United States v. Larry Shurn

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No. 95-2756
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Larry R. Shurn, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 27, 1995
Filed: January 26, 1996
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
Larry R. Shurn appeals from the district court's1 order
revoking his supervised release. Shurn argues the admission of
hearsay testimony at his revocation hearing violated his right to
confront adverse witnesses. We affirm.
As relevant here, Shurn's release conditions required that he
refrain from committing any further crimes. At Shurn's revocation
hearing, the government presented the testimony of police officer
Kenneth Lige regarding a call he received that someone was trying
to break into a house. Lige testified that he arrived at the house
within thirty seconds of the call, observed a man running from the
front porch, and saw that the front door was open and a window next
1
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
to the door was broken. Lige handcuffed the man and placed him in
the police car for safety purposes, pending further investigation.
Lige testified that Shurn was the man he handcuffed.
Lige testified further that when he entered the house, he
found two women "crying hysterically"; one of the women appeared
badly injured. Over Shurn's hearsay objection, Lige testified that
the women asked, "Is he still around?" When Lige described the man
he had placed in the police car, the women said, "That's him,
that's him," and were relieved. The women also looked out the door
and confirmed that the man in the police car was Shurn. The
remainder of Lige's testimony--admitted over Shurn's continuing
hearsay objection--involved statements the two women made to him
about what allegedly occurred before Lige arrived on the scene,
including statements that Shurn kicked the door and broke the
window after beating one of the women.
The district court found that Shurn had violated the release
condition prohibiting him from committing further crimes, and two
other release conditions not at issue here. The court revoked
Shurn's supervised release and ordered him to be returned to
custody for twelve months and one day.
During a hearing to revoke or modify probation or supervised
release, the accused must be given "the opportunity to question
adverse witnesses." Fed. R. Crim. P. 32.1(a)(2)(D). As we have
noted, however, the right to question adverse witnesses provided by
Rule 32.1(a)(2)(D) is not absolute and has its basis in the due
process clause cases governing revocation of parole or probation by
the states. See United States v. Zentgraf, 20 F.3d 906, 909 (8th
Cir. 1994).
Although the Federal Rules of Evidence do not apply to a
supervised release revocation hearing, for purposes of analysis, we
conclude the victims' initial identification of Shurn as the
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perpetrator of the attempted break-in and damage to the house fall
within the "excited utterance" exception to the hearsay rule, which
makes availability of the declarant immaterial. See Fed. R. Evid.
803(2). As the excited utterance exception is deeply rooted in the
common law, the reliability of the identification was sufficient to
satisfy any constitutional concern. See White v. Illinois, 502
U.S. 346, 356-57 (1992); Stidum v. Trickey, 881 F.2d 582, 585-86
(8th Cir. 1989), cert. denied 493 U.S. 1087 (1990). Because such
evidence would be admissible at a criminal trial, and given the
Supreme Court's expressed view that "there is no thought to equate
this second stage of parole revocation to a criminal prosecution in
any sense," we see no violation of Shurn's rights by the court's
use of the identification testimony. Morrissey v. Brewer, 408 U.S.
471, 488-89 (1972).
We also conclude that the victims' admissible identification,
coupled with Lige's observations upon his arrival, including
photographs introduced showing the damage, sufficiently
demonstrated that Shurn breached the terms of his supervised
release. Upon our review of the revocation-hearing transcript, we
are confident that the district court did not consider the other
hearsay statements in reaching its decision, and thus find harmless
error in the admission of that testimony. See United States v.
Frazier, 26 F.3d 110, 114 (11th Cir. 1994). Accordingly, we
affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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