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 ifthe record includes “some competent
evidence to showthat 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 ofthe Department ofCommunity Supervision (“DCS”).

Later that month, the State filed a petition for revocation of Grigg’s probation on the

same basis, also signed by Cannady.

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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 ofCorrections.Officer Cannady testifiedthatshe 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 speakwith Grigg about the contents ofthe

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

ofthe consequences ofrefusing to complete the RSAT program, acknowledged those

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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 atthe 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

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statement,1 Grigg argued that he signed the Refusal Form because he had been

accepted into aministry-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).

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The Confrontation Clause of the Sixth Amendment, made applicable to the

states through the Fourteenth Amendment, guarantees a criminal defendant the right

“to be confrontedwith the witnesses against him.” Underthe 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, 541U. 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 toparolees 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).

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“specific objection or invocation of the due process right . . . in order to trigger

consideration ofthe secondary issue ofwhether 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

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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 knowledgeof Grigg’s refusal to comply with

the RSAT program or his signing of the document. The sole testimony that spoke to

the reliability ofthe Refusal Form was Officer Cannady, whowas not employed by the

RSAT or the Department of Corrections, was not present when the form was signed

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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,3the 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 crossexamine 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).

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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.

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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

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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.

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