Deriq Watters v. State of Indiana , 2014 Ind. App. LEXIS 570 ( 2014 )

Nov 21 2014, 8:28 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DERICK W. STEELE GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERIQ WATTERS, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1403-CR-215
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Jr., Judge
Cause No. 34D01-0706-FA-467
November 21, 2014
OPINION FOR PUBLICATION
MAY, Judge
Deriq Watters appeals the revocation of his probation. We reverse.
FACTS AND PROCEDURAL HISTORY
On June 26, 2007, Watters was charged with three counts of Class A felony dealing in
cocaine.1 Following a Recommendation of Plea Agreement, the court entered one conviction
of Class B felony dealing in cocaine. The court sentenced Watters to twenty years, with ten
years executed and ten years suspended.
After being released to probation, Watters was allegedly arrested in Marion County.
When he was contacted by his probation officer, Megan Enright, he “repeatedly said that it
was not him and that the case was going to be dismissed.” (Tr. at 11.) On June 11, 2014, the
State filed a Petition to Revoke Suspended Sentence based on Enright’s belief that Watters
had committed a new offense.
At the hearing, the State submitted two uncertified documents: an Abstract of
Judgment convicting Watters of Class B felony robbery in the Marion Superior Court, and a
purported plea agreement resolving that same cause. Watters objected to both arguing they
were inadmissible hearsay because they were uncertified. The court overruled Watters’
objections and entered the exhibits into evidence. After the hearing, the court ordered
Watters to serve the remainder of his suspended sentence in the Department of Correction.
DISCUSSION AND DECISION
Our standard of review of probation revocations is well-settled:
A probation revocation hearing “is not to be equated with an adversarial
criminal proceeding.” Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999), reh’g
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Ind. Code § 35-48-4-1 (2012).
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denied. Because probation revocation procedures “are to be flexible, strict
rules of evidence do not apply.” Id.; see also Ind. Evidence Rule 101(c). The
trial court may consider hearsay “bearing some substantial indicia of
reliability.” Id. at 551. Hearsay is admissible in this context if it “has a
substantial guarantee of trustworthiness.” Reyes v. State, 868 N.E.2d 438, 441
(Ind. 2007), reh’g denied. A trial court “possesses broad discretion in ruling
on the admissibility of evidence, and we will not disturb its decision absent a
showing of an abuse of that discretion.” C.S. v. State, 735 N.E.2d 273, 275
(Ind. Ct. App. 2000), trans. denied.
Peterson v. State, 909 N.E.2d 494, 499 (Ind. Ct. App. 2009). Watters asserts the State’s
evidence was inadmissible hearsay because the copies of the Abstract of Judgment and plea
agreement were not certified.
Courts may take judicial notice of another county’s conviction in order to revoke
probation in the original county of conviction; however, the documents from the other county
must be reliable. Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011). We have held
the “certification of the documents by the court provides substantial indicia of their
reliability.” Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. In lieu
of certified copies, we have held an affidavit from the issuing agency satisfies the evidentiary
requirement for a hearing to revoke probation and proves the document’s underlying
“substantial trustworthiness.” Reyes, 868 N.E.2d at 442. Additionally, we have allowed
uncertified evidence of a polygraph report, but only to explain the testimony that followed.
Peterson, 909 N.E.2d at 499.
In the case at hand, we do not have certified copies, affidavits, or testimony to
substantiate the exhibits offered into evidence. Enright testified that she had learned of
Watters’ arrest in Marion County, but she did not testify that she had been present at the
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signing of his plea agreement or at his conviction. The plea agreement is allegedly signed by
Watters, but no evidence was entered to substantiate that signature was Watters’ signature.
Enright did not testify that she had done anything to corroborate the validity of the documents
she received via email.
While trial courts have the discretion to admit hearsay evidence at a probation
revocation hearing, the admission must not violate the due process standards provided by the
United States Supreme Court. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (when a
loss of liberty is at stake, the parolee is to be accorded due process). We decline to extend
the lowered bar for admission of hearsay at probation revocation hearings to include evidence
with no “indicia of reliability.” See Cox, 706 N.E.2d at 552 (court is not bound by the
hearsay exclusion rule, but the hearsay must be reliable). Although there is no bright line test
of this reliability, testimony of the parties directly involved, affidavits of parties directly
involved, and certified copies would have sufficed without putting an undue burden on the
State. As the State did not provide any of those indicia of reliability herein, we hold the
evidence was inadmissible. Cf. Reyes, 868 N.E.2d at 442 (affidavit proved document’s
trustworthiness). Accordingly, we reverse.
Reversed.
VAIDIK, C.J., and FRIEDLANDER, J., concur.
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