Opinion of the Court by Chief Justice MINTON.
We granted discretionary review of these two probation revocation cases to consider whether the trial court may proceed to hold evidentiary hearings to revoke or modify probation when the grounds for
Gerald Barker's felony conviction is based upon his guilty plea to nine counts of fraudulent use of a credit card over $100, one count of first-degree possession of a controlled substance, and one count of possession of drug paraphernalia. Barker received a sentence of five years' probation. Before the expiration of the period of probation, the Commonwealth moved to revoke probation because Barker received new criminal charges.
Ryan Jones pled guilty to trafficking in a controlled substance in the first-degree (first offense), tampering with physical evidence, possession of marijuana, and possession of drug paraphernalia (first offense) and received a sentence of seven years' imprisonment, probated for five years. Before the expiration of the period of probation, the Commonwealth moved to revoke probation because Jones received new criminal charges.
At Barker's probation revocation hearing, his counsel argued that probation revocation proceedings were premature because Barker merely incurred new charges, not new convictions. But the trial court proceeded to hear and decide the revocation motion.
At the revocation hearing, Barker's assigned probation officer was the only witness called by either side. The officer's testimony recited the contents of a written special supervision report she submitted earlier to alert the trial court of Barker's arrest on new charges, which consisted of four counts of fourth-degree assault. The source of the officer's information on these assaults was (1) the citation issued to Barker by the Kentucky State Police documenting Barker's arrest on these new charges and (2) a conversation between the officer and Barker's sister, who told the officer that she was afraid of Barker and did not want him to return to the family home.
Barker made two arguments opposing revocation: (1) the absence of physical evidence showing conclusively that he violated the conditions of his probation and (2) no probation violation occurred without a
Jones's probation officer submitted a special supervision report to the trial court requesting a bench warrant for Jones's arrest and revocation of Jones's probation because of Jones's indictment on new charges of possession of a controlled substance. Before the probation revocation hearing, Jones's counsel sought postponement, arguing that the same facts asserted as grounds for probation revocation were also the basis for the new indictment. The trial court denied this requested postponement.
At the probation revocation hearing, Jones's probation officer testified that he received information from the police that witnesses reported seeing Jones shoot a gun near his residence. The probation officer accompanied a group of police officers to Jones's aunt's residence where Jones lived. They encountered there a male, Justin Valentine, and two females on the front porch. One of the officers detected an odor of marijuana, and the three individuals were taken into custody. Jones was not there at the time.
Jones's aunt admitted the officers into the house and showed them the basement where Valentine and Jones shared living quarters. Plainly visible on top of a dresser within these quarters were marijuana stems and seeds. A search of the living quarters ensued, yielding digital scales, fifty dollars in cash, marijuana in plastic bags, a white powdery residue on the surface of a tray, and marijuana in the pockets of various articles of clothing.
When Jones arrived home, he was immediately taken into custody and questioned about his knowledge of the drugs. He denied any knowledge of the drugs. But he stated that he could not pass a drug test because he smoked marijuana the previous day. The indictment followed.
Jones elected to remain silent at the probation revocation hearing. But he did attempt a defense by presenting testimony from witnesses, including his aunt and Valentine. At the close of the hearing, the trial court made oral findings, appearing on video record, that Jones violated the conditions of probation. Later, the trial court issued a written order revoking Jones's probation. Holding that Jones was entitled to limited immunity in later prosecution for any testimony he might give in the revocation hearing, the Court of Appeals reversed the trial court's revocation order and remanded the case to the trial court for further proceedings consistent with the holding of the Court of Appeals.
On review in this Court, Barker argues that the trial court improperly considered his arrest on new felony charges as the sole basis for revoking his probation because he had not been convicted on those new felony charges. Jones claims the trial court erred by failing to postpone his probation revocation hearing until after the resolution of his new charges. Additionally, Jones argues that the timing of his probation revocation hearing erroneously forced him to choose between asserting his right against self-incrimination on the new felony charge and presenting a complete and meaningful defense to probation revocation.
So, in Barker's case, we affirm the opinion of the Court of Appeals because, under the circumstances, the fact that the trial court did not inform Barker that he could testify at his own probation revocation hearing with limited immunity did not affect his substantial rights or result in a manifest injustice. In Jones's case, we also affirm the Court of Appeals on different grounds and remand Jones's case to the trial court for proceedings consistent with this opinion.
The Fifth Amendment to the United States Constitution provides that no person shall "be deprived of life, liberty, or property, without due process of law...." And this Amendment is applicable to our state through the Fourteenth Amendment
In Morrissey v. Brewer,
Shortly after Morrissey, the U.S. Supreme Court decided Gagnon v. Scarpelli.
Kentucky precedent has recognized that the minimum level of due process described in parole revocation proceedings in Morrissey applied equally to probation revocations through Gagnon and must be afforded to probationers in Kentucky.
In Barker's case, the Court of Appeals relied on Tiryung v. Commonwealth
We agree with the holding in Tiryung.
Probation has dual goals, protection of the public and rehabilitation of the offender.
KRS 533.050 provides, in pertinent part, that "the court may not revoke or modify the conditions of a sentence of probation... except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification." But this statute does not control the timing of the probation revocation hearing. So, for guidance
KRS 533.030(1) states that "[t]he court shall provide as an explicit condition of every sentence to probation or conditional discharge that the defendant not commit another offense during the period for which the sentence remains subject to revocation." The accompanying 1974 Kentucky Crime Commission/LRC Commentary notes, "The last sentence of subsection (1) is added so that there can exist no doubt but that commission of another offense while probation or conditional discharge exists is reason for revocation of such a sentence."
To sustain a criminal conviction requires proof beyond a reasonable doubt. By contrast, "[probation revocation requires proof by a preponderance of the evidence that a violation has occurred."
Consequently, we hold that Tiryung remains good law. An individual's probation may be revoked any time before the expiration of the probationary period when the trial court is satisfied by a preponderance of the evidence presented in a revocation hearing that the probationer violated a condition of probation. Although new charges may form the basis for revocation proceedings, a conviction on those charges is not necessary in order to revoke probation.
In Morrissey, the United States Supreme Court confirmed the probationer's right to be heard to promote intelligent and fair revocation decisions and to encourage rehabilitation by treating probationers with basic fairness.
Both Barker and Jones claim the fact that their probation revocation hearings occurred before the trial of their related criminal charges impermissibly forced them to choose between self-incrimination and presenting a complete defense. The Court of Appeals panel that considered this issue in Jones's case held that basic fairness entitles a probationer to some Fifth Amendment protections in a probation revocation hearing in which the grounds for revocation are the same substantive facts as those of a new criminal charge. Although we do not reach the determinative constitutional issue as did the Court of Appeals, we do find that probationers who choose to testify at the revocation hearing are entitled to a modified privilege against self-incrimination in the form of an exclusionary rule.
The Fifth Amendment of the United States Constitution, applicable to Kentucky through the Fourteenth Amendment and Section 11 of the Kentucky Constitution, describe the right against self-incrimination. But this is not an absolute right. The right is protected before and at trial.
The United States Supreme Court decision that remains the starting point for consideration of Fifth Amendment privileges in post-conviction proceedings is Minnesota v. Murphy.
In Murphy, the U.S. Supreme Court held that a probationer does not lose his Fifth Amendment privilege against self-incrimination because he has been convicted of an offense; but a state may compel a probationer to appear and be truthful in all matters that affect his probationary status.
As recently as Gamble v. Commonwealth,
While we agree that a probationer is afforded some protections when the charges against him form the basis for probation revocation and new criminal charges, we do not need to determine whether the Fifth Amendment right against self-incrimination extends to this situation.
There is a federal circuit split about what is required by the federal constitution when a parolee or probationer faces revocation for actions that also form
A probationer who chooses to testify at his probation revocation hearing exposes himself to revelations of evidence that could be used in a later criminal prosecution. A truthful answer or tendered explanation by a probationer at a revocation hearing might make him more vulnerable in the later trial. But by choosing not to be heard at the revocation hearing, the probationer loses the ability to defend himself or mitigate the penalty before the trial court considering modifying or revoking probation. Without qualified protections, the probationer confronts a considerable dilemma, a decision between remaining silent and presenting a defense to revocation.
The Alaska Supreme Court considered this issue under similar circumstances. In McCracken v. Corey,
The Alaska court determined that:
Consequently, the McCracken court adopted what is commonly known as the "use immunity" or "derivative use immunity" rule.
In recognizing a constitutional right against self-incrimination at a revocation hearing, the Florida Supreme Court has considered the same issue and held
Although we do not share the Florida Supreme Court's view that the probationer's testimony is protected by the federal constitution, we believe this statement describes an appropriate exclusionary rule that protects against self-incrimination in post-conviction proceedings.
In accord with our reading of Murphy and our interpretation of Section 11 of the Kentucky Constitution,
Barker requested that the revoking court postpone his probation revocation hearing until after resolution of the new criminal charges. But Barker did not specifically request immunity or attempt to invoke his right against self-incrimination. So we review this matter for palpable error.
Jones requested and was denied immunity for testimony before the revoking court. So we affirm the decision of the Court of Appeals that a "probationer's testimony at a probation revocation hearing cannot be used substantively against him at a subsequent criminal proceeding arising from the same facts." This matter is remanded for further proceedings consistent with the opinion.
Barker claims that he was prevented from effectively cross-examining the Commonwealth's witness against him because the testimony against him was hearsay. As previously stated, probation revocation hearings are not criminal proceedings but flexible hearings that accept matters into evidence otherwise inadmissible in a criminal prosecution.
In Barker's case, the hearsay evidence presented against Barker was a Uniform Citation from the Kentucky State Police that described alleged assaults Barker committed against his family. Barker's probation officer was not present at the time of his arrest but read the citation at his probation revocation hearing.
Barker claims his due process rights were violated when the trial court did not provide a sufficient written statement detailing the evidence relied on and reasons for revoking probation. He further requests that this Court reconsider its holding in Commonwealth v. Alleman.
Due process requires that the factfinder issue a written statement detailing the evidence relied on and reason for revoking probation.
After a hearing, at which Barker was represented by counsel, the trial court made oral findings that he violated the terms of his probation and returned him to imprisonment. These oral findings are recorded on the videotape of the revocation proceedings in open court. The trial court's written findings followed, saying:
The written findings state that the testimony at the hearing led to a conclusion that Barker violated his probation. These written findings are sparse. But the trial court's recorded oral findings state, "The fact he had been drinking and he assaulted four family members ... would be a violation of the conditions of his probation. For that reason, the court finds that he has violated the conditions of his probation." In Alleman, this Court held that oral findings and reasons for revocation stated at the conclusion of the hearing by the trial court from the bench satisfy due process rights when they are sufficiently reliable for a reviewing court to determine the justifications for revocation.
For the foregoing reasons, the decisions of the Court of Appeals are hereby affirmed in both cases.
CUNNINGHAM, J., concurs in result only by separate opinion in which SCHRODER and SCOTT, JJ., join.
CUNNINGHAM, J., Concurring in Result Only.
First of all, I concur with the majority that, in both Barker and Jones, the trial court did not have to wait upon a conviction for new charges before proceeding to a hearing and revocation of probation based upon the commission of additional offenses. I furthermore agree in the result of our decision to uphold the revocation of Barker's probation, but I disagree with the reasoning. By implication in Barker, and by direct holding in Jones, this Court — for the first time to my knowledge — invests the courts with the prosecutorial function of immunity for criminal defendants.
I respectfully, but strongly, disagree from that part of the majority opinion which establishes use immunity' for defendants in revocation hearings. I dissent on three grounds: (1) to invoke our supervisory power to establish a new rule of evidence and procedure invades the rule-making procedure of this Court; (2) to do so is a violation of our separation of powers and blatantly against our state constitution; and (3) the issue at hand is of insufficient importance to the criminal defendant to merit such an extraordinary action by this Court.
Unable to find ample authority under Fifth Amendment cases, the majority goes searching for another way to reach the intended aim. We choose to do this through the misapplication of the "supervisory power" of our Court.
Our majority reference Sections 110, 115, and 116 of our state constitution "in conjunction" as the source for our authority to do what it wants done in this case. With all due respect, I find nothing in Section 115 that is germane to the discussion of our "supervisory power." It deals only with the rights to appeal. We must then turn to the other two sections cited.
Section 110(2)(a) of our constitution states as follows:
Any "supervisory power" granted under this section is obviously for the administration of our Court of Justice. The words "control" and "administration" are practically interchangeable. There is no way to read this constitutional provision to authorize us to invade the procedural or evidentiary working of criminal trials.
Therefore, I am left to assume that the majority's use of "supervisory power" of the Court is rooted solely in Section 116 — the Court's rule-making authority. Section 116 of our state constitution states:
It's critical to point out that this constitutional mandate does not authorize us to fulfill this purpose through "orders" or "opinions," but by rules. We do it here
The majority cites no previous holding by this Court to support its wide-ranging rule. It simply draws from the writing of Justice Leibson in his dissent in Commonwealth v. Hubbard, 777 S.W.2d 882 (Ky. 1989). I draw from his writing also to support this dissent. His writing, in Hubbard, deals with two issues. The first one in which he beckons the use of "supervisory power" deals with whether private attorneys should be allowed to prosecute crimes in the courts of our Commonwealth. It has nothing to do with a procedural or evidentiary ruling, but simply who should be allowed to prosecute criminal cases in our courts. Justice Leibson criticizes the majority as to the second issue, however, where it allows judges to impose the sentence where juries are deadlocked. He states that to do so is outside of its authority and, by implication at least, outside its "supervisory power."
Hubbard at 887.
After our "precipitous" ruling here today, we no longer need the ponderous, labor intensive and time-consuming procedure of establishing our Rules of Criminal Procedure, Rules of Civil Procedure, or Rules of Evidence. We may from this day forth simply issue them under our "supervisory power."
The adoption of use immunity by this Court in probation revocation hearings is a monumental sea change for prosecutors of this state. They deserve to be heard.
Our Court today declares:
For the very first time in the history of the Commonwealth, to my knowledge, the judge is now ordered to step down from the bench and take on a prosecutorial function — offering use immunity.
Our state constitution — often maligned but still obeyed — is much more explicit about the value of the separation of powers in democratic government than its federal counterpart. Two separate provisions drive the principle home.
First is Section 27:
The U.S. Constitution has no comparable provision. Neither, for that matter, does Alaska, a state which provides the majority its main case for support and inspiration.
This Court has repeatedly paid judicial homage to this revered division of authority in a string of cases driving the point home. Flynt v. Commonwealth, 105 S.W.3d 415 (Ky.2003); Hoskins v. Maricle, 150 S.W.3d 1 (Ky.2004); Gibson v. Commonwealth, 291 S.W.3d 686 (Ky.2009).
Immunity from prosecution and the basis for prosecution is strictly an executive action and may be granted by the government in exchange for a person's testimony. BLACK'S LAW DICTIONARY 819 (9th ed.2009) defines "use immunity" as "[i]mmunity from the use of the compelled testimony... in a future prosecution against the witness."
Courts do not have jurisdiction over what the executive branch does in terms of whom and how to prosecute. They only have jurisdiction over criminal charges properly brought before them by way of warrant or indictment. That jurisdiction exists, for instance, in the case of the defendant's right to limited cross-examination in suppression hearings. Shull v. Commonwealth, 475 S.W.2d 469 (Ky.App. 1971). In such cases, the defendant can take the stand to contest the validity of a search without being subjected to cross-examination on the principal charge. This, however, is a Fifth Amendment and Section 10 issue — or maybe even a relevancy matter. It is not immunity.
There is federal statutory authorization for prosecutors to grant immunity to witnesses who refuse to testify. 18 U.S.C.A. § 6003. The federal courts have done heavy duty in keeping the trial judges out of the immunity business. There is a long line of cases proclaiming that courts cannot confer immunity upon a witness on their own initiative. U.S. v. D'Apice, 664 F.2d 75 (5th Cir.1981); In re Corrugated Container Antitrust Litigation, 644 F.2d 70 (2nd Cir.1981); U.S. v. Davis, 623 F.2d 188 (1st Cir.1980);' U.S. v. Smith, 542 F.2d 711 (7th Cir.1976); Thompson v. Garrison, 516 F.2d 986 (4th Cir.1975).
We operate under the cherished notion that a defendant is presumed innocent until proven guilty. In pursuit of that idea, we have cloaked the criminal defendant with a wide array of constitutional and statutory rights, which hopefully minimizes or eliminates the possibility of an innocent person being convicted. There is a line, however, between the rights of defendants and the protection of the public. In spite of the notion harbored by many, a defendant's right against self-incrimination is not woven into the whole cloth of due process. Even under the broad and liberal Fifth Amendment holdings of the U.S. Supreme Court, this constitutional right does not make a stop at every procedural crossroad. Braswell v. U.S., 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); U.S. v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Bellis v. U.S., 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
With all due respect, in the decision today this Court legislates. We do not enforce an existing right for the defendant. We create a new one out of the whole cloth under our "supervisory power."
The majority boldly states:
In establishing our own new "exclusionary rule" out of our "supervisory-power," we not only step across the line of the separation of powers, but we create a new right for the defendant at the expense of the people of Kentucky.
It is mystifying as to why the majority wishes to run so far out of the base line for a ruling in which the defendant — in the regular course of things — does not have that much at stake. In 98% of the revocation hearings where the defendant takes the stand, he or she simply denies any wrongdoing or offers mitigating evidence. By the nature of testifying in their own defense, defendants do not incriminate themselves. In all my years presiding over these proceedings, I do not recall one withering cross-examination where the defendant broke down and offered incriminating evidence of another crime. However, in the very small percentage of cases where that might happen, the evidence could be critical to the Commonwealth in obtaining a conviction of a serious crime.
Lastly, there is another disturbing consequence of the majority opinion which I cannot abide. Our ruling here today blocks Kentucky prosecutors from ever using valuable evidence in the prosecution of serious crimes which might have been elicited from convicted felons testifying voluntarily, and with the aid of counsel, at revocation hearings. But the prosecutors just across the state line in Stewart County, Tennessee will not be so impaired. Such a ruling places our people in Kentucky with less protection than that which is afforded in 49 other states in the Union.
I have an unsettling feeling that somewhere down the line — maybe next year, maybe ten years from now — this decision will come back to haunt us. It will be used to protect a murderer from prosecution and conviction. Or it will be used by this Court to make another evidentiary and procedural ruling based on our "supervisory power" without the appropriate rulemaking procedure.
I vote to affirm in Barker and reverse in Jones and uphold the trial court's decisions in both.
SCHRODER and SCOTT, JJ., join.
