Wink v. State

RODOWSKY, Judge. The instant appeal is in a probation revocation case. In the trial court that kind of case “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.” Black v. Romano, 471 U.S. 606, 611 , 105 S.Ct. 2254, 2257 , 85 L.Ed.2d 636, 642 (1985). On the first issue the State has both the burden to come forward with evidence and the burden of persuasion.

McDonald v. State, 314 Md. 271, 280 , 550 A.2d 696, 700 (1988). Ever since Scott v. State, 238 Md. 265 , 208 A.2d 575 (1965), this Court has usually spoken of reasonable satisfaction as the measure of persuasion which satisfies the burden of persuasion on the first issue. Petitioner, Edward Wink, Jr. (Wink), contends that reasonable satisfaction means clear and convincing evidence. The Court of Special Appeals, in rejecting Wink’s argument, found to be persuasive cases from other jurisdictions which “have defined ‘reasonable certainty’ or ‘reasonably satisfied’ as requiring less evidence than a preponderance.” Wink v. State, 76 Md.App. 677, 681 , 547 A.2d 1122, 1124 (1988).

We shall hold that the reasonable satisfaction standard is the preponderance of the evidence standard. The facts were succinctly stated by the Court of Special Appeals. “[Wink] was charged with violating Rule 8 of his probation, which required that he not ‘illegally possess, use or sell any narcotic drug, controlled dangerous substance, or ³³³ related paraphernalia.’ At the revocation hearing, the State presented evidence that, upon execution of a search warrant at [Wink’s] home, the following items were seized: from a kitchen cabinet, two bottles of parsley flakes; from the kitchen trash can, an empty parsley flake bottle, a vanilla extract bottle, and a sandwich bag with parsley flake residue; from the refrigerator, a glass jar containing several foil-wrapped packets of parsley, and two plastic film cannisters filled with parsley flakes; from the master bedroom, a set of scales, several cut squares of aluminum foil, and a C & P Telephone bill addressed to [Wink]. The State also presented expert testimony that parsley flakes are commonly used as a vehicle for, or diluent of, liquid PCP, and that individual quantities of PCP are commonly distributed as foil-wrapped packets of PCP-laced parsley. “The court concluded that [Wink] had violated his probation by possessing drug paraphernalia, revoked [Wink’s] probation, and reimposed two years of the original sentence, with credit for eighteen months already served.” Id. at 678-79 , 547 A.2d at 1123 . At the conclusion of the State’s case in chief Wink moved “to dismiss” the petition for want of legally sufficient evidence.

The argument emphasized lack of proof directly placing the paraphernalia in Wink’s possession. In the course of that argument the following colloquy occurred: “[DEFENSE COUNSEL]: They have to prove every element to a reasonable certainty. That is the test[—Jby a reasonable certainty. “THE COURT: By a preponderance of the evidence. “[DEFENSE COUNSEL]: No, sir, reasonable certainty. That is the case law dealing with violation of probations, which is a higher standard than preponderance of the evidence and some people think it is [a] higher standard than clear and convincing.” The circuit court denied the motion.

Wink did not produce any evidence, and the circuit court found facts constituting ³³⁴ a violation and exercised its discretion to revoke. We shall assume that in making its fact-findings the circuit court applied the preponderance of the evidence standard in accordance with its announced understanding of the law as indicated above. Before the Court of Special Appeals Wink again argued that reasonable satisfaction is a more onerous standard than preponderance. The Court of Special Appeals disagreed, and affirmed.

Relying on decisions from other courts, to be discussed below, it concluded that a standard of reasonable satisfaction required less evidence than a preponderance. In any event, it also concluded that reasonable satisfaction is no more stringent a standard than preponderance, based on decisions of this Court. We granted Wink’s petition for certiorari which raises the following question: “Did the Court of Special Appeals err in holding that the preponderance of evidence standard applied by the trial judge met the reasonably satisfied standard required in violation of probation proceedings?” After the Court of Special Appeals’ decision in Wink , this Court decided McDonald v. State, 314 Md. 271 , 550 A.2d 696 (1988). McDonald’s probation had been revoked, based on a urinalysis, for violation of the condition requiring abstinence from drugs.

At issue was the sufficiency of the State’s evidence to demonstrate that the sample relied upon was from McDonald. Judge Adkins for the Court said that “[i]n a case like this one, in which one violation charged is the use of drugs, the State has the burden of proving, by a preponderance, that the probationer used drugs.” McDonald, 314 Md. at 280 , 550 A.2d at 700 . Further, utilizing the civil standard of persuasion, i.e., preponderance, follows logically from this Court’s characterization of probation revocation cases as civil proceedings. See Hersch and Cleary v. State, 317 Md. 200 , 562 A.2d 1254 (1989); Chase v. State, 309 Md. 224, 238 , 522 A.2d 1348 , ³³⁵ 1355 (1987); Howlett v. State, 295 Md. 419, 424 , 456 A.2d 375, 378 (1983).

Nevertheless, our cases have regularly employed the reasonable satisfaction standard in describing the degree to which the State must persuade the court in a probation revocation proceeding. Tracing the origin and use of reasonable satisfaction in our cases demonstrates that that expression does not connote a different standard from preponderance of the evidence on a fact-finding issue, e.g., whether Wink possessed the paraphernalia seized in his home. The historical trail begins with Pub.L. No. 66-596, the Act of March 4, 1925, Ch. 521, 43 Stat. 1259 et seq. (as amended by the Act of June 16, 1933, Ch. 97, 48 Stat. 256 , in a manner immaterial to the instant case) which was codified as 18 U.S.C. §§ 724-26 (1940).

Section 724 provided that “when it shall appear to the satisfaction of the court that the ends of justice and the best interest of the public, as well as [of] the defendant, will be served thereby, [the court] shall have power ... to suspend the imposition or execution of sentence and to place the defendant upon probation____” Section 725 dealt with revocation but did not express any standard, limitation, or condition on revocation, other than that the arrested probationer was to be brought before the court. See Escoe v. Zerbst, 295 U.S. 490 , 55 S.Ct. 818 , 79 L.Ed. 1566 (1935). In 1929 the United States District Court for the Northern District of Georgia decided a habeas corpus case brought by a prisoner at the Atlanta penitentiary whose probation had been revoked by a federal court in Florida. Campbell v. Aderhold, 36 F.2d 366 (D.C.N.D.Ga.1929).

The prisoner contended, inter alia, that there had been insufficient evidence to support revocation. Part of the rationale was as follows: “[T]he ground of probation declared by the statute is that the court be satisfied 'that the ends of justice and the best interests of the public, as well as of the defendant, will be subserved thereby.’ Probation is wholly discre ³³⁶ tionary and of grace, and not at all a right. It is in no sense a bargain. If the judge becomes satisfied that the probation is a failure and the best interests of the public and the defendant are not being subserved, and that different treatment is required, he has the right and the duty to terminate the experiment and let the law take its original course.

It may be that the probationer cannot be proven beyond a reasonable doubt to have committed a particular crime, and yet his course of conduct along that line may be such as to satisfy the judge that the probation ought to be revoked. Unless the broad discretion to revoke be fully recognized, much greater caution will have to be exercised in extending this grace originally, and the benefits of the act will become greatly restricted. The revocation in this case was not put expressly upon the commission of a crime, but upon the broad ground that the conduct of the probationer had not been good, as required in the conditions of the probation.” Id. at 367 . Noteworthy is that Campbell draws into § 736 as a standard for revocation satisfaction of the court as described in § 735 for the imposition of probation.

A portion of the above-quoted excerpt from Campbell was quoted in United States v. Hanson, 49 F.Supp. 355 (D.C.E.D.Ark.1943). The next stop on the trail is Manning v. United States, 161 F.2d 827 (5th Cir.), cert. denied, 332 U.S. 792 , 68 S.Ct. 102 , 92 L.Ed. 374 (1947). Manning seems to have been a “snake oil” seller. While on probation after having been convicted of violating the Federal Food, Drug and Cosmetic Act, Manning resumed advertising, diagnosing ailments and preparing and selling medicines represented as cures.

Based on proof of this conduct, Manning’s probation was revoked despite his argument that the conduct had not been the basis of any criminal conviction. In rejecting the latter point the Fifth Circuit said: “It may be, as appellant contends[,] that the evidence on the probation revocation hearing would not be sufficient to support a conviction under federal laws for using ³³⁷ the mails to defraud or under Alabama law for practicing medicine without a license. But proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses.

All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. Campbell v. Aderhold, D.C., 36 F.2d 366 ; United States v. Hanson, D.C., 49 F.Supp. 355 .”