Thompson v. State

DAVIS, Judge. Tiara Cardell Thompson, appellant, was the subject of a probation revocation hearing in the Circuit Court for Prince George’s County on May 3, 2002. The trial judge found that appellant had violated a condition of his probation as a result of his involvement in another crime and imposed a six-year term of incarceration. Appellant filed an appeal on June 3, 2002.

Appellant presents one question for our review, which we rephrase as follows: Did the trial court err in revoking appellant’s probation? We answer the question in the affirmative and, accordingly, vacate the judgment of the circuit court. ²⁴² FACTUAL BACKGROUND On August 6, 1999, appellant pled guilty to second-degree assault and was sentenced by the trial judge to eight years’ incarceration, with all but 198 days suspended. The trial judge further ordered that appellant be placed on probation for one year following his incarceration. On November 11,1999, while appellant was on probation, he was arrested on charges stemming from the murder of Clifford Bell in Prince George’s County on the previous day.

Appellant was convicted on June 29, 2000 of second degree murder and use of a handgun in the commission of a felony or crime of violence and, on August 25, 2000, the circuit court sentenced appellant to forty years’ incarceration. On direct appeal, we ordered a limited remand for the circuit court to consider whether certain search warrants executed and utilized to search appellant’s apartment had been properly authorized by a judge. Thompson v. State, 139 Md.App. 501 , 776 A.2d 99 (2001). On remand, the circuit court determined that the warrants were invalid and, on November 28, 2001, granted appellant a new trial.

Appellant’s second trial commenced on March 25, 2002, at the conclusion of which a jury ultimately acquitted appellant on all charges. After the acquittal, the State requested that appellant’s probation in the instant case be revoked for murdering Bell. The matter came before the trial judge on May 3, 2002. As part of its case, the State presented transcripts of the testimony of two witnesses, Joseph Montgomery and Renee Beaty, adduced at appellant’s previous trials.

Montgomery had testified that he was with appellant and Bell in an apartment complex on November 10, 1999 and personally witnessed appellant shoot Bell during a dispute regarding the payment of money. Beaty testified that she was sitting on the steps in front of the apartment complex when she heard the gunfire and, within seconds, saw Bell and Montgomery run out of the building. She further testified that she ran for cover and witnessed appellant exiting the building several moments later. Over defense counsel’s objection, the trial judge admit ²⁴³ ted the transcripts in lieu of live testimony from Montgomery and Beaty.

The trial judge found that appellant had violated his probation by failing to obey all laws and imposed the eight-year sentence of incarceration with credit for two years and 335 days for time already served. This appeal followed. LEGAL ANALYSIS Appellant contends that the trial court improperly admitted the transcripts of Montgomery and Beaty when the State did not demonstrate good cause for failing to call the two witnesses to personally appear before the lower court. Alternatively, appellant argues that, if good cause existed, the transcripts do not fall into any recognized exception to the hearsay rule.

The State counters that the lower standard of proof and the relaxed rules of evidence for probation revocation hearings permit the trial judge to consider the transcripts in the place of live testimony as long as the testimony elicited in the transcripts was subject to cross-examination by the opposing party. We review a trial judge’s decision to revoke probation by the “abuse of discretion” standard. Bailey v. State, 327 Md. 689, 696 , 612 A.2d 288 (1992). Thus, a probation revocation will remain undisturbed on appeal unless it is “clearly erroneous or legally insufficient.” Gibson v. State, 328 Md. 687, 697 , 616 A.2d 877 (1992) (citing Wink v. State, 317 Md. 330, 339 , 563 A.2d 414 (1989)).

Probation is “ ‘a matter of grace, not entitlement’ ” that allows a defendant to maintain his or her freedom for as long as he or she follows the conditions of probation and acts in keeping with the standards and safety of the community. Bailey, 327 Md. at 697-98 , 612 A.2d 288 (quoting Kaylor v. State, 285 Md. 66, 75 , 400 A.2d 419 (1979)). Prior to the revocation of a defendant’s probation, a trial court is required to conduct a hearing pursuant to Maryland Rule 4-347(e). The rule permits the trial court to “conduct the revocation hearing in an informal manner and, in the interest of justice, ²⁴⁴ may decline strict application of the rules [of evidence set forth] in Title 5, except those relating to the competency of witnesses.” Md. Rule 4-347(e)(2). “Thus, the rules of evidence, including the rules against the admission of hearsay, are relaxed at probation revocation hearings.” Bailey, 327 Md. at 698 , 612 A.2d 288 .

In essence, Md. Rule 4-347 embodies the concept that probation revocation hearings are civil proceedings and, as a result, the “full panoply” of Constitutional rights that would be available to a defendant in a criminal trial are not available when a trial court considers whether an alleged violation of probation has occurred. Bailey, 327 Md. at 698 , 612 A.2d 288 ; Wink, 317 Md. at 334 , 563 A.2d 414 . Thus, a defendant’s probation may be revoked based on the lower civil standard of a preponderance of the evidence. Wink, 317 Md. at 334 , 563 A.2d 414 .

Because the trial court needs to be convinced only by a preponderance of the evidence, and not beyond a reasonable doubt, it is permissible for the lower court to revoke a defendant’s probation based on his or her involvement in an alleged crime even though the defendant was previously found not guilty of the same charges at trial. See Gibson, 328 Md. at 695 , 616 A.2d 877 . The Court of Appeals, however, has recognized a defendant’s right to confront witnesses and accusers during a probation revocation hearing pursuant to the Sixth Amendment of the U.S. Constitution in State v. Fuller, 308 Md. 547 , 520 A.2d 1315 (1987). In Fuller , the defendant was convicted of several theft offenses in two separate trials.

After the defendant was convicted in the first trial, he received a suspended sentence and was placed on three years’ probation. The second conviction resulted in another suspended sentence with five years’ probation. Thereafter, while on probation, the defendant was charged with uttering a bad check in an attempt to purchase an automobile from a dealership. The new charges, however, were placed on the stet docket.

The defendant appeared before the Circuit Court for Harford County for a consolidated hearing for the revocation of his ²⁴⁵ probation in each of his two earlier convictions. Over defense counsel’s objection, the trial court admitted and considered hearsay evidence from the stetted case, which consisted of testimony from a police officer who had investigated the matter. The police officer testified as to statements made to him by certain employees of the car dealership. Those employees, however, were not present at the hearing.

On appeal, the defendant argued that his due process right to confront and cross-examine adverse witnesses was violated as a result of the absence of the live testimony of the car dealership employees. In its analysis, the Court pointed out that, while a defendant in a probation revocation hearing may not be entitled to all of the protections provided by the U.S. Constitution, the defendant is entitled to “procedural due process” in order to ensure “a fair adjudicative procedure for determining the basis for the revocation of probation.” Id. at 552 , 520 A.2d 1315 (citing Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973)). Analyzing several factors from Gagnon , the Court explained that a defendant in a probation revocation hearing has “ ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ ” Id. The Court established a test to determine whether hearsay evidence was admissible despite an objection based on the Confrontation Clause: Where a party to a probation revocation hearing objects to the admission of hearsay evidence, the threshold question to be resolved is admissibility under the law of evidence of this State.

In making that determination the trial judge should keep in mind that in probation revocation proceedings formal rules of evidence are not applied, and that reasonably reliable hearsay may be received. Where there is a confrontation issue the trial judge must undertake additional analyses. The proffered evidence must be tested against the formal rules of evidence to determine whether it fits any of the exceptions to the hearsay rule. If it does, the evidence and exception should then be reviewed to deter ²⁴⁶ mine whether the criteria for satisfaction of the Confrontation Clause have been met.

If the criteria have been met, the evidence may be received on that basis, and no specific finding of good cause need be made. If, however, the proffered hearsay evidence runs afoul of rules of evidence applicable to revocation proceedings or the Confrontation Clause, it cannot be admitted unless it satisfies the standard of reasonable reliability and the trial judge makes, and states in the record, a specific finding of good cause. Fuller, 308 Md. at 552-53 , 520 A.2d 1315 (citation and footnotes omitted). Elaborating on the “good cause” requirement, the Court noted that an analysis of U.S. Supreme Court decisions provided “little guidance” but suggested that the trial court [may] evaluate such factors as: the explanation offered by the State for dispensing with the confrontation, the reliability of the evidence which the State offers in lieu of live testimony, and whether the evidence is offered to prove a probation violation or is merely offered as evidence of such matters as the defendant’s general character on probation.

Id. at 553-54, n. 5 , 520 A.2d 1315 . The Court determined that the defendant was denied his Sixth Amendment right to confront adverse witnesses when the trial court allowed the admission of the hearsay evidence at his probation revocation hearing. Id. at 554 , 520 A.2d 1315 . The Court held that it was error for the trial court to admit the police officer’s testimony “[b]eeause the record contain[ed] no finding of good cause for disallowing confrontation, and the excluded evidence [did] not appear to fall within any exception to the hearsay rule that also satisfies the Confrontation Clause.” Id.

Concluding its analysis, the Court applied the harmless error standard. The Court determined that the admission of the police officer’s testimony in the probation revocation hearing for defendant’s first theft conviction was not harmless beyond a reasonable doubt because of the strong likelihood that the hearsay evidence formed the trial judge’s ²⁴⁷ basis to revoke defendant’s probation. Id. The admission of the same hearsay evidence by the trial judge presiding over the probation revocation hearing for defendant’s second theft conviction, however, was determined to be harmless error, as other evidence regarding a separate and unrelated conviction of uttering bad checks was