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Norman McDaniels v State of Alaska (10/11/2019) ap-2658

Norman McDaniels v State of Alaska (10/11/2019) ap-2658


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                 303 K Street, Anchorage, Alaska  99501

                                            Fax:  (907) 264-0878

                                    E-mail:  corrections @



                                                                  Court of Appeals No. A-12614  

                                   Appellant,                   Trial Court No. 3PA-00-01813 CR  


                                                                             O P I N I O N  


                                   Appellee.                      No. 2658 - October 11, 2019  

                 Appeal  f                             

                             rom  the  Superior   Court,  Third  Judicial  District,  

                 Anchorage, Jack W. Smith, Judge.  

                 Appearances:          Mary   Fleming        Burnell,     Assistant     Public  


                 Defender, and Quinlan Steiner, Public Defender, Anchorage, for  


                 the Appellant.  Patricia L. Haines, Assistant Attorney General,  

                  Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  


                 Attorney General, Juneau, for the Appellee.  

                 Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior  



                 Judge HARBISON.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

----------------------- Page 2-----------------------

                                     Norman    McDaniels    appeals    the    revocation    of    his    probation.       At  

McDaniels's revocation hearing, a police officer testified that McDaniels had contacted                                                                                                                             

an individual, L.G., in violation of a protective order.                                                                                           The officer stated that he learned                                     

this information from a conversation with L.G., but the State did not call L.G. to testify                                                                                                                                   

and did not introduce any additional evidence supporting the officer's testimony.                                                                                                                                                  On  

appeal, McDaniels argues that it was error to allow the officer to testify about the hearsay                                                                                                                             

statements of a witness who was not present for McDaniels to confront and cross-                                                                                                                                             


                                     We agree.  Although it is well established that neither the Alaska Rules of  


Evidence nor the Confrontation Clause apply to probation revocation proceedings, it is                                                                                                                                                   

equally well established that defendants in probation revocation proceedings have a due                                                                                                                                           

process right to confront witnesses against them unless the State demonstrates that there  


is good cause to deny them that right.1  


                                                                                                            In this case, the superior court made no finding  


that there was good cause to deny McDaniels the right to confront L.G.  This was error.  


We  therefore  vacate  the  revocation  of  McDaniels's  probation.                                                                                                                        We  also  take  this  


opportunity to explain the test for determining the existence of "good cause."  


                  Factual and procedural background  


                                     McDaniels was on probation for first-degree sexual abuse of a minor.  In  


October 2015, the State filed a petition to revoke McDaniels's probation, alleging that  


he violated the terms of a domestic violence protective order by calling and texting L.G.  


(the person protected by the order).  The court held an evidentiary hearing to adjudicate  


the allegations in the petition.  

          1        Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973);                                                                               Morrissey v. Brewer , 408 U.S. 471,  

489 (1972).  

                                                                                                                - 2 -                                                                                                             2658

----------------------- Page 3-----------------------

                    The  State's  only  evidence  of  the  alleged  probation  violation  was  the  


testimony of the investigating police officer, who summarized the statements made by  


L.G. and the information the officer saw on L.G.'s telephone screen. L.G. did not testify  


at the adjudication hearing, and no photographs of the telephone screen were offered into  



                    McDaniels objected to the admission of the officer's hearsay testimony  


prior to the hearing.   In response to McDaniels's hearsay objection, the prosecutor  


pointed out that the rules of evidence do not apply to probation revocation proceedings.  


The prosecutor acknowledged, however, that there is a "generalized due process right  


to ensure that the evidence is reliable," and he suggested that the issue be revisited after  


the court had heard the evidence.  


                    The court agreed to revisit the issue after the evidence was presented.  But  


at the close of evidence, the court did not return to the issue, and defense counsel did not  


renew any hearsay or due process objection.  


                    After  the  hearing,  McDaniels  filed  a  "Motion  for  Reconsideration  of  


Court's Adjudication Finding."  In the motion, McDaniels argued that, absent a specific  


finding of good cause for not allowing confrontation, the right to confront and cross- 


examine adverse witnesses is a minimal due process right applicable to all probation and  


parole revocation proceedings. McDaniels contended that when the superior court relied  


on the hearsay statements of L.G. to find that he violated his probation, the court denied  


him this right without good cause for doing so.  


                    The court denied McDaniels's motion in a short written order stating that  


the rules of evidence were inapplicable to probation revocation hearings, that the police  


officer was credible, and that McDaniels had an opportunity to cross-examine the police  



                                                              -  3 -                                                         2658

----------------------- Page 4-----------------------

                                            In   this appeal, McDaniels contends that the superior                                                                                                                                  court improperly   

admitted and relied on hearsay statements in violation of his constitutional due process                                                                                                                                                                              

right to confront adverse witnesses. The State responds that McDaniels did not preserve                                                                                                                                                                            

his due process objection and that L.G.'s statements had sufficient indicia of reliability                                                                                                                                                                     

to satisfy the due process right to confrontation.                                                              

                      A   probationer   has   the   right   to   confront   and   cross-examine   adverse  

                      witnesses unless the judge specifically finds good cause for not allowing                                                                                                                                            

                      confrontation; McDaniels preserved this argument for appeal                                                                                                                             

                                            The due process right claimed by McDaniels -                                                                                                                     i.e., the right to confront                          

adverse witnesses in a probation revocation proceeding absent good cause to deny                                                                                                                                                                                             

confrontation - is clearly recognized by the United States Supreme Court.                                                                                                                                                                                 More than   

forty years ago, in                                        Morrissey v. Brewer                                                 , the Supreme Court established a set of minimum                                                                                

due process rights that apply in the context of parole hearings.                                                                                                                                            2  


                                                                                                                                                                                                                  And just one year later,  


in  Gagnon  v.  Scarpelli,  the  Supreme  Court  extended  these  same  requirements  to  



probation  revocation  hearings.                                                                                   These  rights  include,  among  others,  "the  right  to  


confront and cross-examine adverse witnesses (unless the hearing officer specifically  



finds good cause for not allowing confrontation)." 


                                             (We emphasize that this is a due process right.  It does not derive from the  


Confrontation Clause of either the United States or Alaska constitutions because the  



Confrontation  Clause  applies  only  to  "criminal  prosecutions,"                                                                                                                                                            and  "[a]  probation  

           2          Morrissey , 408 U.S. at 489.  

           3           Gagnon, 411 U.S. at 782.  

           4          Morrissey , 408 U.S. at 489.  

           5          U.S. Const. amend. VI; Alaska Const. art. I,  11; see also Blanks v. State, 137 A.3d  


                                                                                                                                        - 4 -                                                                                                                                    2658

----------------------- Page 5-----------------------


revocation hearing is not a criminal proceeding."                                      Nor is this right based on the Alaska               

Rules of Evidence, which also do not apply to probation revocation proceedings.                                                             7)  


                       There is also little dispute that McDaniels was denied this right in his case:  


he was never allowed to confront L.G., and the superior court never found that good  


cause existed to deny him his right to confrontation.  


                       But the State nevertheless argues that we should affirm the revocation of  


McDaniels's probation on the ground that McDaniels failed to preserve his due process  


argument for appeal.  We disagree.  



                       Topreservean issuefor appeal,anappellant mustobtain anadverseruling. 


Here, the parties agreed that the court would address McDaniels's due process concerns  


after testimony was presented.  This never occurred during the evidentiary hearing, at  


least  in  part  because  defense  counsel  failed  to  request  a  ruling  on  this  issue  after  


testimony was presented.  


                       But after the hearing, McDaniels filed a motion for reconsideration.  The  


motion asked the court to reconsider its adjudication finding and specifically argued that  


the court had denied him the due process right to confront adverse witnesses.  

      5     (...continued)  

1074, 1086 (Md. Spec. App. 2016) (noting that all of the federal circuit courts of appeal have  


concluded that the Confrontation Clause of the United States Constitution does not apply to  


probation revocation proceedings); Luch v. State , 413 P.3d 1224, 1235 (Alaska App. 2018)  

(declining to interpret the Confrontation Clause of the Alaska Constitution more broadlythan  


the federal constitution).  

      6     Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973).  

      7     Alaska Evid. R. 101(c)(2).  

      8    Mahan v. State , 51 P.3d 962, 966 (Alaska App. 2002).  

                                                                       - 5 -                                                                  2658

----------------------- Page 6-----------------------

                            We have held that "a court '[is] under no obligation to consider an issue                                                                 

raised for the first time in a motion for reconsideration' - and if the trial court decides                                                                             


not to address a newly raised issue, that issue can not be pursued on appeal."                                                                                                    

                                                                                                                                                                        But the  


due process issue was not raised for the first time in the motion for reconsideration.  


Rather, it was raised at the beginning of the revocation hearing, and the court agreed that  


it would address the issue after evidence had been presented. Furthermore, the superior  


court addressed the issue on the merits in its written order resolving McDaniels's motion  


for reconsideration.  McDaniels both raised and obtained an adverse ruling on his due  


process argument below.  Thus, we see no barrier to our consideration of this issue on  



                            Given our conclusions above - that a due process right to confrontation  


exists, that McDaniels was denied that right, and that McDaniels preserved this issue for  


appeal - we now vacate McDaniels's revocation.  On remand, the superior court shall  


allow the parties to litigate the alleged probation violations in light of the guidance  


provided by this opinion.  


               The analysis that should be used by trial courts to determine whether there  


              is good cause to dispense with the due process right to confrontation  


                            As we stated earlier, defendants in probation revocation proceedings have  


a due process right to confront witnesses against them unless the State demonstrates that  


there is good cause to deny them that right.  

       9      Cooper v. Dist. Court, 133 P.3d 692, 715-16 (Alaska App. 2006) (quoting Blackburn  

v. Dep't of Transp. & Pub. Facilities, 103 P.3d 900, 906 (Alaska 2004)).  

       10     See Mahan, 51 P.3d at 966 (citing examples of cases where, in contrast, "a defendant   

who chooses to proceed without demanding a ruling from the court waives the potential   

claim of error").  

                                                                                       -  6 -                                                                                 2658

----------------------- Page 7-----------------------

                      Until recently, the test for "good cause" was disputed at the federal circuit                                     



              Some federal courts applied the "reliability test," which "allows the admission  


of  hearsay  evidence  without  a  showing  of  cause  for  the  declarant's  absence  if  the  



evidence is sufficiently reliable." 


                       Other federal courts applied the "balancing test," requiring courts to weigh  


the probationer's interest in confrontation against the government's good cause for  



denying it - that is, the government's reasons for not producing the witness.                                                              The  


probationer's interest in confronting adverse witnesses turns on both the importance and  



the nature of the hearsay evidence (i.e., its reliability and accuracy).                                            The probationer's  


interest is highest when the hearsay statements at issue are crucial to the court's ultimate  



findings yet not demonstrably reliable. 


                      Under both approaches, the reliability oftheevidenceis an important factor  



in determining the strength of a releasee's confrontation right,                                                                   

                                                                                                           but under the reliability  



                                                                                                                                 Under the  

test, the reliability of the evidence is itself sufficient to deny confrontation. 

      11    United States v. Jones, 818 F.3d 1091, 1099 (10th Cir. 2016) (listing cases).  

      12    Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010); Kell v. U.S. Parole Comm'n,  

26 F.3d 1016, 1020 (10th Cir. 1994).  

      13   E.g., United States v. Comito, 177 F.3d 1166, 1170-73 (9th Cir. 1999); United States  

v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994).  

      14    Comito, 177 F.3d at 1171.  

      15   Id.  

      16    Curtis, 626 F.3d at 546.  

      17   Id.  

                                                                     -  7 -                                                                2658

----------------------- Page 8-----------------------

balancing test, by contrast, the State must explain why the witness cannot testify (                                                  i.e., the   

"good cause" to deny confrontation).                           18  


                       The State asserts that there continues to be a federal circuit split about  


which test to apply. But in 2002, Federal Rule of Criminal Procedure 32.1(b)(2)(C) was  


amended to state that a person subject to a revocation hearing is entitled to question  


adverse witnesses "unless the court determines that the interest of justice does not require  



the witness to appear."                    Courts have interpreted this rule change as an endorsement of  


the balancing test and, as a result all federal circuit courts now analyze the existence of  



good cause using the balancing test. 


                       Because this is an issue of first impression in Alaska and there is no statute  


to guide us, we must employ our common-law power to declare the law in the absence  



                                             Adopting "the rule of law that is most persuasive in light of  

of a statutory directive. 



precedent, reason, and policy,"                                                                                                        

                                                        we conclude that Alaska courts should follow federal  


courts and apply the balancing test to determine whether good cause exists.  In other  


words, Alaska courts should weigh the probationer's right to confrontation against the  


government's reasons for not producing the witness.  

      18    Comito, 177 F.3d at 1171-73 (citing   United States v. Martin, 984 F.2d 308, 310-11  

(9th Cir. 1993)).  But see United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009) (adopting   

the balancing test but noting that in some cases, a "releasee's interest in confrontation may  

be overwhelmed by the hearsay's reliability such that the [State] need not show cause").  

      19   Fed. R. Crim. P. 32.1(b)(2)(C).  

      20    United States v. Jones, 818 F.3d 1091, 1099 (10th Cir. 2016) ("join[ing] the other  


circuits  and  conclud[ing]  the  balancing  test  applies  when  determining  a  releasee's  


confrontation rights at a revocation hearing").  

      21   Edwards v. State, 34 P.3d 962, 968 (Alaska App. 2001).  

      22   Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).  

                                                                     -  8 -                                                                2658

----------------------- Page 9-----------------------

                    We emphasize that the reliability of the evidence is still an important factor  


in determining the strength of a probationer's interest in confrontation. But we conclude  


that, in addition to evaluating the reliability of the evidence, the trial court should also  


evaluate the State's explanation for why producing live testimony is undesirable or  


impractical.   Before dispensing with the accused's right to confrontation, the court  


should make a clear finding of whether there is good cause to deny this right and should  


articulate the basis for its finding.  



                    For the reasons explained in this opinion, we VACATE the revocation of  


McDaniels's  probation  and  REMAND  this  case  to  the  superior  court  for  further  


proceedings consistent with this decision.  


                                                              -  9 -                                                         2658

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