87AP-637 and 87AP-638 | Ohio Ct. App. | Mar 24, 1988
Defendant appeals from judgments of the Franklin County Municipal Court revoking her probation.
Defendant, Roberta E. Lacy, pleaded guilty to one count of resisting arrest and to one count of OMVI. Thereafter, on January 8, 1986, defendant was sentenced on the resisting arrest count to ninety days' incarceration and fined $100. On the OMVI charge, defendant was sentenced to one hundred eighty days' incarceration and the court imposed a $300 fine. Of that sentence, three days were suspended upon completion of an alcohol rehabilitation program and the remainder of the days were suspended conditioned upon probation for three years.
Based upon a statement of violations prepared by a probation officer of the Franklin County Municipal Court, defendant was ordered to appear before the court on May 27, 1987 for a preliminary probation revocation hearing. At the hearing, testimony was put on regarding four separate urine samples collected from defendant over a period of approximately one month. Apparently, the person who observed the collection of the samples was no longer employed by the collecting corporation. As such, the testimony was elicited from a vice president of the corporation who stated that, although he had never met defendant or observed the collection of the urine samples, each urine sample was processed pursuant to the corporation's normal business procedures. He also testified that the samples were marked, labeled and stored in a highly secured area to which twelve persons *162 had access. Pursuant to the normal procedure, the four urine samples were sent to Roche Laboratories ("Roche") for analysis. A report of the analysis was transmitted to the corporation and kept in the ordinary course of business along with similar records. All four reports indicated that defendant tested positive for marijuana.
The state also called defendant's probation officer regarding the terms of defendant's probation. The probation officer testified that he did not write out the statement of violations but, rather, another officer did who took the appointment with defendant on that day.
Based upon the testimony elicited at the preliminary probation revocation hearing, the court found probable cause and a final revocation hearing was scheduled for June 4, 1987. Over defendant's objections, the testimony taken at the May 27, 1987 probable cause hearing was admitted without further evidence. The trial court then revoked defendant's probation.
Defendant on appeal makes a single assignment of error:
"The trial court erred in revoking appellant's probation where the probation revocation hearing conducted violated appellant's right to due process of law as guaranteed by the
The United States Supreme Court has established both a bipartite procedure and certain minimum due process requirements for probation revocation hearings. Gagnon v. Scarpelli (1973),
It is for this latter hearing that the court set forth six minimum due process requirements guaranteed by the
"* * * (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses * * *; (e) a `neutral and detached' hearing body * * *; and, (f) a written statement by the factfinders as to the evidence relied upon and reasons for revoking [probation or] parole. * * *" Gagnon,supra, at 786 (quoting Morrissey v. Brewer [1972],
Here, defendant contends that the procedure below failed to comply with the fourth and sixth requirements of Gagnon, supra, and that the state failed to meet its burden of proof to support a revocation order. Specifically, defendant maintains that the trial court compromised her due process right to confront adverse witnesses because the state's witnesses testified solely on the basis of hearsay. In defendant's view, this error was further compounded when the state failed to adduce any additional evidence at the second hearing, but relied instead on the evidence put on at the probable cause hearing.
Contrary to the state's position on appeal, defendant has posited for this court two distinct issues. As the state correctly notes, one issue relates to the admissibility of the testimony regarding *163 the result of defendant's urinalysis. The second issue, however, concerns the testimony of defendant's probation officer, which officer did not write out the statement of violations giving rise to the instant proceeding.
"Where at a probation revocation hearing the trial court permits a probation officer who did not prepare the entries in the probation department record to testify as to the contents of that record and the probation officer who prepared the entries does not appear, there is a denial of the probationer's right to confront the witnesses against him, and, where the record does not show that the probation officer who prepared the entries was unavailable or that a specific finding was made of good cause for not allowing confrontation, there is a denial of the minimum requirements of due process of law required for probation revocation proceedings. (Morrissey v. Brewer,
Thus, due process required the direct testimony of the probation officer who took the appointment with defendant on the day the statement of violations was recorded in defendant's probation record.
Moreover, this court has previously condemned summary procedures like the one held in this case as violative of a probationer's procedural due process right to a final revocation hearing in which to confront adverse witnesses. State v.Zeiszler (1984),
Defendant also claims error with respect to the testimony and evidence regarding the urinalysis results. Specifically, defendant maintains that since both the testimony of the state's witness and the laboratory report were hearsay, such evidence was inadmissible as violative of her right to confront and cross-examine adverse witnesses.
Initially, we note that probation revocation proceedings are specifically excluded from coverage under the Ohio Rules of Evidence. Evid. R. 101(C)(3). Such exclusion is also consistent with prior Ohio law. State v. Theisen (1957),
In this respect, the
Although the Supreme Court has not set forth specific requirements for a showing of good cause, several federal courts have addressed the issue in the context of testimony and documentary evidence relative to laboratory reports or tests. See, e.g., United States v. Bell (C.A.8, 1986),
"First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. For example, the government might contend that live testimony would pose a danger of physical harm to a government informant * * * [citations omitted], or, as suggested by Gagnon, that procuring live witnesses would be difficult or expensive.
"A second factor that must be considered, and one that has been focused upon by a number of courts, is the reliability of the evidence which the government offers in place of live testimony. * * * [Citations omitted.] Thus, where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on the other hand, the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation." Bell, supra, at 643.
Demonstrative reliability is necessarily not susceptible to precise definition. Rather, reliability is demonstrated by the facts of the particular case and by the inherent trustworthiness of particular evidence. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Ohio v. Roberts (1980),
Here, the state presented the testimony of the vice president of a corporation which supervised the donation of defendant's urine samples. That witness testified over defendant's objections that he did not know defendant; and that he did not personally observe defendant donate the samples. *165 However, he did testify that the routine practice of the corporation was for an employee to observe the donation of the sample; that the employee who observed defendant's donations was no longer employed by the corporation; that samples are usually marked, preserved and sent to Roche Laboratories for analysis; that Roche returns to the corporation reports of the urinalysis; and, that the reports regarding defendant indicated that defendant's urine had tested positive for marijuana on four separate occasions.
Clearly, the record demonstrates that the witness was competent to testify as to the routine procedure used by his corporation in collecting, marking and dispatching urine samples for analysis. He was the custodian of records kept by the corporation and the employee who had observed the donations was not readily available. Inferentially, then, this testimony could establish the reliability of the procedure used to collect, mark and dispatch defendant's samples. Thus, his testimony regarding these matters was admissible.
On the other hand, the testimony regarding the results of defendant's urinalysis was inadmissible under the facts of this record. There is no indication in the record that the state's witness had any knowledge of or responsibility for the records maintained by Roche. As such, his testimony relative to those records was not grounded on any hearsay exception. See Evid. R. 803(6). For this same reason, the records, likewise, were not admissible as an exception to the rule against hearsay. Nor is there any evidence before this court which would otherwise suggest the inherent trustworthiness of the urinalysis results. The state did not adduce any evidence tending to establish that the Roche reports are the regular reports of a company which conducts such tests or that Roche expects its clients to act on the basis of its reports.1 Moreover, the record does not reflect why a Roche representative was not available to testify as to the procedures used by Roche or as to the reports of defendant's urinalysis.2 As such, the record is totally devoid of evidence which would permit a finding of good cause sufficient to overcome defendant's conditional right to confront and cross-examine adverse witnesses regarding the urinalysis reports.
Based on the foregoing, defendant's sole assignment of error is found meritorious. The judgments of the municipal court are reversed and the causes are remanded to that court for further proceedings consistent with this opinion.
Judgments reversed and causes remanded.
REILLY and BOWMAN, JJ., concur.