               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42070

STATE OF IDAHO,                                 ) 2015 Opinion No. 33
                                                )
       Plaintiff-Respondent,                    ) Filed: June 15, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
MICHAEL DOUGLAS WHITE,                          )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Order revoking probation, vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Michael Douglas White appeals from the district court’s order revoking his probation.
Specifically, he contends his due process rights were violated because he was denied the ability
to confront adverse witnesses at the revocation hearing without a finding of good cause by the
district court and because the district court applied a lesser standard to the finding that he
violated probation. He also argues there was not substantial evidence to support the district
court’s determination that he committed the violation. For the reasons set forth below, we vacate
the district court’s order revoking probation and remand the matter for further proceedings.
                                                I.
                                 FACTS AND PROCEDURE
       In 2010, White was charged with felony driving under the influence (DUI). He pled
guilty and the district court imposed a unified five-year sentence, with two years determinate, but
retained jurisdiction. At the conclusion of the jurisdiction review period, White was placed on
probation.
                                                1
       In 2013, White was again charged with DUI and driving without privileges. As a result,
the State filed a motion alleging a violation of his 2010 probation on the basis that he had
committed two new crimes. The State subsequently filed a motion requesting the district court
take judicial notice of the 2013 case file, which included minutes of the preliminary hearing
(summarizing the testimony of the arresting officer, Officer Koontz, and the magistrate’s finding
that there was probable cause that White committed felony DUI), as well as an order issued by
the magistrate indicating the same. At the evidentiary hearing on the probation revocation, the
State indicated that upon the district court taking judicial notice of the 2013 case file, it would
rely solely on its contents to prove the probation violations. White objected, contending that by
relying only on the contents of the file and not calling any witnesses, the State was violating his
right to confront adverse witnesses regarding the alleged violations. The district court disagreed;
took judicial notice of the 2013 case file; and based solely on the contents of the file, determined
White had violated his 2010 probation by committing the DUI offense. 1 The district court
subsequently revoked White’s 2010 probation and retained jurisdiction. White now appeals the
revocation of his probation.
                                                II.
                                           ANALYSIS
       White contends the district court violated his right to due process when it denied him the
opportunity to confront witnesses at the revocation hearing and when it effectively lowered the
State’s evidentiary burden at the hearing by relying on a magistrate’s probable cause
determination to satisfy the standard of finding a probation violation. The determination of
whether constitutional requirements have been satisfied in a probation revocation hearing is
subject to free review. State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007); State v.
Klingler, 143 Idaho 494, 496, 148 P.3d 1240, 1242 (2006).
       Turning first to White’s contention that his right to confrontation was affronted, we note
that probationers do not enjoy the full panoply of constitutional protections afforded criminal
defendants. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); Rose, 144 Idaho at 765, 171 P.3d at
256; see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (applying Morrissey to
probationers). A motion to revoke probation is not a criminal prosecution. Gagnon, 411 U.S. at

1
       The district court determined the State had not met its burden with regard to the driving
without privileges charge and that ruling is not at issue on appeal.
                                                 2
782; Rose, 144 Idaho at 766, 171 P.3d at 257.            Consequently, the Sixth Amendment’s
Confrontation Clause, which grants to criminal defendants the right to confront adverse
witnesses, does not apply to probationers. Rose, 144 Idaho at 766, 171 P.3d at 257.
       Still, a probationer has a protected liberty interest in continuing probation and is therefore
entitled to due process before probation may be revoked. Id. In Morrissey, 408 U.S. at 489, the
Court established minimum due process requirements for probation and parole revocation
proceedings under the Fourteenth Amendment. Among other protections, a probationer has the
“right to confront and cross-examine adverse witnesses” unless the district court “specifically
finds good cause for not allowing confrontation.” Id.; Rose, 144 Idaho at 766, 171 P.3d at 257.
       In responding to White’s contention at the evidentiary hearing that his right to
confrontation was violated by the State’s sole reliance on the preliminary hearing minutes and
order finding probable cause in the 2013 case, the district court responded it had long relied on
Rose, 144 Idaho 762, 171 P.3d 253, which “says that [the right to confrontation] is very
markedly restricted as long as there’s a reliability determination that’s been made and whether
the prior process has the earmarks of reliability.” Apparently implicitly finding the documents
reliable, the district court then determined that based on the documents, the State met its
evidentiary burden establishing a probation violation.
       White contends his right to confrontation as set forth in Morrissey was violated because
the district court disallowed confrontation without “specifically find[ing] good cause for not
allowing confrontation.” Morrissey, 408 U.S. at 489; Rose, 144 Idaho at 766, 171 P.3d at 257.
The State does not dispute that it did not provide any justification for not presenting any
witnesses and that the district court did not make a finding that there was good cause for
depriving White of his right to confront witnesses. Rather, the State argues that the good cause
analysis “is limited to circumstances in which the probationer or parolee is prevented from
confronting adverse evidence” and that the district court did not prevent White from calling any
witnesses. In addition, the State contends that White was able to cross-examine the witness at
the probable cause hearing. Thus, the State asserts that White was not deprived of his right to
confront evidence against him and the court was not required to engage in a good cause analysis.
       The State’s arguments are unavailing. As White points out, the State’s assertion that a
defendant’s right to confrontation under the Fourteenth Amendment is satisfied if a defendant
has the ability to subpoena witnesses would render the nature of this right to confrontation

                                                 3
fundamentally different than that secured by the Sixth Amendment’s Confrontation Clause. See
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) (rejecting the government’s
argument that a defendant’s ability to call witnesses vitiated the defendant’s contention that his
Sixth Amendment Confrontation Clause rights were violated by the admission of a laboratory
report without live testimony from the preparer of the report, noting that the power to call
witnesses under the Compulsory Process Clause or state law “is no substitute for the right of
confrontation”). In addition, Idaho case law applying the Fourteenth Amendment’s right to
confrontation does not support the State’s contention that a court must only consider good cause
if it has affirmatively prohibited a defendant from calling his own witnesses. In Rose, 144 Idaho
at 763, 171 P.3d at 254, the State filed a motion in January 2005 alleging Rose violated the terms
of his probation by changing residences without permission, using drugs, and absconding from
supervision.   At the evidentiary hearing, Rose’s probation officer testified that she began
supervising Rose in December 2004 after his previous probation officer was deployed to Iraq.
She then testified at length as to the contents of the previous officer’s notes contained in the
probation file, an email bulletin she received from the police department stating that Rose had
been seen waiting for a taxi to a motel, Rose’s grandmother’s statements that she had not seen
Rose for three days, Rose’s girlfriend and her mother’s statements that they did not know Rose’s
whereabouts, and information the probation officer received from a laboratory technician
regarding the results of Rose’s urinalysis. Although Rose was allowed to cross-examine the
probation officer, he objected to her testimony on the basis that her testimony regarding the prior
officer’s notes and what others told the probation officer constituted impermissible hearsay that
violated his right to confrontation. The district court overruled the objection, finding, among
other things, that the prior officer’s notes were reliable.
        In its decision, the Supreme Court noted that on intermediate appeal this Court had
determined that the Sixth Amendment right to confrontation set forth in Crawford v.
Washington, 541 U.S. 36 (2004) was inapplicable to probation revocation proceedings 2 and that
the lesser confrontation right afforded as a matter of the lesser due process right under Morrissey
and Gagnon (allowing the right to confront and cross-examine adverse witnesses unless the trial



2
        Crawford’s applicability is not at issue in this case.


                                                   4
court finds good cause for not producing the witnesses) were applicable, but were not violated. 3
Rose, 144 Idaho at 765, 171 P.3d at 256. The Supreme Court indicated it granted limited review
on the Crawford issue, thus impliedly affirming this Court’s application of the Morrissey due
process standard to Rose’s argument that he was entitled to confront the underlying witnesses
(the former probation officer, Rose’s grandmother, his girlfriend and her mother, the police
officer, and the lab technician), whose hearsay statements were presented at the revocation
hearing. And given the indication that Rose had been allowed to call his own witnesses (this
Court’s opinion specifically mentions that he called his grandmother to testify), it is clear that
neither this Court, nor the Idaho Supreme Court, contemplated that Morrissey’s requirement that
a defendant be afforded the right to confront and cross-examine witnesses absent good cause
applied only when a defendant was prohibited from calling any witnesses, as the State now
argues on this appeal.
       A similar approach is evident in State v. Farmer, 131 Idaho 803, 806, 964 P.2d 670, 673
(Ct. App. 1998). There, Farmer was on probation for two different judgments of conviction. A
report of violation was filed in both cases and an evidentiary hearing was held. At the hearing,
the State submitted two urinalysis reports, both indicating that Farmer testified positive for a
controlled substance. Farmer objected to use of the reports arguing, among other things, that
they violated her right to confrontation.    The district court admitted the reports, finding them
credible and reliable and determining there was no violation of Farmer’s right of confrontation.
Finding Farmer in violation of probation based on the reports, the court revoked her probation in
both cases.
       On appeal, Farmer argued that her right to confrontation was violated when the district
court admitted the urinalysis reports without the testimony of the technicians who performed the

3
        Specifically, after setting forth in detail the considerations relevant to a finding of “good
cause,” this Court determined: (1) in regard to the contents of the prior probation officer’s file,
admission of this evidence was harmless because it went to a charge that was ultimately
dismissed; (2) because Rose called his grandmother to testify on his behalf, he was not deprived
of the right to confront and cross-examine her as a witness; (3) that although it was not clear
whether the State had the requisite good cause for not producing the police officer who sent the
bulletin, Rose’s girlfriend and the girlfriend’s mother, Rose’s due process rights were not
violated because the inability to cross-examine was not prejudicial; and (4) even if it was error to
admit the probation officer’s testimony regarding the lab technician’s statements, it was harmless
and did not violate Rose’s due process right to confront witnesses. State v. Rose, Docket
No. 31966, (Ct. App. May 30, 2006) (unpublished).
                                                 5
tests.   This Court first noted the Morrissey requirement that a defendant in a revocation
proceeding has the right to confront and cross-examine adverse witnesses and that this right
exists unless the district court “specifically finds good cause for not allowing confrontation.”
Farmer, 131 Idaho at 806, 964 P.2d at 673. This Court continued, discussing the analysis
applicable to such an inquiry:
                 In analyzing whether the defendant’s right to confrontation was violated,
         courts employ a process of balancing the defendant’s right to confrontation
         against the state’s good cause for denying it. [United States v. Simmons, 812 F.2d
         561, 564 (9th Cir. 1987)]; California v. Arreola, 875 P.2d 736, 746-47 (1994);
         Kansas v. Yura, 825 P.2d 523, 530 (1992); Washington v. Nelson, 697 P.2d 579,
         581 (1985). See also In re True, 103 Idaho 151, 155, 645 P.2d 891, 895 (1982)
         (rights cognizable under the Fourteenth Amendment require a balancing of the
         relative interests of the individual and the state). In evaluating good cause, courts
         look to both the “difficulty and expense of procuring witnesses,” Gagnon, 411
         U.S. at 782 n.5, and the reliability of the evidence, Simmons, 812 F.2d at 564. On
         the other side of the balancing process, the court should weigh the defendant’s
         right to confrontation under the specific circumstances presented in that case.
         [United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993)].

Farmer, 131 Idaho at 806-07, 964 P.2d at 673-74.
         Turning to the facts in Farmer, this Court noted,
         [I]n weighing good cause, the district court found that the urinalysis reports were
         credible and reliable.[] Moreover, as the district court noted at the revocation
         hearing . . . the company who administered the urinalysis test was located in
         Tacoma, Washington. Thus, the state would have had the added expense and
         difficulty of procuring witnesses from an out-of-state company performing the
         tests on Farmer’s urine sample.
                 In light of the district court’s finding that the reports were credible and
         reliable, and the diminished protections which attach to a probation revocation
         proceeding, Simmons, 812 F.2d at 565, we agree that there was good cause for the
         state to avoid the difficulty and expense of bringing personnel from [the testing
         company] to testify.[4]




4
         This Court noted that although the district court had not explicitly found there was good
cause for dispensing with confrontation, a finding to that effect was implicit based on its review
of the record. State v. Farmer, 131 Idaho 803, 807 n.3, 964 P.2d 670, 674 n.3 (Ct. App. 1998).
This was likely based on the district court’s acknowledgment of the difficulty in procuring the
requisite witnesses.


                                                  6
Id. at 807, 964 P.2d at 674. 5
        Put simply, we are not inclined to disregard the approaches taken in Rose and Farmer
(thereby disregarding Farmer’s entire discussion of the considerations attendant to a good cause
analysis), disregard the plain language of Morrissey, and fundamentally distinguish confrontation
in the Fourteenth Amendment context from that under the Sixth Amendment without convincing
authority. None has been provided here. The State’s reiteration of the “flexible” nature of due
process in this context, as referenced in both Morrissey and Rose, does little to move the dial. As
we discussed in Farmer, the good cause balancing test that courts are required to consider is not
onerous; in fact, it allows for a common sense, flexible balancing of the interests by the court in
determining whether to allow documentary or hearsay evidence in lieu of live testimony. 6
Accordingly, we hold that Morrissey’s requirement that a probationer be afforded the “right to
confront and cross-examine adverse witnesses” unless the district court “specifically finds good
cause for not allowing confrontation,” Morrissey, 408 U.S. at 489, applies regardless of whether
the district court allows the probationer to call witnesses.
        Since the State does not dispute that it did not provide any justification for not presenting
any witnesses and that the district court did not make a finding that there was good cause for
depriving White of his right to confront witnesses, we can readily say that consideration of the
2013 minutes was not allowed. As these minutes were the sole basis for the district court’s

5
        As we further discussed in Farmer, another factor (not present in this case) was at play.
Specifically, this Court noted that formal testimony in regard to laboratory results, “rarely leads
to any admissions helpful to the party challenging the evidence.” Farmer, 131 Idaho at 807, 964
P.2d at 674 (citing United States v. Bell, 785 F.2d 640, 643 (8th Cir. 1986) and Jaeger v. State,
948 P.2d 1185, 1189 (1997) (reliability of drug tests eliminated the need to call as witnesses the
laboratory technicians who analyzed the probationer’s urine samples)). This fact, in combination
with the reasons discussed above, led this Court to hold that under the circumstances of that case,
the district court did not err in admitting the evidence of the two urinalysis reports over Farmer’s
right to confrontation objection.
        We took pains, however, to explain that our holding in this regard was “not intended to
create a blanket rule admitting all urinalysis laboratory reports in revocation proceedings.
Urinalysis evidence, as with every alleged violation of the Morrissey right to confrontation,
should be admitted only if the district court has applied the appropriate balancing test.”
Farmer, 131 Idaho at 807 n.4, 964 P.2d at 674 n.4 (internal citations omitted) (emphasis added).
6
        As White points out, the only witness called in the case, Officer Koontz, was a local
police officer who, just weeks prior to the probation hearing in this case, had provided testimony
before a magistrate in the 2013 case.


                                                  7
finding that a probation violation occurred, that finding is in error. 7 The district court’s order
revoking White’s probation is vacated and this matter is remanded to the district court.
       Chief Judge MELANSON CONCURS.
       Judge GRATTON, SPECIALLY CONCURRING
       I concur with the majority opinion. However, I would add a strong caution against using
the mere minutes from a probable cause hearing and the order finding probable cause as the sole
basis of proof of a probation violation, particularly one involving a separate crime. Such minutes
are a summary of testimony, not testimony. In this instance, the district court, at best, made only
an implied finding of reliability. See State v. Farmer, 131 Idaho 803, 806, 964 P.2d 670, 673
(Ct. App. 1988) (requiring a reliability finding). In addition, the district court made no express
findings as to any purported facts supporting the determination of probation violation. See State
v. Chapman, 111 Idaho 149, 152-153, 721 P.2d 1248, 1251-1252 (1986) (requiring findings).
Consequently, it is made to appear that the court merely applied the probable cause
determination itself as sufficient to establish the probation violation when a greater showing is
required. See Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (evidentiary hearing “must be the
basis for more than determining probable cause”). While proof of a recent conviction would
support a finding of a probation violation, it is not a prerequisite. State v. Wilson, 127 Idaho 506,
510-11, 903 P.2d 95, 99-100 (Ct. App. 1995). This is so, because a probation violation, unlike a
criminal conviction, need not be proven beyond a reasonable doubt. State v. Dempsey, 146
Idaho 327, 329, 193 P.3d 874, 876 (Ct. App. 2008). Nonetheless, more than a finding of
probable cause is necessary and citation to the probable cause hearing minutes and order, without
more, is in my view insufficient.




7
        Given our disposition of this issue, we need not reach White’s alternate arguments: that
the district court effectively lowered the State’s evidentiary burden at the hearing by relying on a
magistrate’s probable cause determination to satisfy the standard of finding a probation violation
and that the district court’s finding of a probation violation was clearly erroneous because there
was “no evidence” to support the determination.
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