.S. at 782 (applying same principle to probation revocation). Rather, probation revocation "'is more in the nature of an administrative hearing concerned with the probationer's rehabilitation.'" Harris v. United States, 612 A.2d 198, 201 (D.C. 1992) (quoting Short v. United States, 366 A.2d 781, 785 (D.C. 1976)); see also Merle v. United States, 683 A.2d 755, 760 n.3 (D.C. 1996). Thus, while the Confrontation Clause [of the Sixth Amendment] dictates "the manner in which witnesses give testimony in criminal trials," Crawford, 124 S.Ct. at 1359 -- "command[ing], not that evidence be reliable, but that reliability be assessed . . . by testing in the crucible of cross-examination," id. at 1370 - probation revocation is ...