Armstrong v. State ( 1974 )

ALMON, Judge

(dissenting).

I must respectfully disagree with the Court’s interpretation of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; particularly, with their construction of the notice required to be given a probationer prior to his probation revocation hearing.

There has been some disagreement and confusion in the past as to the precise status of one on probation. Some have held the view that since the granting of probation initially is totally within the discretion of the trial judge, then the revocation of that probation could be accomplished in the same fashion. Others were of the view that when probation was granted it became a vested conditional right to remain at large subject to divestment only for good reason after a due process hearing.

The United States Supreme Court has in my judgment put to rest most of the confusion regarding a probationer’s rights with the decisions of Morrissey v. Brewer and Gagnon v. Scarpelli, supra. In Morrissey the Court, stated:

“We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”

And in Gagnon, supra, we find:

“Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.

“Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.”

In Morrissey the Court set out the minimum, and I repeat — the minimum, requirements of due process which must attend parole and probation revocation hearings as follows:

“We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They 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 parole. We emphasize there is no thought to equate this second 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.”

It is necessary to quote quite extensively from the record to see exactly what happened at the probation revocation hearing here in question:

“November 19,1973 — 9:50 a. m.

“THE COURT: We’re calling for trial on this hearing, on a Revocation of Probation, The State of Alabama versus W. C. Armstrong, Jr., Alias William C Armstrong, Jr., Alias Nick Armstrong: what says the State ?

“MR. LACKEY: The State is ready, if the Court please.

“THE COURT: Mr. Armstrong has an attorney; Mr. Redden, from Birmingham is his attorney. What says the Defendant?

“MR. REDDEN: May it please the Court, we have this morning been served with a Probation Delinquency Report dated November 16, 1973, and signed by Mr. Brazeal — the State Parole and Probations Supervisor. We take this document to constitute pleadings in the case; it is our conception of the law governing hearings of this sort, that actually they are and should be two step procedure. First, that there should be a proceeding in which the Defendant is advised of the nature of a charge against him, and perhaps some ascertainment by the Court as to whether the Court finds there might be probable cause to believe the grounds for revocation have in fact occurred. And then, secondly, there should be a separate hearing of the matter in which the Defendant is entitled to confrontation, and to present whatever testimony he might feel at that time compelled to present.

“Now, in either event — whether that is a correct statement of the law or not, with reference to the right to a two step proceeding — we do point out to the Court that the date of this report is the 16th of November, 1973, and that we are convened in court at this time on November 19, 1973. Of course, the date of November 16 was the date on which the Defendant surrendered to the Tuscaloosa County Jail on the other charges. We would like to ascertain since the report itself refers to several items, though it appears to conclude with an accusation, as far as possible revocation is concerned, by referring to only one transaction. We would like to ascertain before going forward at all, specifically which charge or charges revocation is sought upon. And then having received that we would ask the Court for an appropriate time within which to prepare a defense to that charge or charges. I don’t know whether the Court has had an opportunity to read the delinquency report or not.

“THE COURT: I read it just prior to the time you were handed a copy; I had not seen it until then, either.

“MR. REDDEN: Well, I think that Your Honor sees what I am speaking of: I think first it would be only appropriate that we know exactly what the nature of the charge or charges would be, and from what source the testimony would come, in order that we might prepare for it. And at this time, we do request that we be advised specifically on what grounds revocation is sought.

“MR. LACKEY: If the Court please,—

“MR. REDDEN: That is all I have at this time.

“MR. LACKEY: Excuse me, Judge, I rather took that as a request for information or position. As I understand it, Judge, the only statement that was made in here — in the report — and I only read it a couple minutes ago, was the position that the probation officer would take. And I do not take that his recommendation was in any way part of the charge or claim made against the probationer. And of course, it would be the position of the State that the charge involves the whole thing, all of the things which are indicated as being shortcomings of Mr. Armstrong as a probationer. And I think they are fairly clearly set out. . . . This Sunday closing law — with that one; with some of these other things — put them all together, all of these other things, and I think they all constitute the charge.

“THE COURT: Do you have any reply to that, Mr. Redden ?

“MR. REDDEN: This Defendant was placed on probation February of 1971. According to the pleadings, the charge that a worthless draft was given, if that occurred, was received in March of 1971, about twenty-nine months ago. This was a matter that was known and determined apparently at that time, as not constituting a basis for a revocation or an attempted revocation of the probation. Now, we say that if the District Attorney, and we think that the proper position of the law actually is that the District Attorney is not a prosecutor of probation revocations; that this is a matter in which the probation officer is the representative of the State. I don’t mean that the probation officer might not be entitled to counsel: I have not suggested that. But, that when the point has been reached that probation has been granted to someone, then the revocation of probation or not, ceases to be a matter for determination by the prosecuting attorney, or a matter wherein he would determine that— Well, enough is enough, as he says, dealing with cumulative matters.

“But if then, other charges are made and embraced within the basis for possible revocation on this hearing — and when I say, ‘other charges,’ I mean other than the allegations concerning robbery and kidnapping —then, I think that it is obvious that we are entitled to a more specific statement of when and where, since the District Attorney has stated that everything embraced in the delinquency report is going to be brought up or going to be insisted upon as a basis for revocation. There are statements with regard for example, to the business and occurrences there, where people are not identified, where time is not identified, and only in the most general fashion is conduct defined. The same thing is true with reference to placing bets on some fights, so that we say then, if this pleading —the delinquency report — and we object to it as anything other than a pleading, because it obviously is hearsay, insofar as it contains any factual statements, but if this delinquency report is to be used as a pleading, and if the basis of the charge is to be anything other than the allaged robbery case, then we are entitled to a more specific statement of it.

“THE COURT: Well, I am going to rule that the report as such is a discretionary matter with the Court, about the revocation of probation. And I will take the report and give weight to those things that I feel like weight should be given to: for instance, the Sunday closing, Mr. Armstrong himself called me and wanted to know if he needed to talk to me about that, after he was arrested. I am not sure if he was arrested, or what happened — I think he was arrested. But anyway, I told him it was not necessary; that was reported to me, and that was in the probation — That would pertain to the probation officer at the time. At that time, I believe Mr. Na-gel was in charge of it then, and I declined to set that down for a revocation hearing. But now, with an indictment by the Grand Jury on the robbery, and so forth, and it was reported to me that a hold had been given to the Sheriff, I did think it was important enough to set it down. So, we are going to proceed with this hearing: that is the ruling of the Court, and you have the right to except to the ruling of the Court.

“MR. REDDEN: We do respectfully except. May it please the Court, we point this out: let me first ask you so that I may be clear. Is for example, the matter of the Sunday closing law that your Honor referred to, is the matter of that incident involved in this probation revocation pleading?

“THE COURT: Well, I think it is an accumulation. But I am not — The main one I am interested in is the robbery charge, indictment by the Grand Jury in four cases, I believe, by the Grand Jury. I am interested in the Sunday closing, but not mainly interested in it.

“MR. REDDEN: When I say, ‘it,’ I am referring to Sunday closing violation, again. If it is a matter that would be considered at all by the Court, of course, we would want—

“THE COURT: Well, I will decide whether or not on that, and I don’t have to tell you, Mr. Redden.

“MR. REDDEN: The only reason I would disagree with Your Honor in connection with that is this: in the first place, as I understand—

“THE COURT: Well, there is a law, and I know there is some argument — I am not interested in that. I am interested mainly in the indictment of the Grand Jury, and these four cases in which he was indicted in.

“MR. REDDEN: Yes, sir. Now, as to that: again, and I don’t know, and I am not trying to appear stupid — whether there would be other matters, then, other than that, that the Court is considering on the hearing, I am not clear on that.

“MR. LACKEY: Judge, I am going to object to trying to get a ruling in advance.

“THE COURT: I am going to hear anything that I want to, Mr. Redden; I have told you that, and you can object at the proper time.

“MR. REDDEN: All right.

“THE COURT: But the main thing I am interested in, is the indictment of the Grand Jury.

“MR. REDDEN: Yes, sir.

“THE COURT: And that is all I am mainly interested in hearing anything, and evidence about.

“MR. REDDEN: All right, sir. We respectfully except. Now, may I return for a moment to my first proposition I was stating initially: that is, that we do take the position that it is, and is due to be a two step proceeding in which the Defendant is advised in the first proceeding of the nature of the charge against him, and then the Defendant is given a reasonable time to prepare to meet that charge. And we would ask for that time, at this time.

“THE COURT: Well, I decline to grant any further time. I think the law had been met, and we will proceed now with the hearing.

“MR. REDDEN: Yes, sir. We respectfully except, Your Honor.

“THE COURT: All right.

“MR. LACKEY: The State calls Mr. Jerry Brazeal.”

Later in the hearing the delinquency report was introduced into evidence. Included in that report were, inter alia, that “Armstrong has been charged with committing two cases of Robbery and Conspiracy to Rob and two cases of Kidnapping;” that “However, Armstrong was slow about reporting. During his period of probation Armstrong’s name has continued to pop up in other criminal actions. However, no cases were brought against him. Armstrong is managing the Ponderosa Lounge in Northport. This lounge is reputed to be a place of very bad reputation and character. Several people are cut out there every week. Armstrong is taking a hap-hazard attitude toward probation and seems to have continued as he was before;” and that “On June 15, 1973 Armstrong was found guilty of Selling Beer on Sunday in Tuscaloosa County Court.”

When appellant’s attorney on the very morning of the hearing was presented with a copy of the delinquency report for the first time, he inquired of the trial court as to which charge or charges would form the basis of the hearing. The court responded that he did not have to tell counsel whether the Sunday closing violation would be included or not. Later, the court stated, “but the main thing I am interested in is indictment of the grand jury.” The district attorney’s position was that everything in the delinquency report would form the basis of the charges.

So, we have a situation where no official notice was given until the morning of the hearing and I think it is fair to say the notice given then was somewhat equivocal. Under these circumstances it is difficult to see how one could be prepared to defend oneself against charges not definitely specified. Due process demands the opportunity to be heard in defense. There is no assurance whatsoever that the appellant could have successfully defended these charges if he had had proper notice; in fact, in all probability he could not have. But his opportunity to defend should remain inviolate. Implicit in the opportunity to defend is proper notice.

I am of the opinion that the appellant was denied due process of law under the holdings of Morrissey and Gagnon, supra. See also McCain v. Sheppard, 33 Ala.App. 431, 34 So.2d 225.