Wilson v. State

⁵²⁹ BISHOP, Judge. Bryant Cheyenne Wilson appeals from the decision of the Circuit Court for Kent County to revoke both his probation and his work release program. He raises three issues: I. Whether the introduction of hearsay evidence during the revocation proceeding infringed on his constitutional right to confront and cross-examine witnesses?

II

Whether the evidence was sufficient to prove that appellant used marijuana while on a work release program?

III

Whether it is lawful for the trial court to revoke appellant’s probation before it actually begins based on his conduct which violated his work release rules but is noncriminal in nature? FACTS Appellant pled guilty to possession of marijuana and carrying a handgun. For the marijuana violation, appellant received a one-year sentence with six months suspended and a $1,000.00 fine. For the handgun violation, he received a consecutive three-year sentence with two years suspended.

Upon his release, appellant was to serve concurrent, five-year periods of probation, the conditions of which included payment of the $1,000.00 fine, $75.00 in court costs, and $250.00 in public defender fees and participation in a drug program. Further, his eighteen months of incarceration, less credit for time served, were to be carried out in the Kent County Jail on a work release program, provided he worked and reimbursed the County for his living costs at the jail. He received this sentence on April 2, 1986. Shortly thereafter, the court ordered appellant to show cause why the suspension of sentence and his probation should not be stricken.

This order was based on the alleged activity of appellant on April 16. At the show cause hearing, the State adduced evidence from appellant’s probation agent, Alice Johnson. She testi ⁵³⁰ fied that just after appellant was sentenced, she was assigned to handle the initiation of appellant’s work release and future probation. The next day appellant secured a position at a car dealership.

The cynosure of appellant’s hearing, the day of April 16, began with appellant leaving the jail at 7:20 a.m. and reporting to work. Later that morning he went to Kent and Queen Anne’s Hospital emergency room where he waited for two hours and then was told to call Dr. Arrabel and schedule an appointment for that day. Appellant was driven to the doctor’s office by a Ms. Joan Garner. The doctor diagnosed a strep infection of the throat.

Finished with the doctor shortly after noon, appellant hitchhiked back to Chestertown, arriving at 2:30 p.m. He then bought medication and went to a residence to check on his car. He returned to the jail at 4:15 p.m. Agent Johnson testified that, as part of the normal procedure accorded those granted work release, appellant was informed on April 3 of the standard work release guidelines.

The agent explained each of the nine written rules to appellant. At that time, appellant indicated he understood the rules and he signed the copy containing the rules. One of the rules implicated by appellant’s conduct on the 16th of April was Rule 6 which stated “You are authorized to take meals at public restaurants or your place of employment. Other than eating your meals out, you may go nowhere else but your place of employment.

You cannot return home, go to a motel, or any other place.” Agent Johnson testified that appellant told her that he visited a residence in Chestertown to check on his car. When appellant told her about his trip to check on his car, her suspicion was aroused as to how he spent the rest of the day. Ms. Johnson stated, “I wanted some indication that he had not been using any illicit drugs, considering that he had been absent or at a place other than his employment.” On April 17, the day after his unauthorized visit, she asked appellant for a urine sample, but he was unable to ⁵³¹ “void”. She left urine testing supplies for him to fill over the weekend, but appellant did not use them.

On April 21, Major Lamont Cooke, the jail administrator, supervised and obtained a urine sample from appellant which tested positive. This violated work release Rule 2 which states: “The consumption of alcohol and non-prescribed drugs, both in jail and while going to and from work and while at work is strictly prohibited____ The use of either alcohol or drugs will result in the loss of work release privileges.” Based on the two alleged violations, the State instituted work release and probation revocation proceedings. At the hearing’s conclusion, the trial judge ruled that appellant violated both rules and revoked his work release and probation. I. & II.

The Urine Test, Due Process And Sufficiency Appellant contends that, as a probationer, his due process right of cross-examination was violated at his revocation hearing. Before we address his argument, we first explain the factual practice for this contention. On April 21, at the request of Probation Agent Johnson, Major Cooke, the Kent County Jail Administrator, obtained a urine sample from appellant. He gave it to Ms. Johnson who mailed it to National Health Laboratories (NHL), a company located in Vienna, Virginia which contracted with the Maryland State Division of Parole and Probation to test for drugs in urine.

On April 25, the report received by her indicated a numerical value of 95 for marijuana. Over objection, the State introduced the report into evidence at the revocation proceeding. Agent Johnson opined that a value of 95 revealed the presence of marijuana in appellant’s urine and its recent use by him. She was told by NHL that the test used may detect marijuana ingested up to 25 to 30 days prior to urination.

Arthur Ford, a field supervisor for the Kent County Parole and Probation office, testified that NHL has had the ⁵³² Parole and Probation Division contract for drug screening tests since August, 1983. In July, 1983, he attended a half-day training session which consisted of discussions of the various testing procedures and the interpretation of test results. He explained the numerical analysis assigned to the urine test by NHL and that a value from 0 to 22 is not considered a positive reading. Any value over 22, however, is considered positive and the higher the value the more recent the use.

The highest positive value he had seen was 105. Over objection he stated his opinion that the 95 reading assigned to appellant indicated he had recently used marijuana. Appellant argues that he was deprived of his due process right in these proceedings because he did not have the opportunity to confront and cross-examine adverse witnesses. He objects to the report as hearsay.

He also asserts that because an expert from NHL was not required to testify to support the content of the report, he was deprived of his right to cross-examine witnesses. He further argues that because NHL personnel did not testify and no witness for the State knew what scientific procedure was used or the test’s degree of accuracy, reliability was presumed, not proven. A probationer has a limited liberty interest; nevertheless, that person is entitled to minimal due process rights. Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972).

In Morrissey and Gag-non, the Supreme Court outlined the minimum due process requirements as applied to parole and probation hearings. Of the six requirements, the only one implicated in this case is the right to confront and cross-examine adverse witnesses. The Morrissey Court held that parolees have “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation.)” 408 U.S. at 489 , 92 S.Ct. at 2604 . The ⁵³³ Court emphasized, however, that the process must be flexible to the extent that a court could consider documentary evidence which may not meet evidentiary requirements applicable to criminal trials.

Id. The Court in Gagnon held that probationers enjoy the same procedural rights accorded parolees in Morrissey. 411 U.S. at 782 , 93 S.Ct. at 1759 . With respect to cross-examination, Gagnon struck a cautionary note: An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses. 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 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. 411 U.S. at 783 n. 5, 93 S.Ct. at 1760 n. 5. This Court recently