State of Oklahoma v. Jerry Lynn Hampon

Antlers, Oklahoma, criminal defense lawyer represented the Defendant in an application to revoke proceeding.

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¶4 The State’s only witness at the hearing was a Drug Task Force agent who had executed a search warrant on a five-acre parcel of land where there was situated a house, two sheds, and two camper trailers. An individual named Roger Payne and his common-law wife lived in the house. When the search was performed, the trailer closest to the house was in the front yard about fifty feet away from the house, and the agent located Appellant inside this trailer. About twenty feet from that same trailer, between it and the house, sat one of the sheds. This shed had a doorway but with no door attached.

¶5 The agent testified that inside this open shed was a "mother jar" containing liquid that the OSBI found to be positive for methamphetamine. Outside that same shed, about five feet from its doorway facing the trailer, was a "pump up sprayer that would be converted into an HTL generator to gas off methamphetamine." (Tr. 12.) Poured out onto the ground by this shed was a salt and acid mixture, about 17 to 18 feet from the trailer. The agent testified that there was also found "several boxes of matches, where they ripped the striker plates off" containing red phosphorous. (Tr. 12.) In front of the trailer were "lithium batteries that had been taken apart." (Tr. 12-13.) The agent indicated that all of these items contained materials that could be used in the making of methamphetamine.

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¶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. 6

¶12 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)."11

¶13 This Court now concludes that the statutory right "to be confronted by the witnesses against the defendant," granted to probationers under Section 991b, is of no greater scope than that right of confrontation and cross-examination existing under Morrissey and Scarpelli. This conclusion finds support from this Court’s recent decision in Wortham v. State.12

¶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).

Gilbert v. State, 1988 OK CR 283, ¶ 10, 765 P.2d 807, 809.

¶15 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. This Court, however, has not published a decision precisely addressing how a trial judge in such proceedings is to protect a probationer’s due process right of confrontation when the State has found it necessary to proffer an out-of-court statement. The unique circumstances in Appellant’s case call our attention to that issue, and as this Court has not heretofore directly addressed this problem, we have looked to the decisions of other jurisdictions that have. Upon doing so, we have found courts are divided upon the procedures for determining when an out-of-court statement is admissible in a probation revocation hearing.

¶16 In a recent case arising in Indiana, the Supreme Court of that state observed:

Courts have adopted two principal approaches to evaluating hearsay evidence in probation revocation hearings. In one, the trial court employs a balancing test that weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness. In the balancing test, the State is required to show good cause for denying confrontation. In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness.

Reyes v. State, 868 N.E.2d 438, 441 (Ind. 2007) (citations omitted).

¶17 In Reyes, the Indiana Supreme Court found "the substantial trustworthiness test the more effective means for determining the hearsay evidence that should be admitted at a probation revocation hearing," and adopted the substantial trustworthiness test for its jurisdiction. Id. In rejecting the balancing test approach in favor of the trustworthiness test, the Indiana Supreme Court observed:

[T]he need for flexibility combined with the potentially onerous consequences of mandating a balancing inquiry for every piece of hearsay evidence in every probation revocation hearing in Indiana weighs strongly in favor of the substantial trustworthiness test over a balancing test. . . . [W]e see no reason to require that the State expend its resources to demonstrate that its interest in not producing the declarant outweighs the probationer’s interest in confronting the same every time it seeks to admit reliable hearsay evidence in a routine probation revocation hearing or, if the State fails the balancing test, expend its resources to produce a witness (or indeed to require that witness to expend his or her time) to give routine testimony in that routine probation revocation hearing, when a reliable piece of hearsay evidence is available as a substitute.

The substantial trustworthiness test also provides a clearer standard. A balancing test in which a trial court weighs the probationer’s interest in confrontation against the State’s good cause for not producing a witness is too unwieldy a method for everyday use in a proceeding as common as a probation revocation hearing. The substantial trustworthiness test requires that the trial court evaluate the reliability of the hearsay evidence. Once that determination is made, we find it superfluous for a court to have to assess the relative weight of every reason the State might not care to produce a witness.

Therefore, rather than require that a court make an explicit finding of good cause every time hearsay evidence is admitted during a probation revocation hearing, we hold that the court may instead evaluate the hearsay’s substantial trustworthiness. . . . . If the test of substantial trustworthiness of hearsay evidence is met, a finding of good cause has also implicitly been made.

Reyes, 868 N.E.2d at 441-42. Hence, Reyes found, "[T]he substantial trustworthiness test implicitly incorporates good cause into its calculus." Id. at 441.

¶18 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.

¶19 In Appellant’s matter, the out-of-court statement concerning his purchase of matches was evidence meeting this test, as it was corroborated by evidence from the personal observations of the witness who testified at the revocation hearing. That out-of-court statement found verification from the investigating agent’s viewing of the store’s video tape, the agent’s subsequent discovery of matchboxes with missing striker plates lying outside Appellant’s trailer, and the finding of nearby methamphetamine manufacturing paraphernalia consistent with the need for a large quantity of matches. Because the out-of-court statement about Appellant buying matches, objected to on hearsay/confrontation grounds, bore substantial guarantees of trustworthiness, it was not error for the District Court to rely on it in revoking Appellant’s suspended sentence.15

¶20 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. 18

¶21 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. 19 This is also consistent with the requirement of Section 991b that the State present "competent evidence justifying the revocation of the suspended sentence." 20 Moreover, we keep in mind that the overarching concept embodied in the due process mandated for probation revocation hearings is that of fundamental fairness.21 Appellant has not demonstrated that the District Court’s partial reliance on that out-of-court statement in his particular case ultimately resulted in an unfair revocation proceeding.22


¶22 In Chase v. Page, this Court set out minimum due process procedures for parole revocations in Oklahoma. 23 Favorably quoting the holding in Chase that "principles of fundamental justice and fairness" required those procedures, the U.S. Supreme Court in Morrissey identified the goal it wished to reach through those due process guidelines it was adopting: "What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior."24

¶23 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.

¶24 The May 16, 2007, final order of the District Court of Pushmataha County, revoking a three (3) year, six (6) month portion of the suspended sentences of JERRY LYNN HAMPTON in Case No. CF-2002-119, is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.