Bailey v. State

CHASANOW, Judge. On February 12, 1990, Robert Lee Bailey pled guilty in the Circuit Court for Anne Arundel County to battery and a fourth degree sex offense. Judge Raymond G. Thieme, Jr., sentenced Bailey to a one-year term of confinement, which he then suspended and placed Bailey on five years probation subject to certain conditions. One of those conditions, ⁶⁹² spelled out in the Order for Probation, was that Bailey begin active participation in a residential treatment program at Omni House, Inc. by February 22, 1990.

Omni House is a private, non-profit organization in Anne Arundel County funded by the State Department of Health and Mental Hygiene to work with troubled individuals. Shortly thereafter, Bailey petitioned the court to modify his sentence. After encountering problems getting admitted to Omni House’s residential program by the required date, Bailey was accepted only into that organization’s daytime program; however, he was also accepted into the residential program at St. Paul House in Baltimore City. He sought to secure the court’s approval to modify the conditions of probation and receive his treatment in both programs.

On April 16, 1990, Judge Thieme granted Bailey’s request and signed a new order of probation specifying, in part, that Bailey was to enter St. Paul House “for at least 6 months and successfully complete that program” as well as the daytime program offered at Omni House. On October 1, 1990, the State charged Bailey with having violated this condition of his probation by failing to successfully complete the six month program at St. Paul House. At a hearing on December 14, 1990, Judge Thieme ruled that Bailey had violated the terms of his probation and reimposed the remainder of his original sentence. Bailey appealed to the Court of Special Appeals, which affirmed the trial judge’s order in an unreported opinion.

On Bailey’s petition, we granted certiorari to review the decision of the Court of Special Appeals. The question before us is whether Bailey’s right of confrontation was violated when, at the probation revocation hearing, the trial court admitted into evidence and relied on a letter from St. Paul House stating among other things that Bailey had been discharged from its program. The contents of the letter were hearsay; on this, both Bailey and the State agree. They do not agree, however, on the standards for admissibility of hearsay at probation revocation hearings, or the application of those standards to the facts of this case.

We conclude that ⁶⁹³ the evidence was properly admitted by the trial judge for the limited purpose of proving that Bailey did not complete the St. Paul House program. Therefore, we affirm the revocation of Bailey’s probation. I. At Bailey’s probation revocation hearing, the State called Bailey’s probation officer, Linda Anderson. Anderson testified that Bailey had not abided by the rules of his probation because he did not successfully complete the six month program at St. Paul House.

Anderson testified that the source for her initial report on Bailey’s probation violation was a letter on St. Paul House letterhead received on August 17, 1990, but she also had subsequent discussions with Bailey about his leaving St. Paul House. The letter on St. Paul House letterhead read as follows: August 17, 1990 To all concerned parties: Be it herein certified that one, Robert Bailey, has been officially discharged from residency at St. Paul House for the following: (3) FAILURE TO ATTEND MANDATORY HOUSE MEETINGS (1) VIOLENT, ABUSIVE & EXCESSIVELY DISRUPTIVE BEHAVIOR TO RESIDENTS AND STAFF (2) FAILURE TO PARTICIPATE IN A CONSISTENT SCHEDULED ACTIVITY AT LEAST FOUR (4) HOURS DAILY, MON—FRI. (4) FAILURE TO PERFORM HOUSEKEEPING DUTIES WITHOUT EXCUSE FROM STAFF Despite exhaustive efforts by staff to assist Robert in maintaining his placement at St. Paul House, he has persisted in violating the stated terms of residency which culminated in his nearly knocking down a female staff member as she entered the room while Robert was verbally abusing another staff person. ⁶⁹⁴ Robert continued his maniacal display of belligerence and stormed out of the house, subsequently driving off in a rage. This kind of behavior exemplifies the way Robert typically handles admonishment from staff regarding his frequent non-compliance with St. Paul House rules.

Furthermore, staff was threatened and harassed by Robert’s father, who obviously had been told by him that staff struck him. Robert could be heard making racial slurs in the background. His father also harassed a resident who refused to support them in conspiring to corroborate Robert’s vengefully contrived allegation. Robert has since been advised and instructed to pick-up any remaining belongings as well as the unused portion of his rent for the month of August.

Sincerely, L. Stark 1 Defense counsel objected to the introduction of this letter, asserting that the letter writer’s absence from the hearing denied Bailey his confrontation rights. The trial judge held that Bailey did not have a right to confront the author of the letter and admitted it. The trial judge ruled alternatively (1) that the letter was a business record and (2) even if it was not a business record, the letter was admissible because “the hearsay in it [was] inherently reliable, particularly as to him leaving the House.” After Anderson testified, Bailey’s father then testified on his son’s behalf. Bailey’s father acknowledged that his son did not complete the St. Paul House program, although he contended that Bailey told him that he was abused at St. Paul House and thrown out because he could not get a job.

Bailey did not testify on his own behalf. On the basis of the evidence before the court, the circuit court revoked Bailey’s probation. ⁶⁹⁵ Bailey appealed from the trial judge’s decision to admit the St. Paul House letter and from the subsequent revocation of his probation.

II

A probation revocation hearing “typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.” Wink v. State, 317 Md. 330, 332 , 563 A.2d 414, 415 (1989) (quoting Black v. Romano, 471 U.S. 606, 611 , 105 S.Ct. 2254, 2257 , 85 L.Ed.2d 636, 642 (1985)). Initially, the State carries the burden of proving the probation violation, and must do so by a preponderance of the evidence. Wink, 317 Md. at 332 , 563 A.2d at 415 . In the instant case, the State would have the burden of proving that Bailey failed to successfully complete the six month St. Paul House program.

If the State meets this burden, the burden of persuasion shifts to the probationer, and “ordinarily probation may not be revoked if the probationer proves that* his failure to comply was not willful but rather resulted from factors beyond his control and through no fault of his own.” Humphrey v. State, 290 Md. 164, 167-68 , 428 A.2d 440, 443 (1981) (emphasis added); Turner v. State, 307 Md. 618, 626 , 516 A.2d 579, 583 (1986); Hudgins v. State, 292 Md. 342, 348-49 , 438 A.2d 928, 931 (1982); Coles v. State, 290 Md. 296, 308 , 429 A.2d 1029, 1035 (1981); see also 3 LaFave & Israel, Criminal Procedure § 25.4, at 154 (1984). Coles v. State, 290 Md. 296 , 429 A.2d 1029 (1981), illustrates the distribution of the burdens of proof and persuasion at probation revocation hearings. In Coles , the defendant was convicted of public assistance fraud. The circuit judge gave Coles a suspended sentence and placed him on probation on the condition that he make restitution of over $30,000.

When Coles failed to make restitution, the circuit court revoked his probation. On appeal we affirmed the ⁶⁹⁶ circuit court and applied Humphrey’s two-step framework. We reasoned that at a probation revocation hearing “the judge assumes the role of factfinder to determine: in the first instance, whether the State has met its obligation of showing that there has been a failure of compliance with a condition of probation, and if so, secondly, whether the probationer has carried out his burden of establishing that the violation ‘resulted from factors beyond his control and through no fault of his own.’ ” (Emphasis added). Id. at 308 , 429 A.2d at 1035 (quoting Humphrey, 290 Md. at 168 , 428 A.2d at 443 ).

In Coles , the trial judge found that Coles had not met his burden of proving that his violation was non-willful, and therefore did not err in revoking his probation. Id. [290 Md.] at 309, 429 A.2d at 1035 . The trial court’s determination to revoke probation is reviewable by an appellate court on an abuse of discretion standard. State v. Dopkowski, 325 Md. 671, 678 , 602 A.2d 1185, 1188 (1992).

Ordinarily, “[a]buse of discretion will be found only if the trial court has erroneously construed the conditions of probation, has made factual findings that are clearly erroneous, or has acted arbitrarily or capriciously in revoking probation.” Id. (quoting Herold v. State, 52 Md.App. 295, 303 , 449 A.2d 429, 433 (1982)).

III

Bailey contends that the St. Paul House letter constituted inadmissible hearsay and violated his right of confrontation. Bailey first argues that the St. Paul House letter does not meet the requirements of the business records exception to the hearsay rule codified in Maryland Code (1974, 1989 RepLVol.), Courts & Judicial Proceedings Article, § 10-101. 2 ⁶⁹⁷ Further, he argues that the letter is also too unreliable to be admitted under even the relaxed evidentiary standards which he acknowledges are permitted in a probation revocation hearing. A. The record indicates that the St. Paul House letter was relied on by the trial judge to establish the fact that Bailey left St. Paul House before successfully completing the six month program. Bailey initially contends that the letter was inadmissible hearsay because it was neither a business record of the Division of Parole and Probation nor of St. Paul House.

Ordinarily we might begin our analysis by determining whether the letter met the technical requirements of a business record and was therefore admissible as an exception to the hearsay rule. In the instant case, we see no need to make the determination of whether the letter was admissible as a business record of the Division or of St. Paul House. Even if we assume that the letter could not be admitted as a business record, it will nonetheless be admissible as “reasonably reliable hearsay” under the standards we discuss below. B. This Court has characterized probation as “a matter of grace, not entitlement, which permits a wrongdoer to keep his freedom ‘as long as he conducts himself in a ⁶⁹⁸ manner consonant with established communal standards and the safety of society.’ ” Kaylor v. State, 285 Md. 66, 75 , 400 A.2d 419, 424 (1979) (quoting Scott v. State, 238 Md. 265 , 208 A.2d 575 (1965)).

Thus, the rules of evidence, including rules against the admission of hearsay, are relaxed at probation revocation hearings. 3 Further, because probation revocation is not a stage of the criminal process, the full panoply of rights due a defendant in a criminal prosecution is not required at a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759-60 , 36 L.Ed.2d 656, 662 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484, 494 (1972); see also Chase v. State, 309 Md. 224, 239 , 522 A.2d 1348, 1355 (1987); Howlett v. State, 295 Md. 419, 424 , 456 A.2d 375, 378 (1983). Nonetheless, a probationer is entitled to due process at such a hearing. Gagnon, 411 U.S. at 783 n. 4, 93 S.Ct. at 1760 n. 4, 36 L.Ed.2d at 662 n. 4 (citing Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972)).

In particular, we recognized in State v. Fuller, 308 Md. 547, 552-53 , 520 A.2d 1315, 1317-18 (1987), that there is some right of confrontation, pursuant to the Sixth Amendment to the United States Constitution, which is guaranteed to a probationer at a probation revocation hearing. The right of confrontation at a probation revocation hearing differs, however, from the right of confrontation at a criminal trial and some hearsay may be admitted in a revocation hearing. Id. Proffered evidence generally is first tested against the formal rules of evidence to determine whether it fits any of the “firmly rooted” exceptions to the hearsay rule.

If it fits, then it ordinarily will be admitted at a criminal trial or a probation revocation proceeding over a Confronta ⁶⁹⁹ tion Clause objection. White v. Illinois, — U.S. -, -, 112 S.Ct. 736, 743 , 116 L.Ed.2d 848, 859 (1992); Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597, 608 (1980) (“‘hearsay rules and the Confrontation Clause are generally designed to protect similar values ... and stem from the same roots’ ’’ (Citations omitted)). However, hearsay evidence not coming within any firmly rooted hearsay exception may still be admitted at a probation revocation hearing if the trial judge decides that it is “reasonably reliable” and determines that there is good cause for its admission. Fuller, 308 Md. at 553 , 520 A.2d at 1318 .

The question of what constitutes good cause to admit hearsay has never been fully resolved in Maryland. As we noted in Fuller , the Supreme Court has not provided much guidance on the subject. Id. at 553 n. 5, 520 A.2d at 1318 n. 5. We recognized in Fuller that good cause “need not reach the high standard governing the admissibility of hearsay evidence at criminal trials.” Id.

Some of the factors that are relevant to this good cause determination are: the availability of the hearsay declarant, the reliability of the State’s evidence offered in lieu of live testimony, and whether the evidence is offered to prove the principal contested issue in the violation or a matter peripheral thereto. Id. at 553-54 n. 5, 520 A.2d at 1318 n. 5. In determining whether there is good cause to admit hearsay in a probation revocation hearing, it is obvious that the most important factor is the reliability of the proffered hearsay evidence. Indeed, many courts have held that whenever the proffered hearsay evidence has substantial guarantees of trustworthiness the hearsay is admissible without the need to establish any additional good cause.

See, e.g., Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984); United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir.1978); United States v. Pattman, 535 F.2d 1062, 1064 (8th Cir.1976). We agree with the statement in Egerstaffer that “a probationer’s due process rights will be amply protected