Moten v. State

903 S.E.2d 777

MOTEN

v.The STATE.

A24A0529

Court of Appeals of Georgia.

June 24, 2024

Jay Kwon Kim, for Appellant.

Joshua Bradley Smith, John M. Kraft, Jared Tolton Williams, Augusta, for Appellee.

Doyle, Presiding Judge.

Thaddeus Avery Moten appeals from the trial court’s order revoking his probation, arguing that his due process right to confront adverse witnesses was violated and that inadmissible evidence was considered. Because Moten is correct and the State concedes that the evidence was insufficient to support the revocation order, we reverse the trial court’s judgment.

[1–3] As a general rule, "[t]his [C]ourt will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court."¹ We will affirm a probation revocation if the record includes "some competent evidence to show that the defendant violated the terms of his probation in the specific manner charged."² Moreover, evidence produced at a revocation proceeding need only establish the violations of probation by a preponderance of the evidence, a less stringent standard than that required to sustain a criminal conviction.³

The record here shows in 2019, Moten pled guilty to possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, possession of a Schedule II controlled substance, possession of methamphetamine with intent to distribute, possession of a firearm during the commission of a felony, obstruction of an officer, and possession of a firearm by a convicted felon. The court sentenced him to seven years, with the first two to be served in confinement, and the remainder on probation. In June 2023, the court issued a warrant for Moten’s arrest on the basis that Moten had violated the conditions of his probation by refusing to participate in the Coastal Residence Substance Abuse Treatment (hereinafter "RSAT") program on May 26, 2023. The warrant was signed by Officer James Lance of the Department of Community Supervision ("DCS"), who was Moten’s Community Supervision Officer. In July, the State filed a revocation petition on the same basis, also signed by Lance.

The matter proceeded to a probation revocation hearing at which the State called as its only witness DCS Officer Cody Dittfurth, who testified that he was a Day Reporting Center ("DRC") officer while Moten was completing the residential program at the Augusta DRC, that he had previously shared supervision of Moten, and that Moten’s supervising officer was in training that day. Dittfurth testified that during his time at the DRC, Moten repeatedly had failed drug tests and was arrested on May 11, 2023, for failing to comply with the Augusta DRC rules, and he was transported to the Coastal RSAT program on May 26, 2023, which was administered by the Department of Corrections. Dittfurth testified that upon Moten’s arrival at Coastal RSAT, he refused to participate in the program and signed a refusal form. The refusal form was not admitted into evidence.

On cross-examination, Dittfurth conceded that he was not Moten’s probation officer, nor were Moten’s Augusta DRC violations part of the revocation petition. Dittfurth acknowledged that he was not employed by RSAT or by the Department of Corrections, testified that he was "marginally" not "intimately" familiar with the RSAT processes, and testified that he did not witness the signing of the refusal form by anyone. Dittfurth acknowledged that he did not receive personal notice of Moten’s failure to participate in the RSAT because he was no longer with the DRC when Moten refused, and the counselor who signed the form was not present in court for the hearing. Dittfurth’s knowledge of the case was based on DCS case notes, and he did not write any of the case notes that pertained to RSAT. When asked if he was familiar with Moten’s signature, Dittfurth replied that could not say he was intimately familiar with Moten’s signature but had seen it a "handful of times," and based on his "limited experience," he believed the form bore Moten’s signature.

Moten did not object during Dittfurth’s testimony to his lack of first-hand knowledge. Rather, after the conclusion of the evidence, Moten objected to the admission of the form, which as stated earlier, was not admitted into evidence on the ground that the State failed to lay the proper foundation necessary for it to be considered under the business records exception to the hearsay rule. Additionally, Moten argued that his due process right of confrontation was violated, that there was no evidence as to why a RSAT witness was not present, and that Dittfurth had no personal knowledge about the specific allegation in the petition.

Following the hearing, the court revoked Moten’s probation, sentencing him to two years, followed by the original term of probation. We granted Moten’s application for discretionary appeal, and he now asserts four enumerations of error: (1) the violation of his due process right to confrontation; (2) the admission of irrelevant evidence; (3) the consideration of the refusal form; (4) and the shift in the burden of proof from the State to Moten to explain the allegations in the petition. Because we conclude that Moten’s due process rights were violated, we reverse the trial court’s judgment.

1. Moten contends that his due process right of confrontation to cross-examine adverse witnesses was violated when the adverse witnesses failed to appear during the revocation proceeding without good cause shown. In Grimes,⁴ we discussed the due process right to confrontation in the context of a revocation hearing, explaining as follows:

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, guarantees a criminal defendant the right to be confronted with the witnesses against him. Under the Confrontation Clause, testimonial hearsay is admissible against a criminal defendant only when the witness is unavailable to testify, and the defendant had a prior opportunity to cross-examine the witness. Nevertheless, in a probation revocation hearing, the right to confront adverse witnesses arises not under the Confrontation Clause, but rather as a matter of due process, which is less stringent than the confrontation

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