Armstrong v. State

MADDOX, Justice

(concurring specially in Part I of the opinion).

I agree that the case needs to go back to trial court to allow the trial judge to put into the record a written statement as to the evidence he relied on and the reasons why he revoked Armstrong’s probation. Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973). I think we all know that the trial judge relied on the testimony of Armstrong’s alleged co-conspirators and that of the probation officer in revoking Armstrong’s probation because of the robbery and kidnapping charges, but one of the Gagnon standards does say that the factfinder (that would be the trial judge in probation matters) must make a written statement; therefore, I think this written record needs to be made for whatever benefit, if any, it will be to Armstrong. Cf. Foy v. Bounds, 481 F.2d 286 , 4 Cir., 1973.

I also agree in that portion of the majority opinion which affirms the Court of Criminal Appeals in its conclusion that no corroboration of the testimony of accomplices is required in probation revocation hearings.

I do not agree with the holding of the majority that minimal due process was not accorded Armstrong in all other respects. I will detail each standard set out in Gag-non and attempt to show why Armstrong was accorded “due process,” in all other respects.

(1) Written notice of the claimed violation of probation.

I believe Armstrong received written notice of the claimed violations of probation. Armstrong was actually arrested on an order of 'his probation officer. The order was issued pursuant to Title 42, § 24, Code 1940 (Recomp. 1958) which provides:

“The period of probation or suspension of execution of sentence shall be determined by the court and such period may be continued, extended or terminated. Upon the satisfactory fulfillment of the conditions of probation or suspension of sentence the court shall by order duly entered on its minutes discharge the defendant. At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. Any probation officer, police officer or other officer with power of arrest upon the request of the probation officer, may arrest a probationer without a warrant. In case of an arrest without a warrant the arresting officer shall have a written statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation and said statement shall be sufficient warrant for the detention of said probationer in the county jail, or other appropriate place of detention, until such probationer shall be brought be *109 fore the court. Such probation officer shall forthwith report such arrest and detention to the court and submit in writing a report showing in what manner the probationer has .violated, probation. Thereupon the court, after a hearing, may revoke the probation or suspension of execution of sentence and shall proceed to deal with the case as if there had been no probation or suspension of execution of sentence; and, in cases certified from a court of inferior jurisdiction, shall order and adjudge that the sentence be immediately executed.” [Emphasis added.]

The trial judge had ordered a warrant to issue to arrest Armstrong on November 15, 1973. The minute entry reads:

“It being made to appear to the Court that the Probationer herein is delinquent as such, is reputed to have violated the criminal laws, and consorting with associates of bad repute and that a hearing should be,, had to determine whether probation herein should be revoked or other action taken by the Court.

“It is therefore the order and judgment of the court and it is ordered and adjudged by the court that probationer herein is delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationers probationary period be and hereby is tolled and stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside. Done and ordered this 15th day of November, 1973. Aubrey Dominick, Judge Presiding

“It being brought to the attention of the court that Probationer has been arrested, and has an attorney to represent him, the probation revocation hearing is hereby set for November 19, 1973, at 9:00 o’clock A.M. before the undersigned. Done and ordered this 15th day of November, 1973.

Aubrey Dominick, Circuit Judge.”

In Foy v. Bounds, supra, Judge Haynes-worth said: “The warrant gave him written notice of the conduct with which he was charged as violating the terms of his probation.” I do not know how specific the warrant in Foy v. Bounds,'was, but I think the procedure here was specific enough to notify Armstrong, under Gagnon standards, of the claimed violation. Furthermore, Armstrong’s lawyer was told on Thursday before the Monday hearing that Armstrong’s probation would probably be revoked because of the indictments. This was not written notice, but we are talking about “due process” and fundamental fairness. In short, I think Armstrong’s lawyer had sufficient notice of the alleged claims of violation of probation. I think he knew on Thursday that the trial judge would probably revoke probation because of the criminal charges.

(2) Disclosure to probationer of evidence against him.

The delinquency report prepared by the probation officer was given to Armstrong’s attorneys on the morning of the revocation hearing. The record reflects as far as I can determine, no attempt was made by Armstrong’s attorneys to get more speciics about the alleged claims of violation of probation during the four days prior to the hearing. Armstrong’s attorney asserted before the hearing began that he “assumed” the delinquency report constituted the charges. I am not sure this is a correct assumption. I believe that Title 42, § 24 contemplates that the warrant, or the probation officer’s statement, whichever is used, are the charges. Armstrong was given a copy of the delinquency report. Oral testimony was also presented at the hear *110 ing, and Armstrong was confronted by witnesses against him. Consequently, “due process” was accorded Armstrong in this respect, in my opinion.

(3) Opportunity to be heard in person and to present witnesses and documentary evidence.

(4) The right to confront and cross-examine adverse witnesses.

Both of these rights were given to Armstrong, in my opinion.

(5) A neutral and detached hearing body.

I believe that a hearing before a trial judge, even if he is the one who gave probation initially, satisfies this requirement of neutrality and impartiality.

(6) A written statement by factfinders as to evidence relied on and reasons for revoking probation.

The trial judge failed to do this. I. do not understand why a trial judge should be required to do this, but Gagnon does set it out as a standard.

What about a two-stage proceeding? Gagnon speaks of a two-step procedure — a preliminary hearing and a revocation hearing. In most cases, a two-step procedure will be required, especially if the probationer will be detained for a substantial period of time on a warrant or statement awaiting the revocation hearing. But is every probationer entitled to a two-stage proceeding, especially if he has been charged by a grand jury with the commission of a felony? I think not. Other courts which have considered the question agree with me. In fact, I do not believe Morrissey or Gagnon say that two hearings must be held in every case. The facts in Morrissey and Gagnon are so different from the facts of this case. As I read those cases, they do not condemn the Alabama procedure. In fact, Alabama’s procedural statute for parole revocation [Title 42, § 12, Code of Alabama, 1940 (Recomp. 1958)] is approvingly cited in the Morrissey case. 408 U.S. at page 488, 92 S.Ct. 2593 .

I think Morrissey and Gagnon address a serious problem — the detention of a parolee or probationer without minimal “due process.” Those cases are distinguishable from the facts of this case.

Morrissey was a parolee in Iowa, a state in which no law required a hearing before a parole could be revoked. Morrissey was arrested at his parole officer’s direction and held in a county jail until the Board of Parole revoked his parole after review of the parole officer’s written report. The Supreme Court of the United States held that federal procedural due process requires a hearing, which can be informal, before a state parole can be revoked and that, (1) where state statutes do not require such a parole revocation hearing [Alabama does], and (2) wheré there is a substantial time lag between arrest and final determination by the parole board [there was no time lag here], and (3) where the parolee is arrested at a place distant from the state institution to which he may be returned béfore the final revocation decision is made [probationer arrested in Tuscaloosa], given these factors, due process also requires a minimal inquiry preliminary hearing [hearing here was full blown], as promptly as convenient after the arrest [hearing held four days after arrest], and at or near the place of arrest or place of the alleged violation [held in Tuscaloosa where violation allegedly occurred] .

Morrissey further held that this hearing to determine probable cause to believe the parolee had committed acts violating his parole could be held before any neutral and detached independent hearing officer, even a parole officer other than the one recommending revocation [hearing here before a circuit judge]. Other minimal re *111 quirements for such initial hearing are detailed in the opinion.

Gagnon v. Scarpelli was a Wisconsin case. Wisconsin, unlike Alabama, had no law requiring a probation revocation hearing. Scarpelli was sentenced to prison but the sentence was suspended and he was placed on probation and permitted to reside in Illinois. The day after Scarpelli was accepted for supervision in Illinois, he was apprehended in the process of a house burglary. The Wisconsin department, apparently an administrative agency, forthwith revoked probation without a hearing [a hearing was held here], and Scarpelli was taken directly to prison in Wisconsin to begin serving his sentence. The Supreme Court held that probation, where sentence has been imposed, is constitutionally indistinguishable from parole, and that Scarpelli was entitled to a preliminary and final revocation hearing as specified in Morrissey v. Brewer.

In Gagnon , there was no hearing, preliminary or final.

Some state courts have addressed the question of the necessity for a preliminary hearing in every case. In Singletary v. State, Fla.App., 290 So.2d 116 , the District Court of Appeals certified the following question to the Supreme Court of Florida. “Does the decision of the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973), create an absolute requirement for a separate and distinct preliminary hearing prior to a formal probation revocation hearing?” The Supreme Court of Florida dismissed the certiorari on April 1, 1974, 293 So.2d 361 .

What is the purpose of the preliminary hearing suggested in Morrissey and Gag-non? In my opinion, the sole purpose of the preliminary hearing is to determine whether there is probable cause to believe that a probationer has violated the terms of his probation. See Stevenson v. State of Fla., Fla.App., 300 So.2d 281 ; Bernhardt v. State, 288 So.2d 490 (Fla.). As a matter of fact, the hearing is so informal that it can be held before a probation officer other than the one who is supervising the probationer.

See Singletary v. State, Fla.App., 290 So.2d 116 ; Annotation, 29 A.L.R.2d 1132 , Nature and Sufficiency of Notice in a Probation Revocation Hearing.

In Genung v. Nuckolls, 292 So.2d 587 (Fla.), Justice Roberts held that under Florida law a subsequent arrest on a felony charge of a probationer is prima facie evidence of violation of condition of parole and that an adjudication of guilt on the charge is unnecessary to a revocation of probation. The Genung case stands for the proposition that no preliminary hearing is necessary when there has been a subsequent arrest on a felony warrant. Judge Haynesworth, in Foy v. Bounds, 481 F.2d 286, 289 (4 Cir., 1973), discussed the standards set out in Gagnon , including the necessity for a preliminary hearing. He said:

“Within recent weeks, the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 announced due process standards governing probation revocation hearings. In effect, the Court adopted standards enunciated earlier for parole revocation hearings in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 . Except that there was no preliminary hearing in Ohio to determine probable cause for a later full revocation hearing, and with the possible exception of the matter of confrontation, to be discussed presently, Foy’s hearing abundantly complied with all of the due process requirements. The warrant gave him written notice of the conduct with which he was charged as violating the terms of his probation. There was full disclosure of all of the *112 evidence against him, and the entire file was opened to his lawyer. The hearing was before an impartial trial judge, who filed a written opinion stating his findings of fact upon which he based the revocation order.”

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“The absence of an earlier preliminary hearing in Ohio before an impartial officer, not necessarily a judicial one, would have provided immediate assurance against inappropriate recommendations by an over-zealous supervising probation officer, but the absence of such a hearing hardly can be said to have infected the integrity of the factfinding process in the North Carolina hearing.”

We have grand jury indictments here. A grand jury indictment satisfies any requirement of probable cause that the defendant violated the.law and a condition of probation, in my opinion. Why does the state have to hold another independent hearing to decide whether there is probable cause to detain the probationer until the time a revocation - hearing can be held when a grand jury has found an indictment? In other words, “due process” does require that the defendant not be at the complete mercy of the parole or probation officer as was true in both Morrissey and Gagnon . However, Armstrong is in a different position. A grand jury indictment charged that Armstrong had violated the law. The indictment was enough, in my opinion, to hold him until the revocation hearing set four days hence. In fact, the indictment authorized the state to arrest and hold Armstrong until he could make bond. The revocation hearing was held promptly, as required by law, so I see no denial of fundamental fairness.

Except as indicated, I think the trial judge complied substantially with Gagnon . I, therefore, thought it desirable to set forth my separate views in this special concurrence.