Brisher v. State
2016 Ark. App. 488
| Ark. Ct. App. | 2016Background
- Ellis Lee Brisher pled guilty to traffic-related offenses and received a six-year suspended imposition of sentence (SIS).
- The State filed a petition to revoke Brisher’s SIS, alleging he committed delivery of oxycodone during a controlled buy on January 22, 2015.
- Detective Mark House and Captain Shawn Firestine supervised a confidential informant (CI) who made the purchase; the CI wore a wire, turned over five oxycodone pills, and allegedly identified Brisher as the seller.
- The officers testified about what the CI reported and the audio of the controlled buy was played; the CI did not testify and the State refused to disclose the CI’s identity at the hearing.
- Brisher objected under the Sixth Amendment confrontation clause; the circuit court overruled his objections and revoked his SIS, sentencing him to six years’ imprisonment.
- On appeal, the Arkansas Court of Appeals held the trial court violated Brisher’s confrontation rights by admitting testimonial statements of the CI without finding good cause to preclude confrontation; the error was not harmless and the conviction was reversed and remanded.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Brisher) | Held |
|---|---|---|---|
| Whether admitting officers’ testimony recounting CI’s identification violated the Sixth Amendment right to confrontation in a revocation hearing | The court could infer it was impractical to require the CI to testify (CI still working for police); testimony and tape were reliable | Admission of CI’s identification via officers violated Brisher’s confrontation rights because CI did not testify and no good-cause finding was made | Reversed: admission violated confrontation clause because the State offered no explanation and the court made no good-cause finding |
| Whether any Confrontation Clause error was harmless | Error was harmless because tape and other evidence supported identification (State’s contention) | Error was prejudicial because officers did not witness the buy, identification rested on CI, and there was no cross-examination of CI | Not harmless: officers’ testimony was crucial, noncumulative, and lacked adequate corroboration; reversal required |
Key Cases Cited
- Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (Ark. Ct. App.) (trial court must assess State’s reason for denying confrontation and reliability of substitute evidence in probation/revocation proceedings)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (revocation proceedings afford due process including right to confront adverse witnesses unless good cause shown)
- United States v. Bell, 785 F.2d 640 (8th Cir. 1986) (balancing defendant’s confrontation rights against government reasons for not producing witness in revocation context)
- Ryan v. State, 484 S.W.3d 689 (Ark. Ct. App.) (Confrontation Clause errors at revocation are subject to harmless-error analysis)