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Certiorari Granted, No. 31,567, March 24, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-036

Filing Date: January 26, 2009

Docket No. 27,022

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JAIME GUTHRIE,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

Ricky D. Purcell, District Judge

Gary K. King, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Stephanie Erin Brunson, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Defendant Jaime Guthrie challenges the district court’s revocation of his probation.

Defendant argues that he was denied due process under this Court’s decision in State v.

Phillips, 2006-NMCA-001, ¶¶ 11-16, 138 N.M. 730, 126 P.3d 546, when the district court

revoked his probation based on the hearsay testimony of a witness who, without any personal
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knowledge of the bases upon which the State was seeking revocation, read into evidence the

statements included in Defendant’s probation file. We conclude that the district court did

not specifically find good cause for not requiring confrontation as mandated by Phillips, and

we reverse and remand. In reaching our conclusion, we take this opportunity to clarify (1)

the distinction raised in Phillips between the Sixth Amendment right to confrontation

guaranteed to defendants in criminal prosecutions and the Fourteenth Amendment minimum

due process right to confrontation guaranteed to defendants in probation revocation hearings

and (2) the justifications for a finding of good cause by the district court.

BACKGROUND

{2} In July 2005, Defendant pleaded guilty to three charges related to an altercation with

a law enforcement officer that took place earlier that year. Following Defendant’s guilty

plea, the district court deferred sentencing on the condition that Defendant be placed on

supervised probation for two and one half years less one day. The conditions of Defendant’s

probation required him to, among other things, successfully complete a ninety-day

residential treatment program, regularly report to his probation officer, and make monthly

probation payments. In September 2005, Defendant allegedly violated several conditions

of his probation agreement, and the State subsequently filed a motion to revoke his

probation. Four days after the State filed its motion, a stipulated order was filed in the

district court that allowed Defendant to remain on probation and ordered his transfer from

state custody to a residential treatment center in order to fulfill his agreement to complete

a treatment program. In May 2006, the State filed a second motion to revoke Defendant’s

probation based in part on the allegation that he failed to successfully complete his required

program at the residential treatment center.

{3} Prior to the August 10, 2006 hearing on the State’s second motion to revoke

Defendant’s probation, the State issued a subpoena to secure the presence of Defendant’s

probation officer, Cindy Chavez, at the hearing. However, the State’s subsequent “notice

of intent to call witnesses” indicated that it only planned to call Jaime Olivas, Ms. Chavez’s

supervisor, to testify. Indeed, Mr. Olivas was the only witness who testified at the hearing.

{4} At the hearing, before Mr. Olivas testified, Defendant requested the dismissal of the

State’s motion and argued that any testimony offered by Mr. Olivas would be hearsay and

would violate Defendant’s constitutional right under the Confrontation Clause of the Sixth

Amendment to the United States Constitution. The district court noted the objection and

proceeded with the hearing. The State then called Mr. Olivas, who testified that he was Ms.

Chavez’s supervisor, that Ms. Chavez was required to submit probation violation reports to

him, and that he could be considered a “custodian” of such reports. Mr. Olivas then testified

that he did not sign the report authored by Ms. Chavez concerning Defendant’s alleged

probation violations. Defendant promptly made a hearsay objection, which was overruled.

Mr. Olivas then continued to testify about the statements included in Defendant’s file. He

stated that Defendant’s file indicated that Defendant had been discharged from a program

at a residential treatment center for violating its rules, that Defendant had failed to report to
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the probation office, and that Defendant had failed to make mandatory probation payments.

On cross-examination, Defendant focused exclusively on the fact that Mr. Olivas had not

previously worked on Defendant’s case, and Mr. Olivas ultimately admitted that he had “no

personal knowledge” of Defendant’s case “except for what [was] contained in the file.”

{5} Closing arguments followed Mr. Olivas’ testimony. The State focused its argument

on its establishment of a foundation that Mr. Olivas acted as a “business custodian” of the

report that alleged Defendant’s violations of his probation conditions. In response,

Defendant argued that he had a constitutional right “to cross-examine and confront all the

witnesses against him” and that Ms. Chavez’s absence was therefore fatal to the State’s

argument in favor of revoking Defendant’s probation. Defendant further argued that “there

is clear and established case law . . . that the court’s decision cannot be based entirely on

hearsay.” Finally, Defendant expressed his outrage at the fact that Mr. Olivas had not

“approve[d]” the report submitted by Ms. Chavez.

{6} Ultimately, the district court ruled in favor of the State and revoked Defendant’s

probation. In doing so, the district court stated that the testimony of Mr. Olivas was

“probative of the fact” that Defendant had violated the terms of his probation by not

successfully completing the residential treatment program. The judge further explained that

the “filings” in Defendant’s case indicated that Defendant had not successfully completed

the residential treatment program and that Defendant had failed to provide any evidence that

such was not the case. Defendant appeals from that ruling.

CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AT PROBATION

REVOCATION HEARINGS

{7} We review the district court’s revocation of a defendant’s probation for an abuse of

discretion. Phillips, 2006-NMCA-001, ¶ 10. “The district court abuses its discretion when

its ruling is based on a misunderstanding of the law.” Id. Our task therefore requires an

examination of the applicable constitutional law to determine if the district court issued its

ruling based on a misunderstanding of Defendant’s right to confront the witnesses against

him at his probation revocation hearing. As such, our review is de novo. See State v. Ochoa,

2008-NMSC-023, ¶ 10, 143 N.M. 749, 182 P.3d 130 (“The application and interpretation

of law is subject to a de novo review.”).

{8} Defendant’s argument that the district court violated his right to due process by not

permitting him to confront his probation officer, and therefore abused its discretion in

revoking his probation, relies heavily on this Court’s decision in Phillips. In Phillips, we

considered the revocation of a defendant’s probation when “[t]he [s]tate’s only witness at

the hearing was a probation officer who relied solely upon statements made in

unauthenticated documents in her file.” Phillips, 2006-NMCA-001, ¶ 1. Those statements

included “an annotation from another probation officer and some documents . . . from

Arizona,” where the defendant’s probation had previously been transferred. Id. The

probation officer who testified was otherwise unfamiliar with the defendant’s case. Id. ¶ 4.
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Over objection, the district court concluded that the documents that included the hearsay

statements that were offered as testimony “were relevant and kept in the ordinary course of

business” and therefore allowed the probation officer to read the statements into evidence.

Id. ¶¶ 1, 6. Relying on those hearsay statements, the district court concluded that the

defendant had violated his probation. Id. ¶ 8. The defendant subsequently appealed to this

Court, arguing that, by relying on those statements as the sole basis upon which to revoke

his probation, the district court violated “his confrontation and due process rights.” Id. ¶¶

1, 9.

{9} In reaching our decision in Phillips, we explained that the formal rules of evidence

do not apply to probation revocation hearings, id. ¶ 11; see also Rule 11-1101(D)(2) NMRA

(stating that the rules of evidence are not applicable to proceedings for “granting or revoking

probation”), and we clarified that the pertinent question was whether the defendant was

“afforded minimum due process” in light of the hearsay testimony to which he objected.

Phillips, 2006-NMCA-001, ¶ 11. As such, the rule that came out of Phillips was that, before

a district court may revoke a defendant’s probation, due process requires the actual presence

and testimony of the person whose statements form the basis of revocation, unless the state

makes an adequate showing, and the district court makes a specific finding, of “good cause”

for not calling such person as a witness. See id. ¶¶ 12, 14, 16.

{10} Although Phillips may seem to address a defendant’s right under the Confrontation

Clause of the Sixth Amendment to confront and cross-examine witnesses at probation

revocation hearings, it does not. Rather, Phillips explains the right as one that exists under

the authority of the Due Process Clause of the Fourteenth Amendment. See id. ¶ 12

(explaining that the question is one of “due process” and citing the applicable federal case

law explaining the existence of the right under the Fourteenth Amendment). In reaching this

distinction, we note that the Confrontation Clause of the Sixth Amendment applies only to

“criminal prosecutions.” U.S. Const. amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.”). The right to

confront witnesses that is guaranteed in the Sixth Amendment does not apply to probation

revocation hearings. See, e.g., State v. Rose, 171 P.3d 253, 257 (Idaho 2007) (“A motion to

revoke probation is not a criminal prosecution. Consequently, the Sixth Amendment’s

Confrontation Clause, which grants to criminal defendants the right to confront adverse

witnesses, does not apply to probationers.” (citations omitted)); see also State v. Sanchez,

109 N.M. 718, 719, 790 P.2d 515, 516 (Ct. App. 1990) (stating that a probation revocation

hearing is not a criminal prosecution). However, as we concluded in Phillips, the right to

confront witnesses whose statements form the basis of a district court’s revocation of a

defendant’s probation is implicit in the Due Process Clause of the Fourteenth Amendment,

and it is that constitutional authority that governs the propriety of admitting hearsay evidence

in support of revocation at probation revocation hearings. See Phillips, 2006-NMCA-001,

¶¶ 12, 16.

PRESERVATION
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{11} Against that backdrop, we must address the State’s argument that Defendant did not

adequately raise the issue in district court for purposes of preservation. “In order to preserve

an error for appeal, it is essential that the ground or grounds of the objection or motion be

made with sufficient specificity to alert the mind of the trial court to the claimed error or

errors, and that a ruling thereon then be invoked.” State v. Varela, 1999-NMSC-045, ¶ 25,

128 N.M. 454, 993 P.2d 1280 (internal quotation marks and citation omitted). Our question

therefore becomes whether the constitutional and hearsay objections that Defendant raised

at the hearing were sufficiently specific to alert the mind of the district court to the due

process right to confrontation issue that Defendant now argues on appeal, thereby adequately

invoking a ruling.

{12} As discussed above, and as Defendant concedes in his brief in chief, the

constitutional right to confrontation at issue in this case flows from the Fourteenth

Amendment, not the Sixth Amendment. The State therefore argues that, although Defendant

adequately preserved a Sixth Amendment Confrontation Clause argument, he failed to

preserve the Fourteenth Amendment due process argument, based on Phillips, that he now

raises on appeal. In support of its argument, the State contends that all of Defendant’s

objections were expressly couched in terms of his inapplicable rights under the Sixth

Amendment. Defendant, on the other hand, points our attention to the “confrontation

objection” that his counsel “made more generally under the United States Constitution” in

closing argument.

{13} Although our review of the audio recording of Defendant’s probation revocation

hearing confirms the State’s contention that Defendant initially made only a Sixth

Amendment constitutional objection, it also reveals that Defendant did, indeed, make a more

general constitutional argument regarding confrontation in his closing statement.

Specifically, Defendant referred to his right “to cross-examine and confront all the witnesses

against him” as well as the “clear and established case law” that establishes such a right.

Indeed, Defendant’s argument could have been made more artfully, and this problem could

have been entirely avoided had Defendant specifically structured his argument in terms of

due process. However, although Phillips is clear in its holding that the Fourteenth

Amendment and not the Sixth Amendment is at issue, the language of Phillips is not at all

times clear as to the type of argument a defendant needs to make. For instance, Phillips

speaks in general terms at the beginning of the opinion that its holding is “that [the

d]efendant’s right to confront the witnesses against him was violated.” Phillips, 2006-

NMCA-001, ¶ 2. In addition, the section of Phillips that discusses due process requirements

is labeled “The Confrontation Clause and Admissibility of Evidence.” Id. ¶¶ 11-16. Due

to this lack of clarity, we will not punish Defendant for his failure to articulate the terms

“Fourteenth Amendment,” “due process,” or “Phillips” in his objections when his claimed

error of a lack of confrontation was generally argued before the district court. See Garcia

ex rel. Garcia v. La Farge, 119 N.M. 532, 540-41, 893 P.2d 428, 436-37 (1995) (accepting

the sufficiency of the plaintiffs’ due process arguments even though they “were not a model

of clarity, and certainly could have been made with more specificity,” and stating that “[t]he

rules that govern the preservation of error for appellate review are not an end in themselves,
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rather they are instruments for doing justice”). We intend this opinion to correct this lack

of clarity.

GOOD CAUSE EXCEPTION

{14} Because we conclude that Defendant adequately preserved his argument for appeal,

we must next apply the rule in Phillips to his case. Defendant argues, and we agree, that

Phillips mandates the district court to make a specific finding of good cause for not requiring

confrontation before revoking a defendant’s probation based on hearsay testimony. See

Phillips, 2006-NMCA-001, ¶ 14. As we read Phillips, the district court may make this

finding by (1) specifically addressing the State’s problems in securing the presence of the

absent witness or (2) specifically stating the reasons that the hearsay evidence offered has

particular indicia of accuracy and reliability such that it has probative value. See id. ¶¶ 16-

17.

{15} In this case, the district court did not address Ms. Chavez’s absence. It stated that

the evidence was “probative of the fact” of Defendant’s probation violation and that the

“filings” in the case showed that Defendant had not successfully completed the residential

treatment program. Although these statements concerning the evidence bear on the issue of

good cause, they are merely conclusions; they do not specifically state the reasons that the

evidence was sufficiently accurate or reliable so as to excuse the presence of Ms. Chavez.

Cf. State v. Scurry, 2007-NMCA-064, ¶¶ 12, 14, 141 N.M. 591, 158 P.3d 1034 (holding,

with regard to the need for a specific finding of a serious violent offense to satisfy the Earned

Meritorious Deductions Act, that the district court’s findings need to sufficiently justify and

specifically indicate the basis for its conclusions). They are therefore insufficient to satisfy

the “good cause” requirement of Phillips. As a result, because the district court did not

properly apply the due process standard of Phillips, we reverse the revocation of Defendant’s

probation and remand to the district court to conduct further proceedings that meet this

standard.

{16} Because we remand, we take this opportunity to clarify Phillips as it may apply to

the record in this case. In particular, we address our declination in Phillips to consider the

force of the business records exception in that case.

{17} In Phillips, the probation officer testified by reading from unauthenticated documents

in the probation file. Phillips, 2006-NMCA-001, ¶ 1. The probation officer said that she

was the custodian of the records and that they were “kept in the ordinary course of business.”

Id. ¶ 8 (internal quotation marks omitted). The documents included notations from another

probation officer and documents likely from the probation department in Arizona, which had

responsibility of Defendant. Id. ¶¶ 4, 6. The probation file also included documents

ascribed to “Myrna” without indicating Myrna’s relationship to the case or the reason for her

providing documents to the probation officer. Id. ¶ 13.

{18} We did not address the admissibility of the documents in the probation officer’s file
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in Phillips under the business records exception, Rule 11-803(F) NMRA, focusing instead

on the due process concerns of revoking probation based entirely upon the probation

officer’s reading of documents “prepared and given to her by other persons without any

showing or finding of good cause for not calling those people as witnesses.” Phillips, 2006-

NMCA-001, ¶¶ 2, 11 (“[T]he question before us is not so much whether the testimony fell

under the business records exception, but whether, in this informal environment, [the

d]efendant was afforded minimum due process.” (citation omitted)). Ultimately, when we

analyzed the evidence in Phillips, we held that the state did not meet its burden of

establishing a probation violation with reasonable certainty. Id. ¶ 17. We stated, quoting

State v. Vigil, 97 N.M. 749, 753, 643 P.2d 618, 622 (Ct. App. 1982), “[w]hile some hearsay

is permissible in a probation revocation hearing, when that hearsay is ‘untested for accuracy

or reliability, [it] lacks probative value; the result is that the revocation of probation does not

rest on a verified fact.” Phillips, 2006-NMCA-001, ¶ 17 (second alteration in original).

{19} In Vigil, we held that the hearsay statement of a confidential informant, as testified

to by a detective and as contained in a probation officer’s report, was insufficient to support

a probation revocation. 97 N.M. at 753, 643 P.2d at 622. The hearsay was untested for

accuracy or reliability and therefore lacked probative value. Id. Yet we recognized that

hearsay may have probative value based on its “rational persuasive power.” Id. at 752, 643

P.2d at 621. Indeed, we specifically recognized that hearsay may be considered in probation

revocation hearings “if of probative value, even though it may be in the form of letters,

reports of probation officers and similar matter.” Id. (internal quotation marks and citation

omitted).

{20} In the context of the proper use of probative hearsay evidence in a probation

revocation hearing, the requirement of “good cause” to relax the need for confrontation also

focuses upon the need for accurate or reliable evidence. The district court must balance the

difficulty in obtaining the witness in question along with the probative value of the evidence

without the witness. See id. The weaker the probative value, the greater the need for

confrontation, and, hence, the greater the need to justify the absence of the witness. The

stronger the probative value, the lesser the needs of confrontation and justification. Indeed,

with a showing of sufficiently probative or reliable hearsay evidence, there is no need to

show good cause for the absence of the witness. See id. at 751-53, 643 P.2d at 620-22

(stating that the district court must specifically find good cause for not allowing

confrontation and noting that hearsay evidence without confrontation is sufficient if of

probative value).

{21} Business records can be sufficiently reliable to support a probation revocation. See

Robinson v. Cox, 77 N.M. 55, 59-60, 419 P.2d 253, 256-57 (1966) (upholding parole

revocation based on sole evidence of letter). To be sure, the indicia of reliability of

particular business records give rise to the very reason that they are admissible as an

exception to the rule that hearsay is inadmissible. See State v. Christian, 119 N.M. 776, 779,

895 P.2d 676, 679 (Ct. App. 1995) (“The reliability of business records is usually premised

upon routine, trusted patterns of record generation and the confidence engendered by
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showing that a particular record is created and maintained in conformity with that routine.”).

In Phillips, although we did not directly address the reliability of the probation officer’s file,

there were significant questions raised as to its reliability. See Phillips, 2006-NMCA-001,

¶¶ 18-21. However, we do not wish to foreclose the district court, in this or other cases,

from analyzing the documents before it in order to ascertain whether they are sufficiently

probative so as to enable it to find good cause for not requiring confrontation.

CONCLUSION

{22} We reverse the district court’s revocation of Defendant’s probation and remand for

further proceedings in accordance with this opinion.

{23} IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Guthrie, No. 27,022

AE APPEAL AND ERROR

AE-PA Preservation of Issues for Appeal

CT CONSTITUTIONAL LAW

CT-CT Confrontation

CA CRIMINAL PROCEDURE

CA-DU Due Process

CA-RT Right to Confrontation

CA-RV Revocation of Probation

CA-WT Witnesses

EV EVIDENCE

EV-HR Hearsay Evidence