Wellman (Tyge) v. State ( 2013 )

 Second, Wellman contends that he was denied his right to
confrontation and due process' during his probation revocation proceeding
because the only testimony regarding his violations was the hearsay and
double hearsay testimony of his probation officer. "[A] probationer has a
due process right to confront and question witnesses giving adverse
information at the formal revocation hearing." Anaya v. State, 96 Nev.
119, 123, 606 P.2d 156, 158 (1980). Although we review a district court's
admission of hearsay for an abuse of discretion, we review de novo
whether a defendant's right to confrontation was violated. Chavez v.
State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009).
In order to establish that Wellman violated the conditions of
his probation which prohibited unauthorized employment and patronage
of adult entertainment venues, the State presented the testimony of
Wellman's probation officer, Officer Davis, who had no independent
knowledge of the violations. The State commented that it had subpoenaed
the arresting officer, Officer Haynes, but he was not present. Instead,
Davis testified that Haynes told him he saw Wellman working as a strip
club promoter and verified Wellman worked there by speaking with the
club's manager. The district court overruled Wellman's objection to this
testimony and request to confront Haynes or the manager. Because Davis'
testimony was used to establish a substantive violation, was based on
multiple hearsay, and Wellman's request to test the accuracy of the
"To the extent Wellman contends that his right to due process was
violated because the district court did not allow him to sit next to counsel,
he fails to support his claim with any relevant authority or cogent
argument and therefore we decline to consider it. See Maresca v. State,
103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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underlying facts upon which his testimony was based was disregarded, we
conclude that his right to confrontation was violated. See Anaya, 96 Nev.
at 125, 606 P.2d at 159-60; Hornback v. Warden, 97 Nev. 98, 101, 625 P.2d
83, 84 (1981). However, we conclude that the denial of Wellman's right to
confrontation was harmless because evidence was presented that he
violated several other conditions of his probation, and Davis testified that
Wellman admitted to working as a promoter for the strip club. See Franco
v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (confrontation
errors are subject to harmless-error analysis); Chapman v. California, 386
U.S. 18, 24 (1967) (a constitutional error must be considered to be
harmless beyond a reasonable doubt).
Third, Wellman contends he was denied his right to a
preliminary inquiry and his right to have counsel present at the same.
Although we recognize that Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973),
and NRS 176A.580 require that a preliminary inquiry be held in order to
establish probable cause that a probationer violated the terms of his
probation, the failure to hold a preliminary inquiry here was harmless
because the final revocation proceeding complied with constitutional and
statutory requirements—Wellman was represented by counsel, had notice
of the proceedings and the nature of the alleged violations, and had the
opportunity to present evidence, see NRS 176A.600. Wellman did not
object below to the district court's failure to conduct a preliminary inquiry,
nor does he assert that he was prejudiced or that the final revocation
proceeding was constitutionally deficient other than as stated above. We
conclude that he is not entitled to relief on this claim. See generally
Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979) (denying relief for
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failure to conduct preliminary probation revocation hearing when final
revocation hearing complied with constitutional requirements).
Having considered Wellman's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
p 0A>1:*.
Parraguirre
J.
cc: Hon. Elissa F. Cadish, District Judge
William B. Terry, Chartered
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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