John Scott Grigg v. State ( 2024 )

SECOND DIVISION
MILLER, P. J.,
MARKLE and LAND, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 25, 2024
In the Court of Appeals of Georgia
A24A0108. GRIGG v. STATE.
LAND, Judge.
John Scott Grigg appeals from the trial court’s order revoking his probation,
arguing that his due process right to confront adverse witnesses was violated and that
inadmissable evidence was considered during the revocation hearing. We granted
Grigg’s application for discretionary review. For the following reasons, we reverse the
trial court’s order.
As a general rule, “[t]his court will not interfere with a revocation unless there
has been a manifest abuse of discretion on the part of the trial court.” (Punctuation
and footnote omitted.) Dugger v. State, 260 Ga. App. 843, 843 (581 SE2d 655) (2003).
This Court will affirm a probation revocation if the record includes “some competent
evidence to show that the defendant violated the terms of his probation in the specific
manner charged.” (Citation omitted.) Grimes v. State, 364 Ga. App. 518, 519 (875
SE2d 500) (2022). See OCGA § 42-8-34.1. Moreover, evidence produced at a
revocation proceeding need only establish the violations of probation by a
preponderance of the evidence, a less stringent standard than that required to sustain
a criminal conviction. Caldwell v. State, 327 Ga. App. 471, 472 (758 SE2d 325) (2014)
(citing OCGA § 42-8-34.1 (b)).
The evidence adduced at the probation revocation hearing shows that in 2017,
Grigg pled guilty to possession of methamphetamine and possession of a firearm
during the commission of a crime. The trial court sentenced Grigg to a total of seven
years, with the first two years to be served in confinement, and the remainder to be
served on probation. On March 7, 2023, a warrant for Grigg’s arrest was issued on the
basis that Grigg had violated the conditions of his probation by refusing to participate
in the Coastal Residential Substance Abuse Treatment (“RSAT”). The warrant was
signed by Amanda Cannady of the Department of Community Supervision (“DCS”).
Later that month, the State filed a petition for revocation of Grigg’s probation on the
same basis, also signed by Cannady.
2
The matter proceeded to a probation revocation hearing at which the State
called Officer Cannady as its only witness. Officer Cannady testified that she was
employed by the DCS and that she does not work for the RSAT program or the
Department of Corrections. Officer Cannady testified that she was aware of the RSAT
program, but she was “not quite sure” about the exact requirements with which a
probationer had to comply. She testified that the terms of Grigg’s probation required
him to complete the RSAT program and that his remaining probation would be
terminated upon successful completion of that program. Officer Cannady was first
“made aware that [Grigg] did not want to complete RSAT” requirements on
February 21, 2023, when she received a form titled “Georgia Department of
Corrections Offender Refusal Form” (“Refusal Form”) from the Department of
Corrections. She was then told to issue a warrant for his arrest for his failure to
comply.
Office Cannady testified that did not speak with Grigg about the contents of the
Refusal Form or the refusal in general and did not witness Grigg sign or otherwise
acknowledge the Refusal Form. According to the Refusal Form, Grigg was informed
of the consequences of refusing to complete the RSAT program, acknowledged those
3
consequences, and signed his name and prisoner number. The Refusal Form also
contains a signature line for a “counselor” to sign as a witness. Although this witness
signature is illegible, Officer Cannady testified that it was not her signature. The trial
court sustained Grigg’s objection to any testimony by Officer Cannady regarding
Grigg’s specific actions that resulted in his failure to comply with the RSAT program.
Grigg’s counsel repeatedly objected to the admission of the Refusal Form on
the ground that it was inadmissible hearsay because Cannady, as the only witness, had
neither signed the form nor witnessed its signing. The State then recalled Officer
Cannady in an attempt to lay the foundation necessary to introduce the Refusal form
into evidence under the business records exception to the hearsay rule. See OCGA §
24-8-803 (6). The trial court allowed the Refusal Form to come into evidence under
the business records exception over Grigg’s objection. With the exclusion of Officer
Cannady’s testimony regarding Grigg’s behavior at the RSAT program, the Refusal
Form was the only evidence admitted at the revocation hearing showing that Grigg did
not complete the RSAT program.
After the close of the State’s evidence, Grigg then made an unsworn statement
to the trial court in support of mitigation of his sentence. During this unsworn
4
statement,1 Grigg argued that he signed the Refusal Form because he had been
accepted into a ministry-run residential rehabilitation program after he had begun the
RSAT program and that he sought to be transferred there instead.
Thereafter, the trial court found that the State had met its burden of proving by
a preponderance of the evidence that Grigg violated the terms of his probation by
refusing to complete the RSAT program and revoked two years of Grigg’s probation.
The trial court did not inquire into the issue of whether there was good cause for not
allowing the right of confrontation, and it did not conduct an examination of the
State’s reasons for failing to produce a witness from RSAT or the reliability of the
hearsay evidence. We granted Grigg’s application for a discretionary appeal from that
order.
1. Grigg contends that his due process right of confrontation to cross-examine
adverse witnesses was violated when those adverse witnesses failed to appear during
the probation revocation hearing without good cause shown. We agree.
1
See Bell v. Austin, 278 Ga. 844, 844 (1) (a) (607 SE2d 569) (2005) (“unsworn
statements are not treated as amounting to any evidence, except in specified cases
from necessity”) (citation and punctuation omitted).
5
The Confrontation Clause of the Sixth Amendment, made applicable to the
states through the Fourteenth Amendment, guarantees a criminal defendant the right
“to be confronted with the witnesses against him.” Under the Confrontation Clause,
testimonial hearsay is admissible against a criminal defendant only when (a) witness
is unavailable to testify and (b) the defendant had a prior opportunity to cross-examine
the witness. Crawford v. Washington, 541 U. S. 36, 53-54 (III) (124 S Ct 1354, 158 SE2d
177) (2004).
Nevertheless, “in a probation revocation hearing, the right to confront adverse
witnesses arises not under the Confrontation Clause, but rather as a matter of due
process, which is less stringent than the confrontation guarantee in a criminal trial.”
(Citation omitted.) Grimes, 364 Ga. App. at 520. The “minimum requirements of due
process include the right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing the confrontation).”
(Citation and emphasis omitted.) Id.2 Thus, the probationer must make some
2
See also Morrisey v. Brewer, 408 U. S. 471, 489 (III) (b) (92 SCt 2593, 33 LE2d
484) (1972) (minimum requirements of due process owed to parolees include the right
to confront adverse witnesses unless the hearing officer finds good cause for not
allowing such); Gagnon v. Scarpelli, 411 U. S. 778, 781-782 (II) (93 SCt 1756, 36 LE2d
656) (1973) (applying due process mandates set forth in Morrisey to probation
revocation proceedings).
6
“specific objection or invocation of the due process right . . . in order to trigger
consideration of the secondary issue of whether there was good cause for not allowing
the confrontation, which usually requires examination of both the reasons for the
State’s failure to produce the declarant and the reliablity of the hearsay evidence.”
(Punctuation omitted.) Grimes, 364 Ga. App. at 520, citing Williams v. Lawrence, 273
Ga. 295, 298 (540 SE2d 599) (2001). The State bears the burden of proving that
hearsay evidence bears a “sufficient indicia of reliability to withstand due process
scrutiny.” Grimes, 364 Ga. App. at 520-521.
In Grimes, supra, the State petitioned to revoke the defendant’s probation for
the commission of new offenses of aggravated assault and terroristic threats when he
appeared at the house of two named victims and threatened to harm them. 364 Ga.
App. at 519. The victims did not appear at the probation revocation hearing; rather,
the responding officer testified to one victim’s statements that he personally
witnessed and observed while responding to the scene. Id. at 519-520. The trial court
overruled the defendant’s objections to this officer’s testimony on due process and
hearsay concerns and revoked his probation. This Court reversed the trial court’s
order, in part, because the trial court “failed to examine the reasons for the State’s
7
failure to produce the victims” for good cause. Id. at 522. See also Ware v. State, 289
Ga. App. 860, 863 (658 SE2d 441) (2008) (when probationer raised due process
concerns at probation revocation proceeding, trial court “should also have considered
the secondary issue of whether there was good cause for not allowing the
confrontation”).
Similarly to Grimes, supra, the trial court in this case failed to examine whether
the State had a good reason for its failure to provide a witness with first-hand
knowledge of Grigg’s refusal to complete the RSAT program. Grigg’s counsel
objected to Officer Cannady’s testimony and the admission of the Refusal Form
multiple times as violating his due process right to confront the witness against him.
The trial court overruled the objection. In so ruling, the trial court did not examine —
nor did the State present –- any evidence to explain why the State failed to provide a
witness who was employed by the Department of Corrections or the RSAT program
or someone who otherwise had first-hand knowledge of Grigg’s refusal to comply with
the RSAT program or his signing of the document. The sole testimony that spoke to
the reliability of the Refusal Form was Officer Cannady, who was not employed by the
RSAT or the Department of Corrections, was not present when the form was signed
8
or acknowledged, did not sign the form herself, had no personal knowledge regarding
Grigg’s alleged singing of the Refusal Form, and had limited knowledge of basic facts
of the RSAT program.
Relying on several federal circuit court of appeal cases,3 the State invites us to
re-visit the requirement that a trial court must determine whether there was “good
cause” for failing to provide a probationer with the ability to confront and cross-
examine adverse witnesses against him before it may admit hearsay statements in a
probation revocation proceeding. We decline the invitation as the Georgia courts have
consistently used the same framework which requires the analysis for good cause as
part of the due process right of confrontation. See e. g., Williams, 273 Ga. at 298;
Grimes v. State, 364 Ga. App. at 520-501; Ware, 289 Ga. App. at 862-863.
3
See e. g. United States v. Simmons, 812 F.2d 561, 564 (II) (9th Cir. 1987)
(admission at probation revocation hearing of copies of hospital records prepared by
defendant’s attending physician and staff, and denial of defendant’s opportunity to
confront and cross-examine hospital personnel, was not plain error despite trial
court’s failure to inquire if the State had good cause for not providing these witnesses
when “cases also suggest that the reliability of evidence may provide a basis for its
admission”). But see United States v. Ferguson, 752 F.3d 613, 617 (II) (4th Cir. 2014)
(reliability of hearsay evidence cannot be the beginning and the end of the interest of
justice analysis, in determining whether good cause exists to deny defendant his
procedural right to confront and cross-examine a witness in a revocation hearing).
9
Because Grigg specifically invoked his due process right of confrontation and
because the trial court failed to examine the reasons for the State’s failure to produce
a competent witness to testify regarding the RSAT Refusal Form, we find that Office
Cannady’s testimony and the Refusal Form were erroneously admitted. See Grimes,
364 Ga. App. at 522.
2. Moreover, the State failed to meet its burden of proving that the Refusal
Form evidence fell under the business record exception to hearsay when there was no
testimony or other evidence presented that the State’s sole witness was employed by,
associated with, or familiar with the internal procedures of the RSAT program.
“Hearsay evidence has no probative value and is inadmissible in a probation
revocation proceeding.” Couch v. State, 246 Ga. App. 106, 107 (2) (539 SE2d 609)
(2000). This Court reviews a trial court’s ruling as to whether certain evidence
constitutes hearsay for an abuse of discretion. Beavers v. State, 346 Ga. App. 373, 378
(2) (816 SE2d 384) (2018).
To introduce a writing under the business records exception to the hearsay rule
(OCGA § 24-8-803 (6)), “a witness must lay a foundation indicating that he or she is
aware of the method of keeping the documents.” (Footnote omitted.) Santana v.
10
State, 283 Ga. App. 696, 698 (1) (642 SE2d 390) (2007) (citing former OCGA § 24-3-
14). See Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996) (although
certificate might have been a record made in the regular course of business as a record
of an event, it was not admissible as a business record without a foundation being laid
through the testimony of a witness who is familiar with the method of keeping records
and who can show that the entry was made in the regular course of business). “It is
not required that the witness made the records or kept them under his or her
supervision or control. Instead, the witness must be able to testify that the record was
made (1) in the regular course of business, and (2) at the time of the event or within
a reasonable time of the event.” (Citation and punctuation omitted.) Strobel v. State,
322 Ga. App. 569, 571 (745 SE2d 796) (2013) (citing former OCGA § 24-3-14).
Here, the State failed to lay a proper foundation to have Officer Cannady
introduce the Refusal Form under the business record exception to the hearsay rule.
It is undisputed that Officer Cannady, the State’s only witness, was not associated
with RSAT (the agency that oversaw Grigg’s participation in the program), was not
associated with the Department of Corrections (the agency that created the Refusal
Form), did not have any knowledge about when the Refusal Forms was signed, and
11
did not witness Grigg sign the document. Therefore, the State has not proven that
Officer Cannady was familiar with whether the Refusal Form was made in the course
of business or within a reasonable time after the event. Compare Jones v. State, 345
Ga. App. 14, 18-19 (2) (b) (812 SE2d 337) (2018) (investigator who had been employed
as a deputy with the sheriff’s office and who had personal knowledge of the
investigation in the case was able to lay a proper foundation for intoxilyzer printout
cards).
Because the State elicited no testimony to indicate that its only witness was
employed by, associated with, or familiar with the internal procedures of the agency
at issue or with that agency’s record keeping, we cannot find that the State laid a
proper foundation to admit the Refusal Form as a business records hearsay exception.
Accordingly, the trial court erred by basing its revocation decision on the Refusal
Form. See, e. g., Henley v. State, 317 Ga. App. 776, 778 (1) (a) (732 SE2d 836) (2012)
(reversing revocation of probation when the trial court relied solely on inadmissible
hearsay).
Judgment reversed. Miller, P. J., and Markle, J., concur.
12