753989MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 75398-9
Title of Case: State of Washington, Respondent v. Khatib
Abd-Rahmaan, Petitioner.
File Date: 05/12/2005
Oral Argument Date: 02/17/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Mary I Yu


JUSTICES
--------
Authored by Charles W. Johnson
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Carla Barbieri Carlstrom
King Co Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2390

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, )
)
v. ) No. 75398-9
)
KHATIB M. ABD-RAHMAAN, ) En Banc
)
Petitioner. )
) Filed May 12, 2005

C. Johnson, J.--This case involves the issue of the admissibility of
hearsay statements of unavailable witnesses in a sentencing modification
hearing. Petitioner Khatib Abd-Rahmaan argues that the United States
Supreme Court ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), applies here and requires the exclusion of
hearsay evidence because Abd-Rahmaan did not have a prior opportunity to
cross-examine the witnesses. In the alternative, Abd-Rahmaan argues the
trial court erred in admitting hearsay evidence without making specific
findings of good cause. We hold that Crawford does not apply here. Though
we agree with the analytical framework employed
by the Court of Appeals, we do not find the record made by the trial court
sufficient to establish good cause to admit the hearsay evidence.
Therefore, we reverse the decision of the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In June 1999, Abd-Rahmaan pleaded guilty pursuant to an Alford plea1
to delivery of cocaine. Clerk's Papers (CP) at 7-15. Adb-Rahmaan was
sentenced to 38 months in custody and 12 months community placement. CP at
23.
In January 2003, the State sought to modify Abd-Rahmaan's sentence,
alleging violations of three conditions of his community placement: (1)
that Abd-Rahmaan failed to report to his community corrections officer
(CCO), (2) that Abd-Rahmaan failed to provide truthful answers to a
polygraph test, and (3) that Abd-Rahmaan consumed a controlled substance.
Verbatim Report of Proceedings (VRP) at 2. At the sentence modification
hearing, the State conceded that there was no order for the polygraph test
in the judgment and sentence, and the court found nothing to support the
allegation that Abd-Rahmaan consumed a controlled substance. Regarding the
allegation that Abd-Rahmaan failed to report, the trial court heard
testimony from Chris Salatka, Abd-Rahmaan's CCO. Salatka stated:
Mr. Abd-Rahmaan was instructed to report on all days he does not work at
the Millionaires' {sic} Club. When I discovered, after he took his
polygraph, he disclosed what he had been doing or had not been doing. I
followed up at the Millionaires' {sic} Club. They reported to me that he
had not been working on the days that I have listed on December 4th, 10th,
11th, the 12th and 13th . . ..

He was terminated from the Federal Express on the first day he was working
for them. And the reason why he was terminated was because they claimed he
was dropping products. And he was, I guess he was. It was his job to
carry the expensive boxes of alcohol, and he dropped several boxes. So
they requested of him to leave. And at that time Mr. Abd-Rahmaan,
according to this particular person at Federal Express, accused him of
making threatening and intimidating gestures. They told him they felt
unsafe and wanted him out of there. Now, when I followed up with what
happened, after the polygraph, the Millionaires' {sic} Club reported to me
that he was not allowed to work through the service of the Millionaires'
{sic} Club because of what he did at the Federal Express. And, in
addition, because Mr. Abd-Rahmaan did not disclose his status.

VRP at 5-6, 9-10. The court overruled Abd-Rahmaan's objection to these
statements as unreliable hearsay, but did not specifically state the
reasons for admitting the hearsay evidence. VRP at 10. Abd-Rahmaan was
then given an opportunity to present his version of the events. After
hearing both accounts, the trial court found that Abd-Rahmaan violated the
conditions of his sentence by failing to report to his CCO and ordered 60
days of confinement.
On appeal, Division One of the Court of Appeals addressed whether the
right to confrontation necessitates a specific written finding that hearsay
evidence is reliable.2 State v. Abd-Rahmaan, 120 Wn. App. 284, 84 P.3d 944
(2004). That court found sentence modification hearings to be
substantially similar to other revocation hearings, requiring the minimum
due process protections articulated in Morrissey v. Brewer, 408 U.S. 471,
92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Finding that Morrissey does not
provide an absolute right to confrontation, the Court of Appeals held that
hearsay evidence is admissible in a sentence modification hearing where the
hearsay is reliable and where there is good cause to allow it. The court
found the testimony provided by the CCO regarding Abd-Rahmaan's employment
status presented adequate indicia of reliability based on the detailed
accounts of Abd-Rahmaan's employment given to the CCO by the Millionair
Club and Federal Express. In further assessing the reliability of the
hearsay statements, the court found it persuasive that Abd-Rahmaan
participated in the hearing, was able to give his version of the events,
and had the opportunity to call witnesses to rebut the CCO's testimony and
present corroborative evidence had he wished to do so. Additionally, the
Court of Appeals held the trial court had good cause to allow the hearsay
evidence, inferring that there was difficulty and expense in providing the
live witnesses. While the Court of Appeals noted that it preferred trial
courts to make specific, written findings regarding the reliability of the
evidence and the difficulty or expense of presenting live witnesses, it
found the trial court record sufficient to understand the reasons for
admitting the hearsay evidence.
After Abd-Rahmaan's motion for reconsideration was denied in the Court
of Appeals, we granted limited review to determine whether the trial court
erred in admitting the hearsay evidence.
ANALYSIS
Conceding that probationers do not have the same due process protections as
criminal defendants, Abd-Rahmaan contends that on the basis of the United
States Supreme Court decision in Crawford, cross-examination is the only
permissible means of assessing the reliability of hearsay evidence.
Because the due process required at a parole revocation hearing or
sentencing modification hearing parallels the Sixth Amendment right to
confrontation, Abd-Rahmaan argues the requirements set forth in Crawford
should be applied in those settings. Alternatively, if we find that
Crawford does not apply here, Abd-Rahmaan argues the trial court erred in
admitting the hearsay because there was no finding of the reliability of
the hearsay evidence or good cause to admit it.
The seminal case involving an individual's due process rights at a
parole revocation hearing is the United States Supreme Court decision in
Morrissey. In that case, the Court addressed 'whether the Due Process
Clause of the Fourteenth Amendment requires that a State afford an
individual some opportunity to be heard 'before' revoking his parole'.
Morrissey, 408 U.S. at 472. Beginning with the assumption that the
revocation of parole is not part of a criminal prosecution and recognizing
that an individual is not guaranteed the 'full panoply of rights' due in
that setting, Morrissey, 408 U.S. at 480, the Court found that the
Fourteenth Amendment guarantees minimum due process requirements because
parole revocation involves deprivation of a conditional liberty. The
following minimum due process protections are required in a parole
revocation hearing:
(a) written notice of the claimed violations of parole; (b)disclosure to
the parolee of evidence against him; (c)opportunity to be heard in person
and to present witnesses and documentary evidence; (d)the right to confront
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); (e)a
'neutral and detached' hearing body . . ; and (f)a written statement by the
factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489 (emphasis added). These requirements exist to
ensure that a revocation of parole will be based on verified facts and
accurate information of the parolee's behavior. However, the Court stated
that the process should be flexible, allowing the admission of evidence
that would not be admitted in an adversary criminal trial, including
letters and affidavits. Morrissey, 408 U.S. at 489.
In Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973), the United States Supreme Court found probation revocation hearings
to require the same due process rights as established in Morrissey.
Acknowledging that revocation of probation deprives an individual of a
conditional liberty, the Court clarified that probation revocation, like
parole revocation, is not a stage in the criminal prosecution. The Court
specifically addressed the right of an individual to cross-examine live
witnesses and emphasized that it did not intend in Morrissey to prohibit
the use of alternatives to live testimony in these settings, including
affidavits, depositions, and documentary evidence. Scarpelli, 411 U.S. at
782 n.5.
We applied the requirements set forth in Morrissey to a revocation
hearing in State v. Dahl, 139 Wn.2d 678, 990 P.2d 396 (1999). In that
case, we addressed whether an individual's due process rights were violated
where a trial court admitted hearsay evidence in a revocation hearing.
Recognizing that a revocation hearing is not a criminal proceeding, we
applied a balancing analysis where we weighed the reliability of the
hearsay evidence against the difficulty in procuring the live witness.
Finding that the minimal due process right to confront and cross-examine
witnesses is not absolute, we held that 'Morrissey requires that a finding
of a parole violation be 'based on verified facts and that the {court's}
exercise of discretion will be informed by an accurate knowledge of the
parolee's behavior.'' Dahl, 139 Wn.2d at 688 (quoting Morrissey, 408 U.S.
at 484). Because the hearsay evidence presented was neither demonstrably
reliable nor necessary in that case, we held that Dahl's due process rights
were violated.
In March 2004, the United States Supreme Court ruled in Crawford that
a defendant's right to confrontation under the Sixth Amendment is violated
where testimonial hearsay is admitted at trial and the defendant has not
been afforded the prior opportunity to cross-examine the witness. Crawford
overruled the United States Supreme Court's prior decision in Ohio v.
Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 597 (1980), which held
that, under the confrontation clause, statements of a witness unavailable
at trial may be admitted only if the hearsay bears adequate indicia of
reliability. The Crawford Court rejected this conclusion, stating that
'{w}here testimonial statements are involved, we do not think the Framers
meant to leave the Sixth Amendment's protection to the vagaries of the
rules of evidence, much less to amorphous notions of 'reliability.''
Crawford, 541 U.S. at 61. The Court noted that the confrontation clause
itself reflects both a judgment of the desirability of reliable evidence
and the sense that reliability is best determined in criminal prosecutions
by confrontation. Under this analysis, accordingly, testimonial evidence
is inadmissible at a criminal trial where a witness is unavailable and the
defendant has not been afforded the prior opportunity to cross-examine the
witness.
Abd-Rahmaan argues that the rule articulated in Crawford should apply
to the right to confront witnesses at a sentence modification hearing
because the right to confront a witness in a parole revocation hearing
under Morrissey incorporates the guaranties of the Sixth Amendment. He
contends that no constitutionally permissible means exist to assess the
reliability of testimonial evidence absent confrontation. We disagree.
The confrontation clause of the Sixth Amendment explicitly applies to
'criminal prosecutions.' The United States Supreme Court and this court
have recognized the different due process requirements existing in parole
revocation hearings as opposed to the right to confrontation in criminal
prosecutions. For the purposes of confrontation, the former are analyzed
under the Fourteenth Amendment, while the latter are analyzed under the
Sixth Amendment. By its own terms, the guaranties of the Sixth Amendment
do not apply in these post-conviction settings, but to 'criminal
prosecutions.' We also note that in Crawford, the United States Supreme
Court analyzed the right to cross-examine witnesses exclusively within the
context of the confrontation clause of the Sixth Amendment. Congruent with
the explicit terms of the Sixth Amendment, the Crawford holding applies to
criminal prosecutions and does not require prior cross-examination of
testimonial evidence in civil proceedings or in post-conviction hearings.
While the United States Supreme Court overruled Roberts in Crawford, we
find no indication that it overruled the decisions in Morrissey and
Scarpelli. The minimum rights guaranteed an individual in a parole
revocation hearing as outlined in Morrissey are grounded in the due process
clause of the Fourteenth Amendment, not the Sixth Amendment. No meaningful
difference exists between sentence modification hearings and parole
revocation hearings for the purposes of this inquiry; both settings involve
the potential deprivation of a conditional liberty. In Morrissey and
Scarpelli, the United States Supreme Court held that part of the process
required in a parole revocation hearing was the right to confront adverse
witnesses unless good cause existed not to allow the confrontation. The
Court clarified in Scarpelli that it did not intend to limit the use of
alternatives to live testimony in these settings, explicitly including
affidavits and other documentary evidence, which would otherwise be
considered hearsay. Again, although an individual is guaranteed some
rights in post-conviction hearings, it is not the 'full panoply of rights'
guaranteed a defendant in a criminal prosecution. See Morrissey, 408 U.S.
at 480.
We find nothing in Crawford to support Abd-Rahmaan's argument that the
United States Supreme Court intended to overrule Morrissey and Scarpelli,
and we will not find it by implication. Since sentence modification
hearings are not criminal prosecutions, the more flexible confrontation
requirements under the due process clause of the Fourteenth Amendment still
control. As we stated in Dahl, '{t}he minimal due process right to
confront and cross-examine witnesses is not absolute.' Dahl, 139 Wn.2d at
686 (emphasis added).
Most federal courts have agreed with our conclusion that Crawford is
inapplicable in parole revocation hearings.3 In United States v. Aspinall,
389 F.3d 332 (2d Cir. 2004), the Second Circuit found that Crawford, which
involved a criminal proceeding, neither altered the requirements under
Morrissey or Scarpelli nor suggested that the principles of the
confrontation clause as enunciated in Crawford were applicable to parole
revocation proceedings. The court in Aspinall emphasized the long
recognized distinction between criminal proceedings and parole revocations.
Similarly, in United States v. Barraza, 318 F. Supp. 2d 1031 (S.D.
Cal. 2004), the United States District Court for the Southern District of
California found the rule articulated in Crawford inapplicable in a release
revocation proceeding. The court followed precedent of the Ninth Circuit,
which established the right to confrontation recognized in Morrissey as a
due process right emanating from the Fourteenth Amendment, not from the
Sixth Amendment.4 The court concluded that the United States Supreme Court
did not implicitly overrule Morrissey and Scarpelli in its decision in
Crawford.
We find that Crawford does not apply in sentence modification hearings. In
these postconviction settings, we continue to apply the two-prong test of
Dahl to establish good cause where we consider the reliability of the
hearsay in light of the difficulty in procuring the live witness.
Even if Crawford does not apply here, Abd-Rahmaan urges us to reverse
the Court of Appeals' decision in this case and find that the trial court
erred in admitting the hearsay evidence. He contends that there was no
finding of good cause by the trial court to admit the evidence as required
under Dahl.
'Good cause has thus far been defined in terms of the difficulty and
expense of procuring witnesses in combination with 'demonstrably reliable'
or 'clearly reliable' evidence.' State v. Nelson, 103 Wn.2d 760, 765, 697
P.2d 579 (1985). The trial court here made no record to support a
conclusion that there was good cause to admit the hearsay evidence. There
was neither a showing in the record that the hearsay evidence was
demonstrably reliable nor was there any comment on the difficulty or cost
in procuring live witnesses. Although written findings are useful, trial
courts are not required to make written findings establishing good cause to
admit hearsay evidence in sentence modification hearings; however,
appellate courts require some record explaining the evidence on which the
trial court relied and the reasons for the admission of the hearsay
evidence. These requirements are necessary in order for an appellate court
to ascertain whether there is substantial evidence to support the trial
court's decision to modify a sentence. Unlike the Court of Appeals, we
find the record below insufficient to establish good cause for the
admission of the hearsay evidence or the reasons for the trial court's
decision. The modification of Abd-Rahmaan's sentence is invalid to the
extent the trial court admitted and relied on the hearsay evidence provided
by the CCO's testimony.
CONCLUSION
We reverse the Court of Appeals' decision. While we note that relief
for Abd-Rahmaan here is moot because he has already served his time, we
issue this opinion to clarify the rule for future sentence modification
hearings. We hold that Crawford does not apply in sentence modification
hearings. Under Morrissey and Dahl, the right to confront witnesses at
sentence modification hearings exists unless good cause is established by
the trial court to admit the hearsay evidence. When admitting hearsay on a
finding of good cause, trial courts are required to articulate the basis on
which they are admitting the hearsay testimony by either oral or written
findings in order to facilitate appellate review. While we agree with the
Court of Appeals that trial courts should articulate the reasons for
admitting hearsay evidence in these hearings, we disagree that the record
here is sufficient to review the trial court's reasoning.

WE CONCUR:

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).
2 The Court of Appeals first addressed whether it should dismiss the case
because Abd-Rahmaan had already been released from custody, making the
issue moot. The court found the issue presented a matter of continuing and
substantial public interest and decided to reach the merits of the appeal.
3 However, there is one decision from Federal District Court finding that
Crawford applies in a parole revocation proceeding. See Ash v. Reilly, 354
F. Supp. 2d 1 (D.D.C. 2004).
4 See United States v. Daniel, 209 F.3d 1091(9th Cir. 2000); United States
v. Comito, 177 F.3d 1166 (9th Cir. 1999).
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