NO. COA05-1447
Appeal by defendant from judgments entered 8 August 2005 by
Judge Michael E. Helms in Rockingham County Superior Court. Heard
in the Court of Appeals 19 June 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Richard Moore, for the State.
Bruce T. Cunningham, Jr., for defendant appellant.
McCULLOUGH, Judge.
Defendant Daniel King appeals from the revocation of his
probation. Based on our review of the record, we hold the trial
court did not err and, therefore, we affirm.
FACTS
On 27 May 2004, defendant pled guilty to four counts of
indecent liberties with a minor. The trial court sentenced
defendant to four consecutive sentences of fourteen to seventeen
months' imprisonment, suspended the sentences, and placed defendant
on thirty months' supervised probation for each offense.
Defendant
was placed in the sex offender control program under special
conditions of his probation.
On 16 June 2005, defendant's probation officer, Thomas E.Grant, Jr., filed four probation violation reports. Officer Grant
alleged that defendant engaged in the following conduct in
violation of the conditions of his probation: (1) was alone with a
minor child under the age of eighteen years old without any adult
supervision; (2) engaged in “sexual behavior” with a minor child
under the age of eighteen years old; and (3) engaged in “sexual
behavior” with a former victim. All four reports alleged
violations (1) and (2) and three of the reports alleged violation
(3).
A probation violation hearing was held on 7 August 2005, in
Rockingham County Superior Court. At the beginning of the hearing,
the trial court asked defense counsel whether defendant admitted or
denied the violations as alleged in the violation reports. Defense
counsel stated, “Your Honor, we would admit the violation but deny
the willfulness.” The trial court then read the violation reports
into the record.
Officer Grant, the probation officer assigned to supervise
defendant's probation, testified that defendant took a polygraph
test on 15 June 2005, as part of his required treatment under the
terms of his probation. During the polygraph examination,
defendant admitted having sexual intercourse with a seventeen-year-
old female within ten days of taking the polygraph test. Steve
Coats, the polygraph examiner, communicated this information to
Officer Grant. Officer Grant also spoke with the female and
learned she was actually sixteen years old. The female's mother
confirmed her daughter was only sixteen years old.
The trail courtfound that defendant willfully violated probation conditions (1)
and (2) and that each was a basis for revocation of defendant's
four convicted offenses. Defendant now appeals.
ANALYSIS
I.
Defendant first contends his constitutional due process rights
to an impartial judge were violated because the trial judge, rather
than the district attorney, questioned State witness Officer Grant
at the probation violation hearing. Probation revocation
proceedings are “often regarded as informal or summary” because
“probation or suspension of sentence is an act of grace and not of
right.”
State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 57
(1967). “'[T]he rights of an offender in a proceeding to revoke his
conditional liberty under probation or parole are not coextensive
with the federal constitutional rights of one accused in a criminal
prosecution.'”
Id. at 246, 154 S.E.2d at 58 (citation omitted). A
revocation of probation proceeding is not a criminal prosecution
and no formal trial is required.
Id. at 245, 154 S.E.2d at 57.
Here, defendant argues the trial judge's questioning of
Officer Grant creates the appearance of bias and entitles defendant
to a new probation violation hearing to protect his due process
rights. The State argues the questions asked by the trial court
constituted a legitimate inquiry into the facts alleged in Officer
Grant's reports. We agree with the State.
Indeed, trial judges have the discretion to examine witnesses
even in a formal setting where a case is being tried before a jury.
State v. Colson, 274 N.C. 295, 308, 163 S.E.2d 376 (1968) (stating
“'[j]udges do not preside over the courts as moderators, but as
essential and active factors or agencies in the due and orderly
administration of justice. It is entirely proper, and sometimes
necessary, that they ask questions of a witness so that the “truth,
the whole truth, and nothing but the truth” be laid before the
jury.'”) (citation omitted),
cert. denied, 393 U.S. 1087, 21 L. Ed.
2d 780 (1969). Here, in the informal setting of a probation
violation hearing, it was entirely proper for the trial judge to
examine Officer Grant. This assignment of error is without merit.
II.
Defendant next contends that the trial court failed to make
adequate findings as to his probation violations. The gravamen of
defendant's argument on appeal is that there was insufficient
evidence to show he
willfully violated conditions of his probation.
To the extent defendant attempts to argue that the trial court
failed to make adequate findings, defendant did not assign error to
this alleged failure and, thus, did not preserve this issue for
appellate review.
See State v. Worrell, 119 N.C. App. 592, 594, 459
S.E.2d 63, 64,
disc. review denied, 341 N.C. 656, 462 S.E.2d 525
(1995); N.C.R. App. P. 10(a) (“The scope of review on appeal is
limited to those issues presented by assignment of error in the
record on appeal.”).
This Court has stated:
Any violation of a valid condition of
probation is sufficient to revoke defendant's
probation. All that is required to revokeprobation is evidence satisfying the trial
court in its discretion that the defendant
violated a valid condition of probation
without lawful excuse. The burden is on
defendant to present competent evidence of his
inability to comply with the conditions of
probation; and that otherwise, evidence of
defendant's failure to comply may justify a
finding that defendant's failure to comply was
wilful or without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)
(citations omitted).
Here, Officer Grant's written reports of defendant's
violations of conditions of his probation were admissible in
evidence.
State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846
(1998),
aff'd in part, review dismissed in part, 350 N.C. 302, 512
S.E.2d 424 (1999);
see also State v. Dement, 42 N.C. App. 254, 255,
255 S.E.2d 793, 794 (1979) (“Sufficient evidence was presented in
the verified and uncontradicted violation report served upon the
defendant to support the trial court's findings and conclusions.”).
Thus, there was competent evidence in the record to support the
trial court's conclusion that defendant violated conditions of his
probation.
Once the State presented evidence that defendant had violated
conditions of his probation, the burden shifted to defendant to
show excuse or lack of willfulness.
State v. Crouch, 74 N.C. App.
565, 567, 328 S.E.2d 833, 834-35 (1985). If a defendant fails to
carry this burden, evidence of failure to comply with probation
conditions may justify a finding that the violation was willful or
without lawful excuse.
Id. Here, defendant admitted he violatedconditions of his probation, but offered no evidence to explain or
to excuse his probation violations. Because defendant presented no
evidence showing excuse or lack of willfulness as to the probation
violations set forth in the probation violation reports, he failed
to carry his burden. Thus, we conclude there was competent
evidence in the record to support the trial court's conclusion that
defendant willfully violated conditions of his probation.
Therefore, this assignment of error is overruled.
III.
Finally, defendant contends his constitutional right of
confrontation was violated because Officer Grant testified about
statements made by third parties, citing N.C. Gen. Stat.
§ 15A-1345(e) (At a probation revocation hearing, the probationer
“may present relevant information, and may confront and
cross-examine adverse witnesses unless the court finds good cause
for not allowing confrontation.”). This Court has concluded,
however, that N.C. Gen. Stat. § 15A-1345 does not require that the
State produce a witness for examination by a defendant in a
probation revocation hearing.
In
State v. Terry, 149 N.C. App. 434, 436-37, 562 S.E.2d 537,
539 (2002), the probation officer testified about his conversations
with the defendant's professor regarding her class schedule. In
rejecting the defendant's argument that she was denied her
constitutional and statutory right to cross-examine the professor,
this Court first pointed out that “proceedings to revoke probation
are informal in nature such that the trial court is not bound bythe strict rules of evidence.”
Id. at 437, 562 S.E.2d at 540. This
Court then observed that the information from the professor merely
confirmed other evidence presented, and the defendant had not
requested that the professor be subpoenaed.
Id. at 438, 562 S.E.2d
at 540. Similarly, in
State v. Gamble, 50 N.C. App. 658, 274
S.E.2d 874 (1981), the defendant contended he was denied the right
to cross-examine adverse witnesses when the State presented no
witnesses, but rather, merely read the probation violation report
into the record.
Id. at 662, 274 S.E.2d at 877. This Court found
no violation of the defendant's rights, reasoning: “[t]he State
presented no witnesses against the defendant, and defendant failed
to request that he be allowed to examine his probation officer or
anyone else. . . . We thus overrule defendant's assignment of error
here.”
Id.
In the instant case, defendant was allowed the opportunity to
cross-examine Officer Grant about defendant's probation violations
and did so at the hearing. As in
Terry, the information about
which Officer Grant testified merely confirmed that defendant
violated the conditions of his probation, which had already been
admitted by defendant through his counsel. Further, the record
contains no indication that defendant sought to have Mr. Coats, the
minor female, or the minor female's mother subpoenaed. In light of
Terry and
Gamble, we conclude defendant has failed to demonstrate
that his right to cross-examine and confront adverse witnesses was
violated.
Assuming,
arguendo, the trial court erred in allowing OfficerGrant to testify about hearsay statements, any such error was not
prejudicial to defendant because Officer Grant's testimony was not
necessary to support the trial court's conclusion that defendant
willfully violated conditions of his probation. As stated above,
defendant admitted he violated conditions of his probation and,
thereafter, failed to present any evidence showing excuse or lack
of willfulness as to the probation violations set forth in Officer
Grant's reports. Therefore, this assignment of error is overruled.
Accordingly, we conclude the trial court did not abuse its
discretion in revoking defendant's probation and, thus, we find
No prejudicial error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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