Moss v. TN Board of Paroles

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

BRIAN K. MOSS, vs. TENNESSEE BOARD OF PAROLES

Appeal from the Chancery Court for Davidson County, Part III

No. 99-1484-III, Hon. Ellen Hobbs Lyle, Chancellor

No. M2000-00128-COA-R3-CV - Filed September 28, 2000

At the hearing where appellant’s parole was revoked, the Hearing Officer admitted sworn statements

of alleged victims. The Trial Court upheld the revocation. We affirm.

Tenn. R. App. P.3, Appeal as of Right; Judgment of the Chancery Court affirmed.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which WILLIAM B. CAIN , J.,

and PATRICIA J. COTTRELL , J., joined.

Brian K. Moss, Henning, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and

Stephanie R. Reevers, Senior Counsel, Nashville, Tennessee, for Respondent-Appellee, Tennessee

Board of Paroles.

OPINION

Brian Moss appeals from the revocation of his parole, which on certiorari to the Trial

Court was affirmed.

Moss was serving a term of 21 years in prison, and had been granted parole twice,

had violated those paroles and was again paroled on November 2, 1998. A parole violation warrant

was issued on November 18, 1998 following the issuance of arrest warrants for Automobile Theft

and Theft of Personal Property (a 10 mm handgun and necklace).

At a hearing on February 25, 1999; a detective and Moss’s parole officer and a

supervising officer testified in person. The victims, the owner of the automobile and her son, the

owner of the handgun, made sworn statements via a verified videotape. The Hearing Officer found

that there was good cause for allowing the videotape instead of personal appearance because the

victims’ house and car had burned and they were without transportation. The Hearing Officer

recommended Moss’s parole be revoked, and that recommendation was adopted by the Board and

entered on March 8, 1999.

Subsequently, on petition for writs of certiorari to the Trial Court, the Trial Court

granted the Board summary judgment and dismissed Moss’s petition. In this regard, the Trial Court

held that Moss had failed to demonstrate that the Board had acted illegally, arbitrarily or fraudulently

in revoking parole since conviction of a criminal offense is not a prerequisite for revocation. The

Court further found that the hearing officer had made specific findings that good cause existed for

the victims’ absence at the hearing and that the video statements were reliable and of the type that

would be commonly relied upon. Therefore, the Court held that the use of videotaped evidence did

not violate Moss’s right to due process.

Prisoners do not have a right to be released from confinement prior to the expiration

of their sentence. See Tenn. Code Ann. § 40-28-117(a) (1997); Graham v. State, 304 S.W.2d 622,

623-24 (Tenn. 1957). A decision to grant parole is discretionary, and in the sole prerogative of the

Tennessee Board of Paroles. See Tenn. Code Ann. § 40-28-116(a)(1) (Supp. 1999); State ex rel.

Ivey v. Meadows, 393 S.W.2d 744, 747 (Tenn. 1965). Such decisions are reviewed by a common-law

writ of certiorari. See Tenn. Code Ann. § 40-28-115(c) (Supp. 1999); Flowers v. Traughber, 910

S.W.2d 468, 470 (Tenn. Crim. App. 1995). In order to obtain relief via the writ, the petitioner must

establish that the Board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. See

Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480 (Tenn.1997). While the constitutional

right to confront and cross-examine adverse witnesses as to the essential elements of a crime in a

criminal proceeding is absolute, State v. Wade, 863 S.W.2d 406, 407 (Tenn. 1993); Pointer v. Texas,

380 U.S. 400, 403, 85 S.Ct. 1065, 1068 (1965), the issue in a probation revocation proceeding is not

the guilt or innocence of the defendant, and the right to confront and cross-examine adverse

witnesses is not absolute and may be relaxed under some circumstances. Both the Tennessee

Supreme Court and the United States Supreme Court have recognized that “the full panoply of rights

due a defendant” in criminal prosecutions do not apply to parole revocations. Bledsoe v. State, 387

S.W.2d 811, 814 (Tenn. 1965); Black v. Romano, 471 U.S. 606, 613, 105 S.Ct. 2254, 2258 (1985).

Nevertheless, because a probationer’s conditional freedom from incarceration is at

risk, she must be afforded due process in the revocation proceeding. The United States Supreme

Court set forth the minimum requirements of due process in probation hearings in Morrissey v.

Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972). Those include:

(a) written notice of the claimed violations of parole; (b) disclosure to the 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 (unless the hearing officer specifically finds good cause for not allowing

confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and (f) a written

statement by the factfinders as to the evidence relied on and reasons for revoking

-2-

parole.

408 U.S. at 489, 92 S.Ct. 2604.

Our Supreme Court has determined that hearsay evidence is admissible at a parole

revocation hearing, thus depriving the parolee of the right to cross-examination, when minimum

confrontation requirements of Morrissey are met. State v. Wade, 863 S.W.2d 406, 409 (Tenn.1993)

(quoting favorably Wilson v. State, 521 A.2d 1257, 1260-61 (Md. Ct. App. 1987)). These include

(1) a specific finding by the trial court of “good cause” that would justify the denial of the

defendant's right to confront and cross-examine an adverse witness; and (2) a showing that the

information contained in the report is reliable. See Id. at 409.

Under this standard, the fact finder first must assess why confrontation is not

desirable or impractical. See Wade, 863 S.W.2d at 409; State v. Purkett, 825 S.W.2d 851 (Mo.

1992). Where it would be difficult or expensive to procure live witnesses because of long distances

involved, such fact militates in favor of not requiring attendance of the witness. Gagnon v. Scarpelli,

411 U.S. 778, 782 n.5, 93 S.Ct. 1756, 1760 n. 5 (1973) (out-of-state witness not required to attend

hearing where there was appropriate substitute for live testimony).

The second factor for determination is whether the hearsay evidence sought to be

admitted bears substantial indicia of reliability. State v. Wade, 863 S.W.2d 406, 409 (Tenn. 1993).

The Supreme Court in Morrissey v. Brewer, emphasized that

There is no thought to equate this second [final] stage of parole revocation to a

criminal prosecution in any sense. It is a narrow inquiry; the process should be

flexible enough to consider evidence including letters, affidavits, and other material

that would not be admissible in an adversary criminal trial.

408 U.S. 471, 489, 92 S.Ct. 2593, 2604 (1972). Likewise in Gagnon v. Scarpelli, the Court

explained:

While in some cases there is simply no adequate alternative to live testimony, we

emphasize that we did not in Morrissey intend to prohibit use where appropriate of

the conventional substitutes for live testimony, including affidavits, depositions, and

documentary evidence.

411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 1760 n. 5 (1973).

In this case, the Hearing Officer made a specific finding of good cause as to why the

victims were not present and why the videotaped statements would be allowed, i.e., the witnesses’

house and car had recently been burned in a fire, leaving them without transportation. The hearing

officer also found that there was sufficient indicia of reliability in the videotaped statements so that

the requirements of due process were satisfied. The police officer at the hearing was able to verify

-3-

the identity of the witnesses and authenticate the videotape.

On appeal, our review is limited to whether the hearing officer acted illegally,

fraudulently, or arbitrarily. Considering the totality of the circumstances, including the reason for

the witnesses’ absence, the nature of their testimony, and the fact that the arresting officer was

present and testified at the hearing, there is sufficient evidence to demonstrate that the Hearing

Officer properly admitted the statements. Under the authority of the cases considered in this

Opinion, we cannot conclude that the Hearing Officer acted in an arbitrary manner.

We affirm the judgment of the Trial Court and remand, with the cost of the appeal

assessed to the appellant.

_________________________

HERSCHEL PICKENS FRANKS , J.

-4-