State of Oklahoma v. Jerry Lynn Hampton

Hugo, Oklahoma, criminal defense lawyer represented the Defendant in a revocation action.

In the District Court of Pushmataha County, Case No. CF-2002-119, Appellant, Jerry Lynn Hampton, entered a plea of nolo contendere to Count 1, Unlawful Possession of Controlled Drug (Methamphetamine); Count 2, Unlawful Possession of Controlled Drug (Methamphetamine); and Count 3, Unlawful Possession of Paraphernalia. The Honorable Lowell Burgess, Jr., Associate District Judge, on March 7, 2003, sentenced Appellant to concurrent terms of five (5) years imprisonment on Counts 1 and 2 and to one (1) year on Count 3. Pursuant to a plea agreement, Judge Burgess suspended execution of these sentences conditioned upon written rules of probation that required Appellant, among other things, not to possess illegal drugs; not to visit places where alcohol or illegal drugs are unlawfully sold, dispensed, or used; and not to violate any city, state, or federal law.

On March 21, 2007, the State filed an Application to Revoke Suspended Sentence on Counts 1 and 2. This Application alleged that Appellant had violated the above conditions of his probation by having committed the offenses of Attempted Manufacture of a Controlled Dangerous Substance; Unlawful Cultivation of Marijuana; and Unlawful Possession of Controlled Dangerous Substance, all as alleged in Pushmataha District Court Case No. CF-2007-35. The evidentiary hearing on the Application to Revoke was joined with the preliminary hearing on Appellant’s new charges. Following that hearing, the Honorable Gary L. Brock, Special Judge, on May 16, 2007, found Appellant violated his probation and revoked a three (3) year, six (6) month portion of the suspension order.
¶11 Procedures for revoking a suspended sentence are established in 22 O.S.Supp.2008, § 991b . 3 That statute requires the State, among other things, to present "competent evidence justifying the revocation of the suspended sentence." 4 Additionally, the statute provides that a defendant "being considered for revocation at the hearing shall have the right to be represented by counsel, to present competent evidence in his or her own behalf and to be confronted by the witnesses against the defendant." 5 These rights and requirements predate this state’s 1978 adoption of the Oklahoma Evidence Code, and they have been a part of Section 991b since it was first enacted in 1969.

Revocation procedures are also guided by two leading U.S. Supreme Court cases: Morrissey v. Brewer7 and Gagnon v. Scarpelli.8 In 1972, Morrissey established minimum due process standards for terminating parole, 9 and in the following year, Scarpelli adopted those same standards for terminating individuals from probation under a suspended sentence.10 One of the minimum due process standards identified by the Supreme Court in those decisions was "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."

Revocation procedures are also guided by two leading U.S. Supreme Court cases: Morrissey v. Brewer7 and Gagnon v. Scarpelli.8 In 1972, Morrissey established minimum due process standards for terminating parole, 9 and in the following year, Scarpelli adopted those same standards for terminating individuals from probation under a suspended sentence.10 One of the minimum due process standards identified by the Supreme Court in those decisions was "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)."

¶14 In Wortham, the Court found that a probationer’s right of confrontation is not the same as that granted defendants under the Sixth Amendment of the U.S. Constitution in criminal prosecutions, but it is instead a right that arises from due process considerations.13 Accordingly, a probationer’s right of confrontation is subject to "relaxed due process standards" that may

permit introduction of evidence such as "letters, affidavits, and other material that would not be admissible in an adversary criminal trial," Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604, and do not "prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 1760 n. 5, 36 L.Ed.2d 656 (1973).

It therefore follows that a probationer’s right of confrontation and cross-examination is not absolute, and that there are instances in revocation proceedings when a trial court, consistent with due process, can allow evidence of an out-of-court statement without the declarant being present for cross-examination.

For these same reasons, we hold the substantial trustworthiness test is a procedure upon which Oklahoma trial judges may rely in deciding when hearsay evidence can be considered over an objection to a probationer’s right of confrontation.14 Accordingly, we conclude that the due process confrontation requirement applicable to revocations matters will generally be satisfied when a trial court determines that proffered hearsay bears substantial guarantees of trustworthiness or otherwise has sufficient indicia of reliability.

Today we also hold that an out-of-court statement will presumptively satisfy the confrontation rights of a probationer when that statement is one that would normally be admissible under an established exception to the rules against hearsay. 16 While the rules of evidence in Oklahoma (as well as those rules of evidence found in the federal system and many other jurisdictions), contain provisions declaring such rules inapplicable to probation revocation proceedings, 17 courts in such jurisdictions have found that an out-of-court statement satisfies the due process confrontation requirement when that out-of-court statement is one falling under a long-standing exception to the rules against hearsay. 1

Although concluding that in revocation proceedings, a trial court may rely upon an out-of-court statement that bears substantial guarantees of trustworthiness without violating a defendant’s right of confrontation, we continue to hold to that authority indicating revocation cannot be based entirely upon hearsay evidence.

At Appellant’s revocation hearing, the out-of-court statement partly relied upon for accurate knowledge of Appellant’s behavior while on probation was verified by other evidence before the trial court. Because that out-of-court statement had substantial guarantees of trustworthiness, the good cause necessary to meet the confrontation requirements of Morrissey, Scarpelli, and Section 991b was present, and therefore it was not error for the District Court to rely on it. For this reason, there was sufficient competent evidence revealing Appellant violated his probation and that the violation justified partial revocation.

At Appellant’s revocation hearing, the out-of-court statement partly relied upon for accurate knowledge of Appellant’s behavior while on probation was verified by other evidence before the trial court. Because that out-of-court statement had substantial guarantees of trustworthiness, the good cause necessary to meet the confrontation requirements of Morrissey, Scarpelli, and Section 991b was present, and therefore it was not error for the District Court to rely on it. For this reason, there was sufficient competent evidence revealing Appellant violated his probation and that the violation justified partial revocation.