Mason v. State

present, I would clearly were If the issue instance, prove an did State, in this crime of to this majori- an addition hold that I concur in battery. attempted reasonable is a concept civil assault there reached of tort opinion and the result ty statute. conclusion. of logical application on that premised as it is insofar ability present element of the claimed Since of wheth- question open the I would leave appar- of replaced by the element has been attempted bat- an prove must er the State in the definition ability, not believe ent I do ag- of a conviction secure tery in order to followed, W.9.1977, 6-4-501, ought to be § 6-4-506, W.S. § assault under gravated applied, I can be agreeing that and while with agreement in am not 1977. I attempt- that an in this case would not hold incorporates 6-4-506 proposition § the crime under an element of battery is 6-4- ed found in § assault simple of definition 6-4-506, wW.8.1977. § merit in I find wisdom 501, W.S.1977. in as summarized other courts views of perception of rely upon the we are to If Law, p. Scott, § Criminal LaFave and ability, apparent respect the victim 1972): Publishing Company, (West concept rely of that logical parallel it is a have extend- jurisdictions majority of "A victim insofar as perception upon of assault scope the crime ed the is concerned. perpetrator intent of the (not an alterna- include, addition in in the court held is what I believe that type of to) attempted-battery tive State, would be an supra. v. Brown the civil as- assault, concept of tort resolving this appropriate basis one, with when sault, which is committed judgment eliminate my would apprehension cause a reasonable intent involving the cases debate in such spective (though not to bodily harm of immediate deadly victim of from the distance harm), some act does such inflict evaluating whether weapon dangerous *" * * apprehension. such causes battery had occurred. attempted an omitted.) (Footnote leg- with what is consistent This rule Wyoming intended of the State

islature W.8.1977, by 6-4-506, it amended § when firearm including unloaded an weapon. Ch. deadly dangerous or aas certainly I Wyoming 1975. S.L. § visualizing attempted an difficulty have firearm, unless battery with an unloaded MASON, Appellant Tracy Michael event in that it must insist we are to (Defendant), I do not a club. presented as or be by used required by the such a conclusion see that v. justification for statute, can I find nor (Plaintiff). Appellee Wyoming, STATE other applicable to the crime element of ap- weapons but deadly dangerous and No. firearm. an unloaded plicable to Wyoming. Court of Supreme I the view same as view is must This of intent concerning the element expressed July23,1981. my concur battery set forth to cause State, Wyo., 568 ring opinion in Fuller (1977). In Brown 900, 904 P.2d cited (1979), the court Wyo., 590 P.2d proposition opinion for the concurring ability been had element that the by this crime defined from the

eliminated ability

statute, apparent the element therefor. been substituted

had Counsel, Schilling, Appellate

Michael H. Program, Lara- Wyoming Defender Public mie, appellant. for Gen., A. Troughton, Atty. D. Gerald John Stack, Gen., Atty. and Allen C. Deputy Gen., Johnson, Atty. Cheyenne, Asst. Senior appellee. ROSE, J., RAPPER, C. THOMAS Before O'BRIEN, ROONEY, JJ., District Judge.

ROSE, Chief Justice. is whether

The issue in this case probation-revocation in a defendant appeal, Cooper of Officer lies to confront and cross-examine has the Here, appellant's complaint. against cru- at the heart of him. the witnesses probationer was cial evidence to the contents Cooper Officer testified testimony. the form of presented in him from Bruce Be- statement taken attempt to sub- made no either The State xell, allegedly a witness who saw someone to make valid poena the witnesses or later place a stereo under some bushes and exeuse for their absence. press box at take the stereo to the County High Natrona School stadium. hearing, the district the revocation At Cooper information ac- also testified Tracy Michael appellant court found that quired during a discussion with the arrest- Mason violated the terms of investigation. officer involved entering Center Citizens Senior Both of these witnesses had testified at the removing sys- Casper illegally a stereo preliminary hearing charges of bur- finding would constitute a tem. While this Center, glary of the but Senior Citizens appellant's proper revocation of basis for proba- neither witness was at the probation, we will reverse and remand tion-revocation neither State case the district court for further consid- explanation offered an for the failure to appellant grounds on the that was eration witnesses, produce the nor offered a tran- right his and cross-exam- denied confront script testimony prelimi- of the from the him, against right ine the witnesses as such Rather, nary hearing. Cooper's Officer tes- guaranteed by the Fourteenth Amend- timony exclusively upon was based his rec- Constitution. ment to the United States ollection of his conversations with the wit- ness, Bexell, officer, arresting Mr. and the FACTS together pro- with his of the recollection 28, 1980, July Tracy Michael Mason On ceedings preliminary hearing. at the a term of not less than was sentenced to description, by Mr. Bexell's as related Of- years years three and not more than four Cooper, only burglar ficer stated the Wyoming Penitentiary. the This sen- State tall, approximately was feet six 18 to 20 separate crimi- tence was the result of two old, hair, years long had and work dark part plea agree- prosecutions. nal As clothes. The officer also testified that Mr. ment, placed proba- was on the defendant Bexell had identified Mr. Mason from years. tion for two The conditions of photographic lineup, and had never identi- (1) probation provided defendant's he person. him in fied subject supervision would be to the of the Cooper Officer then recalled a conversa- Wyoming Department of Probation State Hazen, arresting tion with Officer offi- Parole; local, (2) obey he would all cer, reportedly who saw the defendant clos- during probation state and federal laws press one of the windows at the box at period. either of these condi- Violation of County High the Natrona stadium School grounds tions would be for revocation night burglary. on the of the The stolen probation. had been on The defendant press stereo was later recovered from the for little more than one week when bation box. Attorney peti- County the Natrona filed a alleging that a com- tion for attempted Defense counsel raise plaint July and warrant had been issued on witness, by issue misidentification 25, 1980, charging Bexell, the defendant with the point Mr. and to out conflicts in the burglary of the Senior Citizens Center on descriptions given by Mr. Bexell and the 22, July probation-revocation 1980. At the arresting He was unable to do so officer. 1980, August held State Cooper because could not recall the exact testimony called two witnesses: the defendant's of the witnesses. Defendant's probation police Casper repeated objections officer and a offi- counsel made the tes- cer, Cooper. probation timony Cooper grounds James While Officer on the evidence, important hearsay testimony officer's is not to this that was unreliable (1) part hearing to determine if there are being denied his was the defendant against him. proving witnesses verified facts a violation of right confront (2) agreement; light release whether in Cooper's hearsay of Officer On basis probation proven of a violation the should revoked the court testimony, the district preceded This must be be revoked. and reinstated defendant's by a written notice of the claimed viola ap- original The defendant sentence. protections tions. that attach to this Other grounds pealed that order guarantee include the of disclosure solely made on the basis determination defendant, of the evidence denying him thus right present docu to call witnesses and right process and the right to due mentary right evidence and the confront witnesses cross-examine confront and cross-examine adverse witnesses. Mor against him. rissey, supra, 408 U.S. S.Ct. THE LAW governing probation revoca The law provided The method law under controlled the Fourteenth Amend tion is 7-13-409, W.9.1977, county allows for the § law, process under the ment to due (as attorney Wyo., in Knobel v. case by Wyoming statute and well law. (1978)) offi- P.2d administrative Gagnon Scarpelii, 411 U.S. (as State, Wyo., 600 P.2d cer Weisser the Unit 36 L.Ed.2d (1979)) petition to file a dis- Supreme Court held that ed States court, requesting probation trict revocation. requires Amendment Fourteenth instance, court In latter the district the hearing given a before his probationer be hearing-as must hold a it did here-to Gagnon adopt probation may revoked. be determine whether the conditions of the reasoning Morris ed the of an earlier probation agreement had been violated and 471, 2593, Brewer, 92 sey v. 408 U.S. S.Ct. probation whether should be revoked. We 484 which extended the 33 L.Ed.2d upheld validity procedure the this hearing parolees. prerevocation of a State, supra, v. as well as in Knobel Weisser settings, parole probation In both the and State, supra. v. probation held that the Court prosecutions revocation were not criminal appellee The contends Officer and, therefore, give rise to the full did not al Cooper's hearsay should be panoply rights under the available Sixth W.R.Cr.P., 38(f), specifi since Rule lowed Nevertheless, parolee Amendment. suspends application of the hear cally the proceedings may re probation-revocation parole-revocation say probation- rules at or triggering liberty, thereby sult in a loss of argument point. misses the hearings. This protections of the due- the fundamental allowing hearsay in these purpose for The Amend process clause of the Fourteenth determining hearings the court in is to aid Gagnon, supra, Morrissey, su ment. probation parole should be re whether or liberty by the pra. The loss of suffered the determination has been voked after parolee not the loss of probationer or is agreement been the made liberty every to which citizen is "absolute of whether violated.1 The determination entitled, liberty only of the conditional but agree his release the defendant violated spe properly dependent on observation on verified facts. Mor ment must be based * * * supra, Morrissey, cial restrictions." Brewer, supra, at rissey v. U.S. 480, 92 at 2600. 408 U.S. at S.Ct. categor hearsay is not at 2601. While S.Ct. hearings, the ically revocation process requires that the de barred from Due improper. given hearsay admitted in this case cases be a two- fendant in revocation termining revoke whether or not probation turns its 1. When the court or board probation finding light prior of the of a stage revocation attention to the second violation. hearing, useful in de evidence will be produce the witnesses at the revo unable to for the defendant impossible is testimony might hearing, have been accuracy truth of the State's cation to test the hearing hearing preliminary not at the from the on they if introduced witnesses course, It is clear from testi testimony. burglary, provided, of this give their counsel was that defense mony record before us been tested cross-examination had attempts demonstrate in his by questioning equivalent frustrated that was the theory to who committed Roberts, an alternative cross-examination. Ohio v. Center burglary Citizens 65 L.Ed.2d at Senior S.Ct. U.S. effectively cross- unable to he was because (1980). whether The record does not show witnesses. Officer the State's examine ques preliminary included such memory made incomplete Cooper's event, testimony from tioning. Both the defend unassailable. State's case preliminary was not offered have a stake system the social ant and say, hearing. Needless the revocation in a making the factual determination sure Cooper's recollections of the testi Officer one hearing is not arbitrary hearing are not an mony preliminary at the pass the Morris is based on facts but transcript acceptable substitute for cross-examination, truth-seeking sey, test.of testimony. Brewer, supra, 408 Morrissey U.S. In this case at 2601. PLAIN ERROR form of hear presented was in the evidence to test say was unable reject ap which the defense Appellee asks us to clear violation of verify. This was a due-process peal grounds process. Anaya appellant's right to due objected properly to dur violation was (1980). State, Nev., 606 P.2d 156 appellee As reads the rec good-faith attempt must make State ord, objected to the counsel defense probation- at a produce the witnesses grounds that it was evidence or else show parole-revocation the confronta hearsay and that violated they appear. If for some why cause cannot Amendment. Fol tion clause of Sixth unavailable, witness valid reason reasoning, objections lowing this were may be whether the information overruled, point, properly on the first since through hearsay will be deter introduced W.R.Cr.P., 88(f), hearsay makes the Rule balancing This by test. mined the use of a during probaticn-revoca inapplicable rules interest in weigh the defendant's test will and, point, be hearings tion on the second cross-examining the wit confronting and applies only Amendment to cause the Sixth practical with the diffi nesses him prosecutions probation-revoca criminal and Anaya v. producing the witness. culties of hearings have been held not to be tion State, supra. prosecutions. Mempa Rhay, v. criminal 128, 254, (1967). 19 L.Ed.2d U.S. the evidence is to be intro If the substantive violation duced to establish reasoning per Appellee's does not parole, the probation or of a condition of First, reasons. defense suade us for two questioning in the ac defendant's interest objected repeatedly to Officer Coo counsel strong is far tual source of the information grounds that it de per's on the relates to the er if the evidence than right to confront and nied the defendant's pro general while on defendant's character witnesses. These are cross-examine form of the hear bation. Id. at 158. The rights were af- precisely that we find important striking in say testimony is also hearsay by fected the introduction of every due-process While not balance. argu- did not ask for testimony. The court violates the due- hearsay evidence use of amendment question of which clause, ment probation board process the court or provided to the United States Constitution weigh the evidence to be carefully must right to confront the basis for the claimed strong reliability. If indicia sure bears objection Defense counsel's had been the witness. present case the State in ROONEY, Justice, specially concurring, alert the court was sufficient legal RAPER, Justice, proper joins. to the before it and with whom problem remedy. by I in the result reached concur majority opinion, entirely in hold that but I am

Even if we were to expressed insufficient objections improper were accord with the rationale therein. court, we would issue before to raise the whether presented The issue here is violation of the question reach appellant process was afforded a due rights under due-process defendant's hearing upon probation, revocation of error or de "Plain plain-error doctrine. with whether or in connection rights may affecting substantial be fects confronta- not he was afforded sufficient brought although they were not noticed tion with witnesses. 7.05, of the court." Rule W.R. the attention opinion majority makes reference to AP.; 49, W.R.Cr.P. Rule (1) "two-part if to determine opinion in This court's Daellen proving there verified facts a violation State, Wyo., 562 P.2d 679 bach (2) agreement; whether release three-part test determine when sets out light proven in violation the apply. plain-error doctrine should For should be revoked." It then indicates that error, plain there must qualify as error wit evidence from non-confronted happened first be a clear record what during nesses is admissible the second Second, there must be a clear 83(f), part. suggests It that Rule W.R. unequivocable rule of law shown pertains only part. Cr.P.1 to the second Third, the facts of the case must exist. Brewer, Morrissey v. refers to U.S. obviously transgress clearly and the rule of (1972); L.Ed.2d 484 92 S.Ct. Hampton Wyo., law. See also Searpelli, Gagnon v. 411 U.S. 93 S.Ct. (1977). three-part this test is P.2d 504 Once (1973) supportive as 36 L.Ed.2d 656 satisfied, sub it still must be shown thereof. the accused has been ad stantial two-part I do not believe that either the apply versely affected. These criteria even majority opinion referred to alleged, when a constitutional violation is as 388(f) pertinent I or Rule is to this case. case. believe that the confrontation of witnesses criteria, the three We think each of requirement Morrissey enunciated in is nar- right, well as the violation of a substantial majority than rower established have been met in this case. The rule of law opinion. years ago firmly established several Finally, very question it a close I find Morrissey Gagnon. The violation of non-hearsay or not the evidence to whether clearly this rule is obvious and shown support case was sufficient proceedings. Finally, the record of by the court in its discretion exercised trial due-process right there is no doubt that finding of violation of the con- a confront and cross-examine witnesses is sufficient, I find it was not not ditions. right that has been denied in substantial procedural of the loose context because reasons, plain-error this case. For these hopes developed in which the matter but in allows us to consider this constitu- doctrine finding help the same that such will avoid deprivation even if not raised in the tional and, thus, appeal in potentials for error for below. court proceedings. revocation future The order the district court is reversed quarrel I have no with the fact that Mor- remanded for further and case is thought process ceedings opinion. rissey referred to the consistent with this proposed. 33(f), provides: such action is The defend- which 1. Rule W.R.Cr.P. pending may such be admitted to bail ant probation except "The court shall not revoke hearing." shall after at which the defendant grounds be and apprised ground to or reasonable cause probable ascertained is first violation whereby the com- parolee has the arrested believe to what to as is made decision then the and a viola- constitute would acts that mitted step "is not it, this second and that about do parole conditions. [Citation.]" tion and dis- predictive but also factual purely 2602. at S.Ct. at 2599-2600. cretionary." 92 S.Ct. * "* * may parolee hearing the At the stages in However, important the "two behalf; he own speak in his appear and * * * revocation" process of typical documents, letters, individu bring may pri- Morrissey was language in information give relevant who can als "(a) therein as headed marily addressed request On hearing officer. Preliminary Hear- and Parolee Arrest of adverse given who has person parolee, Hearing." Revocation "(b) The ing," and is revocation parole on which information was with the instance in each The concern for available made is to be based to be the determina- in requirements process due However, if presence. in his questioning parole agreement not the tion of whether that an determines officer violated. had been subjected to risk or be would informant disclosed, concurring opinion in he identity were my specially if his In harm to confrontation subjected Wyo., 600 P.2d be need not Weisser (Emphasis add cross-examination." and that: (1979), I noted * "* * ed.) at cases Morrissey and Gagnon probation sta- and parole stage, the revo recognized the addressing the second rights itself,3 following under mini property' 'liberty and as tus cation depri- without constitution, process, due they requirements held and mum parole structure inflexible accomplished creating "an be could thereof vation in forth were set procedures," revocation Morris- In the process. virtue of due 2604 of 92 S.Ct.: Morrissey page page 2600 of noted the Court sey case * * "* the claimed (a) notice of (and in written parole 92 S.Ct. (b) to the disclosure parole; violations of probation). Gagnon him; (c) op- parolee of evidence prosecution part of a criminal "'is not person and heard portunity to be rights due panoply of the full and thus documentary evi- present witnesses does proceeding in such a defendant dence; (d) to confront * * *'" revocations. apply (unless adverse witnesses cross-examine good finds hearing officer it is deter recognizing After "[oJnce confrontation); allowing cause for question applies, the process due mined that hearing body (e) detached' a 'neutral and that "due is process due" what remains board, mem- parole a traditional such as proce such calls for process is flexible judicial officers need not be of which bers particular situation as protections dural (f) a written statement lawyers; Morrissey addressed demands," court re- the evidence by the factfinders hearing by a preliminary necessity for revoking parole. reasons for on and lied place of viola near the person thought disinterested no there is emphasize We as convenient.2 promptly arrest tion or revoca- state of equate this second to be: was described proceeding prosecution criminal Such to a tion * * "* proc- inquiry; It is a narrow 'preliminary sense. of a nature enough to consider be flexible ess should whether there hearing' to determine arrest," parolee probationer or or if the jus- a be before can 2. The preliminary desig- judge, county crime. peace, or other of another been convicted tice of the already Daggett, state. 78, 97 S.Ct. in this or another 429 U.S. nated official Moody Mack v. 50 L.Ed.2d 236 n. Cir.1977); (10th on 251 McCune, if the 551 F.2d is not required Cor A3. preliminary promptly "as F.2d is held Parole, of itself Board v. United States ado "reasonably 1977). (10th after arrest" convenient Cir. * * * alleged or place violation of the near affidavits, sufficiency letters, "The of the including evidence to sus- evidence revoking probation would not be admissi- tain an order is a material other (Em- trial." within the adversary criminal matter sound discretion of the ble in an added.) trial court and its action will be phasis reversed only upon showing a clear of abuse of right of confrontation Obviously, the discretion. The court cannot act arbitrar- hearing is in a revocation eross-examination however, ily, according to whim or proceed- is in a criminal positive as it not as Am.Jur.2d, caprice." Criminal Law hearsay evidence of ing. The admission (1965). § witnesses does not of without confrontation in revocation error ipso facto amount to The question sufficiency as to of the evi- proceedings. necessary support finding dence parole violation conditions 38(f), W.R.Cr.P.4 as do I read Rule Nor aggravated alleged when the condition hearsay evi do with having anything to prohibits have been that which violated is right to confront witnesses. dence or the In such in- additional unlawful behavior. presence of the defend requires the simply stances, analysis by the is influenced con- hearing and the neces the revocation ant at cept proven guilty." of "innocence until In- ground alleged him of the sity of notice to deed, Wyoming requires Parole Board for revocation. It does not con as a basis parole conviction it revokes on this before aspects other of the cern usually required basis. is not in con- Such us, testimony in the before In the case probation. nection with revocation of hearsay was before the court. nature of holding proceed could "to the court nothing in the record to Not was there preliminary final revocation hear- both evidence, good allowing such show cause ings" charges criminal out of before trial of probable avail- the record indicated but alleged probation viola- which arose the original sources of the evi- ability of the tions, one federal district court referred But, was not a criminal dence. proof required standard of as follows: ceeding. properly court could disre- hearing, the usual rules of "In such final proba- and revoke the gard such evidence [citation], applied, evidence need not be non-hearsay evidence tion on the basis of required it the evidence is not it. In this the non-hear- placed before beyond a reasonable doubt have shown following: A say evidence consisted of that Mr. Mills violated the conditions Casper burglary of the Citizens Cen- Senior probation, If the evidence [citation]. reported police. of the ter was Some judge the con- presiding satisfies the burglary in the were recovered items taken probationer has not meas- duct of the high police press at the by the box ured-up and conditions of his to the terms Among recovered stadium. school discretion, will probation, in its Court tape tape was a recorder with items * * *" probation. revoke [Citation.] by a witness as which a voice was identified Mills, F.Supp. United States v. Appellant later ar- appellant. that of (E.D.Tenn.1977). during nighttime he was rais- rested press Ap- ing a window to enter the box. alleged have been When the condition entering pellant contended that he was prohibits that which violated is other than bag sleeping press box to recover behavior, proof unlawful additional using who was he loaned to a friend usually direct and less violation is more there. Refusing reports make or con- involved. officer, refusing tacts with the would be insufficient This evidence leaving employment, the state with- leaving inasmuch as it a criminal conviction sustain permission parole officer and out burgla- with the did not connect defendant involve evidence transgressions similar knowledge it. even ry itself or by the safe- which is not cireumscribed However, proof proba- in a the standard accusations. guards to criminal is different. attributed parole revocation case tion or 4. See footnote gauging appellant's actions properly place all of the and that

The failure to therefrom. which should result pertinent information before the court exempli appellant's status consideration of reason, agree For this I the case proce I in the the looseness which find fies should be reversed and remanded an The court conditioned dure this case. consistent, insofar additional as probation on obedience of all appellant's presently possible, specially with this con- federal, condition curring local and state laws-the opinion. It also con

alleged to have been violated. probation on obedience of the "De

ditioned * * * and Parole's partment of Probation departmental Regulations." The

Rules and

operation no direct reference to rules have probationer's conduct. There are no rules regulations in the record which the PAUL, (Plaintiff), Appellant Norina D. agreed probationer to foll ow.5 PAUL, Appellee Theodore R. the likelihood of viola- The record reflects (Defendant). probation re- by appellant tion of usual CENTRAL WYOMING LAW ASSOCI quirements than violation of laws. other ATES, P.C., Wyoming professional reflect, however, understanding does not (Plaintiff), corporation, Appellant He was not agreement or relative thereto. charged with these notified that he was and evidence thereof was

other violations WYMARD, Attorneys WYMARD & at not received. Law, Pennsylvania partnership, Paul, Appellees (Defendants). D. Norina This, proffer coupled with the failure to Nos. 5473. give non-hearsay available witnesses able to apparently testimony which would definite- Supreme Wyoming. Court of ly by appellant's establish credible evidence July 1981. burglary involvement characterizes procedure loosely prepared proc- essed. The have the advan- court did not

tage of all of that which it should have had by Wyo- controlled substances defined should conditions of specific through law). ming record, be made of either matter sentencing, obligations enumeration the time of "4. I shall not incur debts or by any use of the information thereon a form with or execute contracts without any permission acknowledged by probationer. my supervising addition officer. Agree- Parole conditions, to listed I shall special divorce, "5. file for with- marry, change change used the Parole by ment and Parole Grant form school, draw from residence, general specifies following Board condi- automobile, employment, purchase pur- tions: chase real item any property, purchase exceeding per- $200.00 the cost of without by granted "If to me the Board of supervising mission officer. Wyoming, my Parole of the State I hereby I "6. shall not or use a firearm. possess agree following terms and conditions Wyoming "7. I shall not leave the state of thereof: my permission supervising without officer. "1. I shall make written monthly reports I "8. shall make reasonable effort supervising every the time officer my promptly comply my with the advice and directions of designated him and the form provid- upon business, Parole Officer relative social my ed, and I shall furnish the full information and recreational when activities, same on said form. requested given purpose avoiding to me for the I re- "2. shall make Additionally, personal conflicts, which, activities disputes, contacts to and ports my supervis- officer as directed him. turn, are to result in violation of one or likely agree- "3. I shall laws or ordi- more of the other conditions of this violate possession (including nances the use or ment."

Case Details

Case Name: Mason v. State

Court Name: Wyoming Supreme Court

Date Published: Jul 23, 1981

Citation: 631 P.2d 1051

Docket Number: 5401

Court Abbreviation: Wyo.