### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE BRIAN K. MOSS, vs. TENNESSEE BO ARD OF PAROLES Appeal from the Cha

ncery Court for Da

vidson County, Part

III No. 99-1484-III, Hon. Ellen Hobbs Lyle, Chancellor

No. M2000-00128-COA-R3-CV - Filed September 28, 2000

At the hearing where

appellant’s parole was revoked, the Hearing Of ficer admitted sw

orn statements of alleged vict

ims. The Trial Cour

t upheld the revoc

ation. We affirm.
Tenn. R. App. P.3, App

eal as of Right; Judgm

ent of the Chancery

Court affirmed. H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which W ILLI AM B. C AIN , J., and P ATRICIA J. C OTTRELL , J., joined. Brian K. Moss, Henning, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor Gener al, and Stephanie R. Reevers,Senior Counsel, Nashville, Tennessee, for Respondent-Appellee, Tennessee Board of Parole

s.

OPINION

BrianMoss appeals from the revocation of his parole, which on certiorari to the Trial Court was affirmed.

Moss was serving

a term of 21 y

ears in prison, an

d had been gra

nted parole

twice, hadviolated those paroles and was again paroled on November 2, 1998. A parole violation warrant was issued on November 18, 1998 following the issu ance of arrest

warrants for Au

tomobile Theft and Theft of Personal Property (a 10 mm handgun and necklac e). At a hearing on February 25, 1999; a detec t ive an d Moss’s parole officer and a supervising officer testified in person. The victims, the owner of the automobile and her son, the owner of the handgun,

made sworn statem

ents via a verified

videotape. The Hearing Officer found that there was good cause for allowing the videotape instead of personal appeara nce because the-2-

victim s’ house and car had burned and they were without transportation. The He aring Officer recommended

Moss’s parole be revoked, and that recommendation was adopted by the Board and entered on March 8, 1999.

Sub seq uen tly, on petition for writs of certiorari to the Trial Cour t, the Trial Court granted the Board summary judgment and dismissed Moss’s petition. In this regard, the Trial Court held that Moss had faile

d to demonstrate that

the Board had a

cted illegally

, arbitrarily

or fraudulently in revoking parole since conviction of a criminal off

ense is not a prerequisite for revocation. The Court further found that

the hearing officer had made specific findings that good cause existed for the victims’ absen

ce at the hearin

g and that the vid

eo statements

were reliable

and of the type that would be commonly relied upon. Therefore, the Court held that the use of videotaped

evidence did not violate Moss’s right to due process.

Prisoners do not have a right to be released from confinement prior to the expiration of their sentence. See Tenn. Code Ann. § 40-28-117(a) ( 1997); Graham v. State , 304 S.W.2d 622, 623-24 (Tenn. 1957). Adecision to gran t parole is discretionary, and in the sole prerogative of the TennesseeBoard of Paroles. See Tenn. Code Ann . § 40- 28-116(a)(1) ( Supp. 1999); State ex rel. Iveyv. Meadows , 393 S.W.2d 744, 747 (Tenn. 1965). Such decisions are reviewed by a common-law writ of certiorari

. See Tenn. Code Ann. § 40-28-115(c) (Supp. 1999); Flowers v. Traughber , 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). In order to obtain relief vi

a the writ, the pet

itioner must establish that the Board e

xceeded its

jurisdiction or acted ill egal ly, f raud ule ntl y, or arbi tra ril y. See Arnold v. Te nnesse e Bd. of Paroles , 956 S.W.2d 478, 480 (Tenn.1997). While the constitutional right to confront and c

ross-examine adve

rse witnesses as t

o the esse ntial elements

of a crime in a criminal proceeding is absolute, State v. Wade , 863 S.W.2d 406, 407 (Tenn. 1993); Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 1068 (1965), the issue in aprobation revocation proceeding is not the guilt or

i nnocence of the

defendant, and t

he right to confr

ont and cross-exam

ine adverse witnesses is not absolute and may be relax ed under some circumstances. Both the Tennessee Supreme Court and the Unite

d States Supreme Cou

rt have recognize

d that “the full pa

noply of rig

hts due a defendant”

in criminal prosecutions do not apply to parole revocations. Bledsoe v. State , 387 S.W.2d 811, 814 (Tenn. 196 5); Black v. Romano , 471 U.S. 606, 613, 105 S.Ct. 2254, 2258 (1985). Nevertheless,

because a probationer’s conditional freedom from incarceration is at risk, she must be afforded due proc ess in th e revocation pro ceeding. The U

nited States Suprem

e Courtset forth the minimum requirements of due process in probation hear ings in Mo rrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593 (1972). Those include:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidenceagainst him; (c)

opportunity

to be heard

in person and to present witnesses anddocumentary evidence; (d) the right to confront and c ross-ex amine adv erse witnesses (unless the hearing officer specifically f inds good cause for not

allowing confrontation); (e) a

‘neutral and det

ached’ hearin

g body such

as a traditional pa

role board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evide nce r elied on and reasons for revoking-3- parole. 408 U.S. at 489, 92 S.Ct. 2604.

Our Su pre me Court has deter mined that hearsa

y evidence

is admissible at a pa

role revo cation he aring, thus depriving the parolee of the right to cross-examination, when minimum confrontationrequirements of Morrissey are met. State v. Wade , 863 S.W.2d 406, 409 (Tenn.1993) (qu oti ng fa vor abl y Wilson v. State, 521 A.2d 1257, 1260-61 (Md. Ct. App. 1987)). These include (1) a specific finding by the trial court of “good ca use” that would justify

the denial of the defend ant's righ t to confront and cross-examine an adverse witness; and (2) a showing that the information contained in the report is reliable. See Id . at 409.

Under this standard, the fac t finder first must assess why confrontation is not desirable or impractical. See Wade , 8 63 S.W .2d at 409; State v. Purkett , 825 S.W.2d 851 (Mo. 1992). Where it would be difficult or expensive to procure live witnesses because of long distances involved, such fact militates in favor of not requiring attendance of the witness. Gagnon v. Scarpel li , 411 U.S. 778, 782 n.5, 93 S.Ct. 1756, 1760 n. 5 (1973) (out-of-state witness not required to attend hearing where there was appropriate substitute for live testimony ). The second facto

r for determination is whether the hearsay evidence soug ht to be admitted bears substantial indicia of reliability. State v. Wade , 863 S.W.2d 406, 409 (Tenn. 1993). The Supreme Court i

n Morrissey v. Brewer , emphasized that There is no thought to equate this seco nd [final] stage of parole revocation to a criminal pro secu tio n in any sen se. It is a narrow inquiry; the process should be flexible enough to consider evidence including letter

s, affidavits,

and other material that would not be admissible in an adversary criminal trial. 408 U.S. 471, 489, 9 2 S.Ct. 2593, 2604 (1972). Likewise in Gagnon v. Scarpel li , the Court explained: Whilein so me case s there is simply no adequate alternative to live testimony, we

emphasize that we did not in Morrissey intend to prohibit us e where approp

riate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 1760 n. 5 (1973).

In this case, the Hearing Officer made a specific finding of g ood cause as to why the victims were not

present and why the videotaped statements would be

allowed, i.e., the

witnesses’ house and car had recently been burned in a fire, leaving them without transportation. The hearing officer also found that the

re was sufficie

nt indicia of reliability in the videotaped statements so that the requirements of due process were satisfied. The police officer at the hearing was able to verify-4-

the identity of the witnesses and authenticate the videotape.

On appeal, ou r rev iew is l imi ted to w het her t he h eari ng of fic er ac ted ill egal ly, fraudulently, or arbitrarily. Considering the totality of the circumstances, including the reason for th e w itnesses’ absence, the nature of their testimony, and the fact that the ar resting officer was present and testified at the heari ng, there is sufficient evidence to demonstrate that the Hearing Officer properly a

dmitted the stateme

nts. Under the aut

hority of the

cases considere

d in this Opinion, we cannot conclude that the Hearing Officer acted in an arbitrar y manner. We affi rm the judgment of the Trial Court and remand, with the cost of the appeal assessed to the ap

pellant.

_________________________ H ERSCHEL P ICKENS F RANKS , J.