Fuller v. State

ROBERT M. BELL, Judge. Having been convicted by two judges of the Circuit Court for Harford County of two separate violations of probation, his probation having been revoked in each case and the original sentences having been reimposed, Solomon Fuller, appellant, has appealed to this court, raising as bases for this appeal, several issues: 1. Did the court erroneously admit hearsay evidence? 2. Was Judge Whitfill’s finding that appellant either had the monies to pay the fines or engaged in criminal conduct a sufficient basis for revocation of probation? 3.

Did the courts err in revoking appellant’s probation for failure to pay restitution and court costs? 4. Does reversal of the conviction upon which the revocations of probation are based require reversal of the revocation orders? 5. May probation be revoked solely on the basis of a subsequent conviction which is pending on appeal at the time of the probation revocation? 6. Did the trial judges err by failing to afford appellant his right of allocution prior to sentencing?

For the reasons which will appear hereinafter, we will remand for further proceedings, consistent with this opinion. On February 16, 1983, following his conviction in. the Circuit Court for Harford County, of theft in case No. 8836, appellant was placed on probation, by Judge Cypert Whit-fill, for a period of three years in lieu of five years incarceration. Subsequently, on July 15, 1983, Judge Albert Close, of the same court, in respect of separate theft convictions, ³⁴⁴ in case No. 8891, sentenced him to ten years incarceration, which was suspended in favor of five years probation. 1 The probation conditions in each case included Rule No. 4-0bey all laws and Rule No. 9-Pay restitution and court costs. 2 Petitions to revoke appellant’s probation, for failure to comply with Rule No. 9, were filed in both cases on February 14, 1984. Judge Whitfill conducted hearings on the petition filed in case No. 8836 on March 29, and April 9, 1984 and found appellant guilty of violating his probation.

He held the disposition sub curia, however, pending decision on another charge for which appellant was awaiting trial. 3 Following the “stet” 4 of this charge, a supplemental petition alleging violation of Rule No. 4 5 was filed, on August 28, 1984, in both cases. Thereafter, on December 21, 1984, a hearing on both petitions was held with Judges Close and Whitfill presiding. At the hearing, the probation agent testified that appellant had not made payments toward costs in case No. 8836 or, despite a promise to do so in September, 1983, the costs and restitution in case No. 8891; that appellant had been incarcerated for a substantial portion of the probationary period; and that when not incarcer ³⁴⁵ ated appellant, though unemployed, looked for work. The probation agent also testified that when the payment plan was agreed upon, appellant indicated that he would have no problem making the payments required because his grandfather had left him some property.

A certified copy of the docket entries in case No. 9523, showing appellant’s conviction of four counts of “bad checks”, was admitted into evidence. Finally, the court took testimony from Deputy Stephen Rathsgeber and Officer Maurice Kerr, both of whom testified as to transactions or activities underlying the “stetted” charge. Deputy Rathsgeber, over appellant’s objection, 6 testified as follows. He was told by David Snyder at Brown’s Castle Toyota that appellant purchased a 1980 280Z from Brown’s Castle Toyota on August 20, 1983.

The salesman told Snyder that appellant paid, by check, $500.00 down. On September 13, 1983, appellant called Snyder and informed him that he had inadvertently written the check on a closed account and that he would send a check for the balance. The $500.00 check was returned by the bank marked, “account closed.” This latter information came from “employees” 7 of Brown’s Castle Toyota. Rathsgeber identified both the $500.00 check and an invoice evidencing the purchase of the automobile, which, over appellant’s objection that they had not been properly authenticated, were admitted into evidence.

On cross-examination, Rathsgeber acknowledged that he had no personal knowledge of the check or of the transactions about which he had testified and that, ³⁴⁶ because he did not know the appellant, he could not identify appellant’s signature. He did acknowledge, however, that the $500.00 check was made good on or about October 12, 1983. Officer Kerr testified that he saw appellant driving the 1980 Datsun 280Z, described in the invoice admitted into evidence, on October 13, 1983. He then related that, at the request of the assistant state’s attorney, he had spoken with a Captain Perry.

Over appellant’s objection, he related what Captain Perry had told him: the Datsun 280Z was the subject of litigation in the District Court of Harford County on February 7,1984, the litigants being the Virginia National Bank, the town of Aberdeen and appellant; the vehicle was awarded to the Virginia National Bank; and the court had determined that “$9,751.00 had been developed to be fraud from the Virginia National Bank” by appellant. 8 Kerr, like Rathsgeber, admitted having no first-hand knowledge of the transactions about which he had testified. He had not reviewed the court records, had not been present in court, and, except for having seen Perry reading from a memorandum from the town attorney to the police department, did not know the source of Captain Perry’s knowledge. Following argument of counsel, the trial judges, in separate opinions, delivered their decisions finding appellant guilty of violation of probation. Judge Whitfill ruled: As to case No. 8836, the matter was before me on March 29, 1984 on a petition for violation of probation.

At that time I found the defendant, Mr. Fuller, had violated his probation for failure to pay court costs and restitution, in accordance with his agreement. I had information before me at that time, even though he claimed to be unemployed, that he in fact had been able to purchase a new car. And I felt that if he had the ³⁴⁷ ability to purchase a new car, he certainly had the ability to make restitution towards a case in which there previously had been a car theft. Disposition upon that finding was withheld.

And thereafter the State filed a supplemental petition, on which evidence has been offered today. Again, I reaffirm the finding that the defendant, Mr. Fuller, is in violation of his probation for failure to make restitution and pay court costs. Even though his probation officer is of the opinion that he was unemployed and was unable to make restitution, when in fact he was able to purchase a new car, we have to reach one of two conclusions. Either he had the ability to make restitution or the purchase of the new car was the result of criminal activity.

And so the Brown Castle Toyota in fact received their money. And if Mr. Fuller had any money available, it should have gone towards the restitution in case 8836. I think the evidence is sufficient to also conclude that he was engaged in criminal activity in writing a check for $500.00 to Brown’s Castle Toyota on account that had been closed [sic]. And that as a result of that he, at least in part, received delivery of the Datsun 280Z.

Further, the certified docket entries in case 9523 are sufficient to conclude that he has violated his probation by being involved in criminal activity in writing additional bad checks. All three of those factors convince me that the probation should be revoked, and that the defendant should be required to serve the sentence previously imposed. Judge Close then rendered his decision: All right. With regard to case 8891, I am not going to provide any number of reasons why he should be revoked; simply the convictions in 9523 are sufficient bases for revocation.

So the court revokes his probation in that case and invokes his sentence. ³⁴⁸ 1, 2, 3, 4, 5 Conceding that under Raines v. State, 54 Md.App. 543 , 458 A.2d 1264 (1983), 9 we held, relying on Scott v. State, 238 Md. 265 , 208 A.2d 575 (1965), that hearsay evidence is admissible, in a probation violation proceeding, to prove the violation, appellant urges that “[t]he type of hearsay evidence considered in these cases is radically different from evidence admitted in the case at bar.” Therefore, he argues that neither Raines nor Scott permits the use of “unproven and inherently unreliable hearsay allegations of criminal conduct”, particularly where, as here, the evidence related to a charge which had been “stetted”. The State demurs, arguing that the hearsay evidence was properly admitted and the weight to be accorded it was for the court. 10 It is correct, as appellant asserts, that the hearsay evidence admitted in this case is significantly different in kind (we add, and extent) than that which was involved in Raines and Scott . In Raines , the evidence objected to was the testimony of a probation agent, not Raines’ agent, from records kept by the Department of Parole and Probation in the ordinary course of business. Although we concluded that the testimony, if hearsay, was admissible, we acknowledged that it may well have been rendered admissible by Courts Art., § 10-101. 11 In Scott , the hearsay testimony ³⁴⁹ complained of was in the nature of a prior inconsistent statement offered through the testimony of a police officer, when a witness recanted her prior statement given to the police.

In order to revoke probation, it is generally necessary that the State prove that the probationer has not complied with one or more lawful conditions of probation. Coles v. State, 290 Md. 296 , 429 A.2d 1029 (1981), Humphrey v. State, 290 Md. 164 , 428 A.2d 440 (1981). “The procedural protections afforded a probationer in a revocation of probation hearing are not equivalent to those afforded at a criminal trial. Formal procedures and the Rules of Evidence are not employed. Finally, before probation may be revoked, the trial court need only be reasonably satisfied that there was in fact a violation of probation.” Dean v. State, 291 Md. 198 , 434 A.2d 552 (1981).

See, Coles, supra, Scott, supra. Furthermore, a probationer may be found to have violated a condition of his probation requiring him to obey all laws even though he has not been convicted of a crime. Dean, supra. “If it is shown by independent, probative evidence, that the probationer had committed a crime subsequent to his probation and the trial court is reasonably satisfied by that evidence that the probationer committed the crime, probation may be revoked on the ground that the probationer violated the special condition of his probation that he obey all laws.” Id. at 203 , 434 A.2d 552 . With this framework in mind, we begin our consideration of appellant’s contentions by revisiting Morrissey v. Brew ³⁵⁰ er, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973), cases referred to in Raines .

Before the Supreme Court in Morrissey was the determination of the minimum requirements of due process in parole revocation proceedings. The Court developed and set out six factors which are included within such minimum requirements: (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 traditional officers or lawyers; and (f) a written statement by the fact finder as to the evidence relied on and the reasons for revoking parole. The Court emphasized that the second stage 12 of parole revocation is not a criminal prosecution; “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.” Id., 408 U.S. at 489 , 92 S.Ct. at 2604 . Gagnon followed a year later.

The Supreme Court held “that a probationer, like a parolee, is entitled to a preliminary and final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra ”. (emphasis added) Id., 411 U.S. at 782 , 93 S.Ct. at 1760 . With particular emphasis on a probationer’s right to present witnesses and to confront and cross-examine adverse witnesses, it noted: (at n. 5, p. 783, 93 S.Ct. p. 1760) Petitioner’s greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away. While in some cases there is simply no ³⁵¹ adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions and documentary evidence.

Morrissey and Gagnon , thus, recognize that hearsay evidence, which does not fall within any exception to the hearsay rule and, thus, normally inadmissible in criminal trials, may be admissible in parole and probation revocation proceedings. It is implicit in Morrissey and Gagnon , however, that such hearsay evidence must be reliable. United States v. McCallum, 677 F.2d 1024 (4th Cir.1982); Prellewitz v. Berg, 578 F.2d 190 (7th Cir.1978), Commonwealth v. Rossetti, 255 Pa.Super. 524 , 388 A.2d 1090 (1978), State v. Charles DeRoche, 120 R.I. 523 , 389 A.2d 1229 (1978), State v. Marrapese, 122 R.I. 494 , 409 A.2d 544 (1979), Hill v. State, 350 So.2d 716 (Ala.1977). Gagnon’s analysis pertaining to when counsel should be appointed at revocation proceedings lends support to this proposition.

These cases also recognize the right of a probationer or parolee, in those proceedings, to confront and cross-examine adverse witnesses. When the right of confrontation conflicts with the admissibility of hearsay, 13 that conflict, as Gagnon in particular makes clear, is resolved in favor of confrontation and cross-examination. This issue, in this precise context, has not been considered by a Maryland court. The issue was potentially before the Court of Appeals in Dean v. State, supra.

There, at a revocation hearing, a police officer, with no first hand knowledge of the facts and who was not present during the kidnapping trial, but who had personally investigated the kidnapping case, was permitted to recount, over objection, ³⁵² the underlying facts and circumstances surrounding the kidnapping. His testimony was based on statements made by the victims and by the probationer’s co-defendant. Because it found that fundamental fairness required vacation of the revocation, which was based on a conviction later determined to have been invalid, the Court did not consider the probationer’s contention that his constitutional right to confrontation was violated when his probation was revoked, at least in part, on the basis of hearsay evidence. 14 Nor was the issue raised in Porreca v. State, 56 Md.App. 63 , 466 A.2d 550 (1983). There, the witnesses to the events which formed the basis for the violation testified at the revocation hearing; the probationer thus was afforded the right of