Hampton v. State

County, Tulsa 1994 OK 894 P.2d ers of Summary judgment proper 1051.

ly of the Board under the entered favor

GTCA. Clerk, summary judgment

120 As to proper capaci because Clerk her official

ty proper party. against is not a Suit

government officer in or official ca her actually against entity

pacity is a suit represents attempt

that the officer and is an impose liability upon governmental

entity. Pellegrino v. rel. State ex Cameron

University, 2008 OK 68 P.3d 587. political

The state or subdivision lability sought

which to be established defendant,

shall be named as and in no in employee acting

stance shall an within the

seope employment named as a defen

dant, exception physi- with the of resident 163(C). § Designating clans. 51 0.8. an

employee capacity in his or her official as a type

named defendant for this of claim is Pellegrino

improper under the GTCA. University,

State ex rel. Cameron 2008 OK

¶ 6, light holding 587. In of our case,

in this we need not address other issues petition

raised in the in error.

AFFIRMED.

T21 ALL JUSTICES CONCUR.

2009 OK CR 4 Lynn

Jerry HAMPTON, Appellant Oklahoma, Appellee.

STATE

No. RE-2007-555. Appeals

Court of Criminal of Oklahoma.

Feb. Appeal

An from the District Court of County; Pushmataha Before the Honorable Brock, Gary Judge. Special L. OK, Blakely, Hugo, attorney

Maria for de- fendant at trial Watkins, Joe R. Assistant District Attor- ney, attorney for at trial. State of Oklahoma Baze, Sys- Bill Indigent J. Okla. Defense tem, Norman, OK, attorney appellant on appeal. Edmondson, Attorney

W.A. Drew General Oklahoma, Miller, Jennifer Assistant At- General, OK, torney City, Oklahoma attor- neys appellee appeal. 2, The evidence was insufficient

OPINION show Appellant violated the terms and condi- CHAPEL, Judge. probation. tions of his Pushmataha 11 In the District Court of I. Revocation Evidence CFP-2002-119, Appellant, No. Case County, Hearsay Statement at Issue Jerry Lynn Hampton, plea entered a of nolo { only hearing 4 The witness at State's Unlawful Possession contendere Count Drug agent was a Task Force who had exe- Drug (Methamphetamine) of Controlled parcel cuted a search warrant on a five-acre Count Unlawful Possession Controlled house, of land where there was situated Drug (Methamphetamine); and Count Un- sheds, camper two and two An trailers. Paraphernalia. The Hon- lawful Possession Roger Payne individual named and his com- Jr., Burgess, orable Lowell Associate District mon-law wife lived the house. When the 7, 2008, Judge, Appel- on March sentenced performed, search was the trailer closest to (5) years lant concurrent terms of five yard fifty the house was in the front about imprisonment on Counts 1 and and to one house, away agent feet from the and the (1) year plea on Count 3. Pursuant to a Appellant located inside this trailer. About agreement, Judge Burgess suspended execu- twenty trailer, feet from that same between upon tion of sentences conditioned these house, it and the sat one of the sheds. This required Ap- written rules of that doorway shed had a but with no door at- pellant, among things, possess other not to tached. illegal drugs; places where alco- to visit agent T5 The testified that inside this sold, illegal drugs unlawfully hol or dis- open jar" containing shed was "mother used; any city, pensed, or and not to violate liquid positive that the OSBI found to be state, or federal law. shed, methamphetamine. Outside that same 21, 2007, 12 On March the State filed an doorway facing about five feet from its Application Suspended to Revoke Sentence trailer, "pump up sprayer was a that would Application alleged generator gas on 1 and 2. This be converted into an HTL Counts (Tr. 12.) methamphetamine." off Poured Appellant that had violated the above condi- ground by out onto the this by shed was salt having tions of his committed mixture, and acid about 17 to from 18 feet Attempted the offenses of Manufacture Substance; Dangerous agent Controlled Unlawful the trailer. The testified there matches, was also found "several boxes of Marijuana; Pos- Cultivation and Unlawful they ripped plates where the striker off" Substance, Dangerous session Controlled (Tr. 12.) containing phosphorous. red alleged in all as Pushmataha District Court front of the trailer "lithium batteries were evidentiary Case No. CF-2007-85. The (Tr. 12-18.) apart." that had been taken Application on the to Revoke was agent all indicated that of these items joined preliminary hearing Ap- with the on contained materials that could in the be used pellant's charges. Following new that hear- making methamphetamine. Brock, ing, Gary Special the Honorable L. 16, 2007, Judge, May Appellant found noted, Additionally, agent "In the (8) probation and violated his revoked a three methamphet- was tin foil shed some with year, portion suspension six month residue, appeared amine to be used to smoke order. (Tr. 17.) methamphetamine with." On the house, marijua- potted east side of the some Appellant appeals now the revocation plants growing. na were The search of the following order and raises the claims of er- marijuana pipes, ciga- house revealed some ror: rettes, however, drug paraphernalia; Appellant's 1. The District Court revoked there were no documents or other items showing Appellant sentence based on evi- within the house had dence, inside, thereby depriving Appellant Appellant's of his adult ever been but one girlfriend sons and the were found confrontation. son's decision, making at time the search warrant was T9 In its revocation the house upon the District Court relied the out-of- camper executed. Discovered the sécond by personnel court statement store to con- search, anoth- during trailer the warrant was Appellant purchased clude indeed Appellant's. er adult son of matches, finding it could consider Ap- about which T7 The provisions "because of the allow- Appellant's pellant complains concerned al- (5- ing hearsay hearings." in revocation quantity leged purchase large of a of matches 8.) Tr. therefore 15-07 The District Court from a local convenience store. While con- Appellant concluded that violated his ducting investigation up by led to his having attempted bation to manufacture warrant, dangerous a controlled substance obtaining agent search possessing methamphetamine. The District guy by personnel told store "that however, concluded, further that it Court coming Roger name has been in with of Slick personnel could not consider the store (Tr. 5-6.) Payne Ap- purchasing matches." preliminary statement for of the purposes hearsay. pellant objected to this statement as hearing hearsay. Believing it because was argued that if the trial Appellant further that without the there court were to consider this state- cause, probable was insufficient evidence of ment, deprive Appellant right it of his would Appel- to hold the District Court declined of confrontation. charges. lant for trial on the new being by Upon personnel 18 told store Analysis Appellant's Hearsay IL. matches, purchase the of these the about and Confrontation Claim agent by watched video made the store's revealing Appellant appeals 110 In from revocation surveillance camera to be proceedings, any we review for abuse of dis making purchase the from the individual the evidentiary rulings cretion in the trial court's store. asked on cross-examination When Additionally, preserved appeal.1 that are on many Appellant how boxes of matches properly appeal, when raised on we deter bought, agent the stated he did not know statutory if require mine and constitutional just many, they "big how were in ments have been satisfied.2 boxes," large quantity ... and that he boxes could not tell what in the boxes because was 11 revoking suspended Procedures for "Itlhey wrapped up paper" and the 0.8.8upp.2008, in 22 sentence are established (Tr. 21.) State, "really blurry." § tape requires video was 991b3 That statute the 3. Section 991b been twice amended since has State, 283, ¶12, 1. See Gilbert v. 1988 OK CR 765 23, 2002, 807, (finding August Appellant offenses for which P.2d 809 no abuse of discretion in placed probation. admitting preliminary hearing changes As the made trial court tran by script hearing). to the statute those amendments do not have into evidence at revocation any bearing appeal, on the issues in this raised 991b, we cite to the current of Section version State, 12-20, ¶¶ E.g., Baker v. 1996 OK CR which, in relevant states: part, (in 927 P.2d 581-83 appeal, compliance Court reviewed for with revocation suspend- A. Whenever a sentence has been hearing twenty statute's of a within by person ed the court after conviction of a guilty plea days of defendant's not to the revoca crime, any suspended per- sentence of petition statutory and whether revoked, part, son not be in whole or procedure process require federal satisfied any petition setting cause unless a forth the ments); ¶¶ State, Painter v. 1988 OK CR grounds by for such revocation is filed 6-12, (Court 762 P.2d 992 found defendant attorney district with the clerk of the sentenc- statutory right represented had waived his to be ing competent justifying court and hearing by by failing counsel at his revocation to suspended the revocation of the sentence is counsel); State, secure 1979 OK presented hearing timely to the court at a to be held Cooper 85, ¶16, ("it CR 423 is within the purpose twenty days for that within after jurisdiction of this Court to reverse revocation entry plea guilty peti- of not evidence"). supported by competent orders not tion, unless waived both the state and the by 64, 4,¶ State, Beller v. OK CR P.2d 1979 597 defendant.. ... Cf. 338, (finding requirements "all the of due proceedings accelerating person suspended were met" in D..... whose sen- sentencing). being deferred tence is considered for revocation at the right decisions was "the to those present "competent things, among other revocation of the justifying the confront and cross-examine adverse wit Additionally, (unless the statute hearing specifically ence."4 officer nesses sent provides confrontation)." "being considered defendant allowing for not finds cause at the shall have for revocation 11 counsel, by pres represented 113 This Court now concludes in his or her own competent evidence ent by statutory right "to be confronted confronted the witnesses and to be behalf rights and These against defendant," the defendant."5 granted witnesses adop requirements predate this state's 991b, no probationers under Section is of Code, Evidence the Oklahoma tion of greater scope than that of confrontation part of Section 991b since they have been existing and cross-examination under Mor in 1969.6 was first enacted rissey Scarpelli. finds This conclusion support from this Court's recent decision "[ guided procedures are also Revocation Worthamv.State.1 Supreme cases: leading U.S. two Scarp Gagnon v. Morrissey v. Brewer7 and Wortham, 114 In the Court found mini Morrissey established elli.8 probationer's right that a of confrontation is terminating process standards for mum due granted defendants year, Scarpelh the same as following parole,9 and Con under the Sixth Amendment of the U.S. for terminat adopted those same standards suspended prosecutions, it is stitution in eriminal probation under a ing from individuals minimum due right process One of the due ence.10 instead a that arises from sent Accordingly, probation a considerations.13 by Supreme identified process standards represented ("The hearing right shall have the to be relied 596, ] 779 598 P.2d [Scarpelli counsel, competent by present evidence in heavily Morrissey decision to on the conclude by rights probationer process and to be confronted a are the same or her own behalf his against the defendant. the witnesses parolee.") as those of a O.S.Supp.2008,§ 991b. 22 489, 2604; 11. 408 U.S. at 92 S.Ct. at Morrissey, 991b(A). 0.S.Supp.2008, § 22 4. 786, Scarpelli, U.S. at 93 S.Ct. at 1762. 411 991b(D). 0.$.Supp.2008,§ 5. 22 State, 18, 2008 OK CR 12. Wortham v. 19, 2008). (Okl.Cr. 201 June provided: inception, Section 991b has 6. From its person may suspended sentence of said [The ¶¶ 188 P.3d at 205-06. Wortham, 11-13, 13. any competent cause unless not be revoked for Wortham, when a de the Court concluded that justifying the revocation of said sus- evidence allowed to confront and cross- fendant had been presented pended to the court at a sentence is preliminary hearing a examine witnesses at per- hearing purpose. that to be held for him, charges against filed the tran new criminal being consid- sentence is son whose hearing preliminary script that could from hearing shall have for revocation at said ered lawfully that defen admitted as counsel, pres- right represented to be subsequent probation hear dant at a révocation competent and evidence in his own behalf 'ent ing prove defendant violated in order to against him. to be confronted the witnesses offenses, by committing and new O.8.Supp.1969, § 22 991b. required prove the was not that State preliminary hearing unavailability wit 471, U.S. 92 S.Ct. Brewer, 7. v. Morrissey transcript into 2593, (1972). in order to introduce the nesses 33 L.Ed.2d 484 1915-16, Id., evidence at the revocation. Wort 778, at 206. I dissented to the decision P.3d Gagnon Scarpelli, 93 S.Ct. 8. v. 411 U.S. ham, Supreme noting Court had that the U.S. 1756, (1973) 36 L.Ed.2d 656 . gives Amendment a the Fourteenth held right in revocation cases unless of confrontation 488-89, at 92 S.Ct. at 2604 9. 408 U.S. Morrissey, finding good for specific cause there is (listing requirements of due the minimum judge had refusing right, that the trial revocations). parole cess in finding. on the I further dissented made no such granting had own statute 782, that Oklahoma its basis Scarpelli, at 1760 411 U.S. at 93 S.Ct. 10. right therefore believed I of confrontation. (finding probationer entitled to a revoca that a explore unnecessary majority specified for hearing under the conditions State, 58, ¶8, right confrontation in revocation Morrissey); whether the 1989 OK CR Pickens v. subject er's confrontation is to "re denying show cause for confrontation. test, laxed due standards" that In another the trial court determines whether the evidence reaches a certain permit introduction of evidence as such reliability, level of or if it has a substantial "letters, affidavits, and other material guarantee of trustworthiness. adversary would not be admissible in an trial," 489, Morrissey, criminal 408 U.S. at State, (Ind. Reyes 488, v. 868 N.E.2d at "prohibit 92 S.Ct. and do not use 2007) (citations omitted). appropriate where of the conventional sub Reyes, Supreme 1 17 In the Indiana testimony, including stitutes for live affida found "the substantial trustworthiness test vits, depositions, documentary evi the more determining effective means for Gagnon Scarpelli, dence." 411 U.S. should be admitted at 782 n. 98 S.Ct. 1760 n. hearing," adopted (1978). L.Ed.2d 656 the substantial trustworthiness test its for State, 288, ¶10, Gilbert 1988 OK CR 765 jurisdiction. Id. In rejecting balancing P.2d approach in favor of the trustworthiness test, Supreme the Indiana Court observed: proba 115 It therefore follows that a tioner's of confrontation and cross-ex flexibility need for combined with the absolute, amination is not there are potentially consequences onerous of man- instances in proceedings when dating balancing inquiry every piece court, process, trial consistent with due can every probation evidence in rev- allow evidence of an out-of-court statement ocation weighs strongly Indiana without being present declarant in favor of the substantial Court, however, cross-examination. This has balancing test over a test.... see no [Whe published precisely addressing a decision require expend reason to that the State its judge how a trial proceedings such is to resources to demonstrate that its interest protect probationer's a process right of producing in not outweighs the declarant confrontation when the State has found it probationer's the confronting interest in necessary proffer an out-of-court state every the same time it seeks to admit unique ment. Appel in cireumstances hearsay pro- reliable evidence in a routine issue, lant's case call our attention to that or, bation revocation if the State as directly this Court has not heretofore test, balancing expend fails the its re- problem, addressed this we have looked to (or produce sources to a witness indeed to jurisdictions the decisions of other that have. require expend that witness to his or her so, Upon doing we have found courts time) give testimony routine in that upon procedures divided determining the for probation hearing, routine revocation when when an out-of-court statement is admissible a piece hearsay reliable evidence is in probation a hearing. revocation available as a substitute. Indiana, 116 In arising a recent case in The substantial trustworthiness test also Supreme the Court of that state observed: provides a balancing clearer standard. A adopted Courts have principal ap- two weighs test in which a trial court the proaches evaluating hearsay evidence in against bationer's interest in confrontation probation one, hearings. revocation In good the the producing State's cause for not a trial employs court a balancing test unwieldy witness is too a method for ev- weighs probationer's the eryday interest con- in a proceeding use as common aas fronting witness the hearing. interests The sub- producing the State the witness. In stantial requires trustworthiness test test, balancing required the State is the trial court reliability evaluate the case, however, cases was the same scope as that of confrontation of the state statute Washington, identified in granting U.S. squarely of confrontation is Crawford (2004), 124 S.Ct. 158 LEd.2d 177 Court, before and I shall concede Id., ¶2, under the Sixth holdings Amendment. relevant in Wortham as a matter of stare present (Chapel, In the decisis. dissenting). at 207 J., revocations applicable to tation that determi- Once hearsay evidence. when a generally be satisfied will a matters made, superfluous we find is nation proffered determines trial court weight relative assess the have to court to guarantees of trustworthi bears substantial care to might not every reason the State has sufficient indicia otherwise ness or a witness. produce reliability. that a court Therefore, require rather than good cause finding of explicit an make matter, the out-of- Appellant's is admitted hearsay evidence every time concerning purchase of his court statement hearing, we during test, meeting this as it matches was evidence may instead evaluate court hold per from the by evidence was corroborated trustworthiness. hearsay's substantial who testi of the witness sonal observations trustworthi- of substantial .... If the test hearing. That out-of- fied at the revocation met, finding is hearsay evidence ness from the found verification court statement been implicitly also has good cause viewing of the store's investigating agent's made. discovery subsequent tape, agent's video Hence, Reyes 441-42. Reyes, N.E.2d at missing plates striker with of matchboxes test found, trustworthiness substantial "[The trailer, and the find Appellant's lying outside into its good cause incorporates implicitly manufactur nearby methamphetamine ing of Id. at caleulus." with the need paraphernalia consistent ing matches. Because the reasons, large quantity of for a we hold For these same T18 buy Appellant about proce out-of-court substantial matches, hearsay/confron objected to on ing judges trial upon Oklahoma dure which guarantees substantial grounds, bore can tation deciding when rely in trustworthiness, for the it was not error objection proba to a an over be considered According revoking Ap rely on it right of confrontation.14 District Court to tioner's suspended sentence.15 pellant's process confron that the due ly, we conclude Kelley committed court found requiring on. The district use reason for not additional 14. As an presented test, solely on evidence Reyes noted that these offenses based balancing court (the responded police Appeals to a police who Court of officer Circuit the U.S. Seventh located) gun." "has held The officer dispatch "a man with which Indiana about circuit guarantees arriving he upon of trustworthi- at the scene that once 'substantial testified that brother, shown, vic- Kelley's and the two Kelley, no found there is evidence are ness' hearsay objec- Substantial longer Kelley's cause. a need to show the assault. Over tims of tion, good equivalent a cause of is the the victims had trustworthiness testified to what the officer Reyes, at finding Kelley 868 N.E.2d this context." in with their altercation told him about omitted). (citations Similarly, our brother, began we note 441 that when the brother his required black, Appeals has not them, Court of Kelley produced Tenth Circuit .22- punching challenged hearsay balancing nearby test where The car. the trunk of caliber rifle from reliability." See indicia of injuries sufficient "contained that he observed further testified officer Comm'n, 1019- 26 F.3d Parole Kell v. U.S. loaded, .22- black, victims, found on one (where Cir.1994) (10th parolee "due car, raised 20 and learned the trunk of the caliber rifle in allowed to con- process he was not claim that Kelley, Kelley. 446 registered to that car was [parole] parole revocation officer at front his F.3d at 689-90. denied, be in hearing," held claim should court of responding Kelley's claim that admission to In had lower court correctly because part, hearsay his due violated statements the victims' reports "parole contain suffi- officer's found the confrontation, Cir- the Seventh process reliability appropriate sub- to be cient indicia observed, physical evidence and "The cuit testimony). live stitutes for investigation personal officer's observations (7th Kel- Kelley, 688 that 446 F.3d accusations States v. [victims'] 15. United corroborated and confronted ley punched in the face them Cir.2006), cir- illustration a further provides produced from the he a rifle that them with hearsay in a revoca- evidence where cumstances appellate court therefore of his car." satisfy process trunk to due proceeding was found hearsay "bore substan- found that the evi- due to corroborative concerns confrontation reliability was so that its admission hearsay tial indicia gave sub- in the record dence Although fundamentally at 692. unfair." Id. Kelley, In guarantees of trustworthiness. stantial ideally should concluding court that "the district revoked from defendant, Lamond Kelley, hearsay why the explained battery, on the record have having committed supervised release for reliability was substan- why assault, weap- was reliable and aggravated use of and unlawful 186

$20 Today we also hold that an out- requirement confrontation when that out-of- presumptively satisfy of-court statement will falling long court statement is one under a rights probationer the confrontation of a standing exception to the rules hears when that statement ay.18 is one that would nor mally be admissible under an established ex Although 121

ception against hearsay.16 concluding that to the rules While proceedings, may rely revocation a trial court (as the rules of evidence in Oklahoma well as upon an out-of-court statement bears those rules of evidence found the federal system guarantees substantial many jurisdictions), other contain provisions declaring violating without inapplicable such rules defendant's of con frontation, probation proceedings,17 revocation we courts continue to hold to that au jurisdictions in such thority have found that an indicating out- revocation cannot be based of-court process entirely satisfies due upon hearsay evidence.19 This is enough supply good produc- tial standing exceptions cause for not rule that meet witnesses," 693; ing the [victims] as live Id. at demanding requirements the more for criminal the Seventh Circuit held: prosecutions satisfy should the lesser standard of sought Where admit- respondent accorded the ain revo ted at a revocation "bears substantial proceeding."); cation State v. Nez, 130 Idaho guarantees 1289, 1292, trust-worthiness, then the need (Ct.App.1997) good to show cause vanishes." This circuit (conceding ap "Idaho Rules of Evidence do not essentially finding treats a of "substantial trust- ply probation proceeding," to a but equivalent good worthiness" as the of a cause finding "[aldmission of a statement, pur finding for the admission of in the firmly hearsay exception, suant to a rooted satis revocation context. fies the constitutional of reliabili (citations omitted). Id. at 692 James, ty"); (Me. Statev. 797A.2d 735-36 2002) (noting that "the Maine Rules of Evidence matter, Appellant's the State does not con- apply hearings" do not tend that the out-of-court statement at issue falls finding step analyzing that "[the first exception. under such an reliability proffered [hearsay] evidence is to 1101(d)(3) 17. Rule of the Federal Rules of Evi- determine whether the evidence would be admis apply dence states those rules "do not in ... sible under the rules of evidence" because evi [plroceedings revoking probation." dence evidentiary "admissible under standard corresponding provision Oklahoma's is found at reliable"); presumptively rules is State ex rel. 2103(B)(2). O.S.Supp.2008, § With the ex- Wis.2d Simpson Kansas, the rules of evidence in all ception (Ct.App.2001) N.W.2d (although 535 & n. 5 other states situated in the Tenth Circuit have recognizing that [of "neither Rules Evidence] exclusionary provisions. similar Colo. R. Evid. apply nor the Sixth Amendment at revocation 1101(d)(3); 11-1101(D)(2); N.M. Evid. R. Utah hearings," court found it need not determine 1101(b)(3); 1101(b)(3); Wyo. R. Evid. R. Evid. requirement, "the contours of the cause § (declaring Kan. Stat. Ann. 60-402 cf. that always because we conclude that the test is met "apply the Kansas Rules of Evidence when the evidence offered in lieu of an adverse every proceeding [court] ... in which evidence is testimony witness's live would be admissible un produced" except "may where the rules be re- Evidence"). der the Wisconsin Rules of See also procedural applica- laxed other rule or statute United Palmer, States v. 551, 555 F.Supp.2d situation"). specific Although Wyo- ble to the (E.D.Va.2006) (acknowledging that the rules of ming's Rules of Evidence contain the standard apply evidence do not to revocation proceedings revoking probation, exclusion for a hearings, finding hearsay excep but that "the special provision within that state's Rules of tions contained in those rules serves as a useful Criminal Procedure declare that its Rules of Evi- proxy reliability making for the of evidence" "apply adjudicative phase dence do to the of balancing analysis inapplicable to out-of-court probation hearings." Wyo. revocation R.Crim. falling hearsay statements within an established 39(a)(5)(B). P. exception, conversely finding balancing and proper implic where the "Rules of Evidence E.g., 18. United States v. Williams, 35, 443 F.3d itly question reliability type of a of evidence (2d Cir.2006) (in supervised 45 revocation of by excluding hearsay exceptions"). it from the release, obliged district perform court was not to good-cause analysis denying a confrontation proffered where the ¶¶ out-of-court is statement one 19. State, 285, 1988 OK CR 2-4, Montemayor v. 1000, (reversing that would be admissible under an 766 P.2d 1001 established revocation order only probation rule); where evidence of defendant's United States v. exception hearsay Hall, 980, (9th Cir.2005) ("Al 419 F.3d 987 violation came from information contained in a though the report compiled by Federal Rules of do proba Evidence violation defendant's strictly apply hearings, long- to revocation ... appear testify). tion officer who did not and

187 of fundamental hearings is that revocation of See with the consistent also "competent has not demonstrated present Appellant the State fairness.21 991b that tion suspended partial reliance on District Court's that the of the the revocation justifying evidence 0 particular in his Moreover, keep in that out-of-court we ence."2 sent ultimately in an unfair revocation resulted case overarching concept embodied mind that pro ceeding.22 mandated process due in the argument Similarly, responding an to similarly a revocation conclude that Other states clearly require of Morrissey exclusion entirely did not when based probation will not stand of hearings, 91, parole State, hearsay at revocation evidence 94 hearsay. E.g., v. 964 So.2d Hall on observed, Appeals "To Circuit Court of ("Because, the Fifth hearsay testimo- (Ala.Crim.App.2007) informality proce- concerning of statements read of basis for revocation ny form the sole cannot to circum- evidence as license dure and rules of revoked erred when it probation, trial court confrontation, parolee's right howev- of State, vent the A.2d probation."); v. 897 Collins Hall's er, spirit ignore of completely the letter and is to ("we 159, hearsay (Del.2006) evi- hold that 160 Bd., Morrissey." v. Miss. State Parole Farrish is connecting probationer to a crime dence Cir.1988). 969, (5th The Fifth 978 836 F.2d proba- support a of revocation to insufficient hearsay recognized, "The use of further Circuit 981, (Fla. State, tion"); So.2d 984 v. 958 Miller prevents pa- problem: presents a two-fold ("Although hearsay is Dist.Ct.App.2007) cross-examining confronting and from rolee hearing, a a revocation generally admissible at undermines and unreliable declarant, solely hearsay may not be based of process." fact-finding Id. accuracy evidence."); Spragis, People 5 hearsay v. 628, 814, (N.Y.App.Div. 628 772 N.Y.S.2d A.D.3d 48, 115, Collyar, 476 P.2d 1970 OK CR 21. In re evidence, sure, standing 2004) (''To hearsay 354, ("[We person, that a whose do not hold 358 alone, pro- prove a violation is insufficient to revoked, being is entitled is sentence bation, probation viola- in a but it is admissible scope of constitutional due the full to receive hearing may with other be considered hearing application to re- process on an at the 808, evidence."); Ohly, App.3d 166 Ohio State v. voke; hearing such should we do believe that 675, (2006) ("Hearsay is admis- 683 853 N.E.2d fairness."). considerations of reflect fundamental hearing; probation-revocation howev- sible in a at 790, U.S. at 93 S.Ct. also 411 See Scarpelli, when it is the held that er, only courts have (fundamental fairness-the touchstone 1763 insufficient and vio- violation, it is evidence of (""In light Kelley, F.3d at 693 process"); 446 due process right con- probationer's due to lates the corroboration, independent the officer's him.") witnesses front the hearsay statements of the [victims'] admission fundamental fairness not undermine the did hearsay Historically not been considered has 20. not violate Kelley's and did judicial "competent evidence" in formal right process."). to due Ratliffe, 30 U.S. ceedings. Lessee Scott v. See State, 54, (1831) 81, 86, (finding (5 Pet.) v. 1993 OK We note that in Bourland L.Ed. 55-56 8 testimony'' excluding hearsay recog- general "'the rule 580, 581, P.2d this 14, 14, CR " require- process due incompetent estab- that inherent "the nized 'that fact, is entitled in to which a defendant its nature ments any specific which fact is in lish hearings" was the acceleration matters of being proved who susceptible witnesses prepare and to en- competently his defense knowledge'"); Port- "to In re speak their own from 517, fundamentally hearing." 475, 477, This Estate, fair sure 257 P.2d 208 Okla. er's probationer was enti- that a therefore concluded "incompetent, (1953) objection (holding that the application accelerate discovery on an tled to raises the irrelevant, and immaterial" question discovery has Id. Where State, a deferred sentence. Strong hearsay); 81 Okl.Cr. occurred, discovery materials reveal (1945) (Syllabus) ("Opinions 163 P.2d adequate oppor- given notice there was party to a third a letter addressed of the writer of satisfy tunity necessary rebut evidence, the rule of come within requirements. See process confrontation State, such."); Seigler incompetent as (where Kell, parolee claimed due at 26 F.3d 1048-49 Okl.Cr. had been violated confrontation person cer- (finding testimony a third about hearing, dis- Tenth Circuit parole revocation and wife between husband tain conversations claim, finding, part, by posed "The of such being hearsay "incompetent" and a as would be petitioner was informed of this record shows decline, communication). We howev- privileged right, he chose not to [confrontation] request yet er, "competent phrase evidence" the to construe given the when presence of adverse witnesses the prohibit the admission 991b to as used in Section opportunity."). proceedings con- once in revocation of he never we note matter, None- if are addressed. issues, Appellant's frontation any, noted, did he ask purchasing matches nor theless, the Reyes does denied "This the court in as might have a further that he a continuance so admitted for hearsay evidence be not mean making out- the hearing." opportunity to call the individual willy-nilly in a might present so that he statement or of-court at 440. 868 N.E.2d Reyes, IIL, LUMPKIN, Conclusion Judge: part/dissent concur in in part. 122 In Page, v. Chase this Court set out minimum process procedures parole agree 1 1 I with the results reached the in Favorably revocations Oklahoma.23 quot join Court in this case and in adoption of ing holding in "principles Chase that the substantial gov- to justice fundamental required fairness" admissibility ern the evidence in procedures, those Supreme the U.S. Court in However, revocation cases. I always have Morrissey goal identified the it wished to appellate believed courts should be clear and through reach process guidelines those due consistent in establishing guidelines for adopting:

was "What is needed is an infor judges of the District and this Court's mal hearing structured to assure that finding of a parole violation will be based on analysis appears to questions create more and that the exercise discre than it verified answers. facts tion will be by am accurate knowl informed First, correctly the Court sets out the edge parolee's behavior."2 "probationer's fact that a right of confronta Appellant's 23 At revocation hearing, subject tion is to 'relaxed due stan partly out-of-court statement upon relied dards'", and notes the evolution of the law knowledge accurate Appellant's behavior emanating from the Supreme U.S. Court de while on was verified other Brewer, Morrissey cisions in 471, 408 U.S. evidence before the trial court. Because (1972) 92 S.Ct. 33 L.Ed.2d 484 out-of-court statement guar had substantial Gagnon Scarpelli 411 U.S. trustworthiness, antees of S.Ct. cause (1973), 36 L.Ed.2d 656 which leads to necessary to meet the require confrontation ments of Morrissey, Scarpelli, and Section ability say: our to 991b present, and therefore it was not Accordingly, we conclude that the due error for the District rely on it. cess confrontation applicable reason, For this there compe was sufficient to revocations generally matters will tent evidence revealing Appellant violated his satisfied when a trial court determines that probation and justified 'that the par violation proffered hearsay bears guar- substantial tial revocation. antees of trustworthiness or otherwise has sufficient indicia of reliability.

DECISION May 16, 2007, T24 The final order of the holding That point, clear and to easy District Court of County, Pushmataha revok- understand. (8) ing year, a three portion six month Second, 4 3 the Court then becomes some sentences of JERRY LYNN what cryptic in application HAMPTON in CF-2002-119, Case No. of that clear AFFIRMED. 3.15, by citing Pursuant Rule Rules case of United the Oklahoma Court Appeals, Criminal (7th Kelley, Cir.2006) States v. 446 F.3d 688 (2008), Title App. Ch. MANDATE IS as an example application of the of the rule. ORDERED upon ISSUED filing of this That decision found a defendant guilty decision. solely "based presented by the police responded officer who police to a dis LUMPKIN, part/dissent P.J. concur in patch Id., about 'a man with gun'." at 689. - part. That court reliability discussed the JOHNSON, V.P.J., C. JOHNSON, A. the context of per "the officer's LEWIS, JJ.: concur. sonal observations investigation corrobo contradicting the truth of the matter Page, 23. Chase v. 1969 OK CR 196, ¶¶ 17-19, 456 simply asserted. Other argue than that the curiam). (per P.2d 590, 594-95 hearsay, statement was he did not seek to chal- lenge reliability any its meaningful way, and Morrissey, 408 U.S. at 484 & n. 92 S.Ct. at nothing there is showing the record he was added). (emphasis 2602 & n. 12 given opportunity full and up fair to offer challenge. such a trust- holding that the substantial However, accusations". the victims' rated confrontation satisfying the test is is re worthiness say not corroboration does case proceed- imposed in revocation requirements guarantees satisfy the "substantial quired competent evi- this discussion ings, refers The Court test". of trustworthiness holding. with that dence conflicts opin in the times several "corroboration" not it is re or stating whether ion without signals to sending mixed T7 Rather than required, If it is satisfy test. quired to as to how and when judges practitioners examples are if the say so and we should in revocation is admissible can trial court of how a merely illustrative be clear and to we should proceedings, hearsay evi proffered whether determine affirmatively that should state point. We then we requirements, the test meets dence meeting the substantial hearsay evidence judges do not trial ensure be clear to should probationer's test satisfies trustworthiness with the ar confronted guess when have to in rights a revoca- process confrontation gument. provide exam- proceeding. We should Third, creates conflict then this Court T4 reliability can ways that that show the ples Montemayor v. referring to and confusion established, through it be corrob- whether State, P.2d 1988 OK CR oration, or traditional observation holding: And, the evolution exception. due to in concluding that Although Scarpelli Gagnon v. Morrissey v. Brewer and may rely upon an court a trial proceedings, if process is satisfied that due jurisprudence, substan- that bears out-of-court solely on com- is based to revoke a decision without trustworthiness guarantees tial that satisfies petent confronta- right of violating a defendant's In other test. trustworthiness substantial authority tion, to that to hold we continue words, first time we should do based en- cannot be indicating revocation that will have creating questions than rather hearsay evidence. tirely upon appeals. in later to be decided is that this statement problem with 1 5 The appli entirely on the

Montemayor was based in Supreme Court decisions U.S.

cation of the Scarpel Gagnon v.

Morrissey v. Brewer adoption of the analysis and

li. The Court's completely test trustworthiness

substantial decision the basis eviscerates 2009 OK CR 6 reason, we should be Montemayor. For that NILSEN, Appellant Christopher Erik confusing not overruling Montemayor adopting. v. are the test we application of applica- Fourth, 20 further confuses 1 6 Oklahoma, Appellee. STATE tion of the substantial M-2007-285. No. competent evidence. by its discussion Montemayor, this back to Like the reference Appeals of Oklahoma. of Criminal places a competent evidence discussion 27, 2009. Feb. the test to which on the extent cloud proceedings. trial court applicable of law to the rule I continue to adhere

While holdings footnotes

that statements State, 2006 OK opinion, Jackson

in an see (Lumpkin, V.P.J. 146 P.3d CR State, Results); Cannon

Concur J., (Lumpkin, CROK Results) them and people do read

Concur be consistent with

they at least should Supposedly, opinion.

holding of the

Case Details

Case Name: Hampton v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 23, 2009

Citation: 203 P.3d 179

Docket Number: RE-2007-555

Court Abbreviation: Okla. Crim. App.