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Eighth Circuit: Inadmissible Hearsay Improperly Used to Revoke Supervised Release

by Matt Clarke 

The U.S. Court of Appeals for the Eighth Circuit held that the U.S. District Court for the Western District of Missouri erroneously relied on inadmissible hearsay to revoke a federal defendant’s supervised release. The Court vacated the revocation of sentence and remanded for resentencing on a closed record.

Derone Coleman was on supervised release after serving lengthy sentences for drug trafficking when he allegedly bit, choked, and brandished a gun at Kippie House. The only people who testified at the revocation hearing were Coleman’s probation officer, Stephanie Werning, police officer John Mogilnicki, and police detective Jernisha Cann.

Werning testified that House told her that she was seated in the driver’s seat of a vehicle when Coleman “reach[ed] into the car and choke[d] her out.” Her friend, Lashonda Elam, was in the passenger seat and pulled his hands from around House’s neck while Coleman’s two cousins pulled him away from behind. He then leaned forward, bit House, and waved a gun at her before she drove away.

Two days after the alleged incident, House reported the assault to Werning and met with Mogilnicki, who photographed her injuries—apparent bruising around her left eye and marks on her neck. He wrote down Elam’s name, date of birth, and address but did not ask for the names of Coleman’s cousins.

About a month later, House spoke with Cann and mentioned that she was moving out of town but didn’t leave a new address. Two weeks later, Werning went to House’s last known address to serve a subpoena, but it was abandoned. She phoned House, who said she was homeless and agreed to meet Werning to discuss living options. However, she failed to show up for the meeting.

Werning called House three times, and Cann called twice. But their attempts to contact House all failed. Both testified that House said she was willing to drop the charges because she thought Coleman needed mental health treatment rather than punishment. They also testified that they were unable to contact Elam by phone but never went to her address. Neither made any attempt to identify or contact Coleman’s cousins. Finally, Mogilnicki testified that he made no attempt to contact any witnesses.

At the hearing, the district court ruled that, based on the officers’ testimony, there was good cause for House’s absence and allowed admission of the three witnesses’ hearsay evidence. The court noted that House’s injuries in the pictures “do not appear acutely fresh and consistent” with the Government’s narrative but nevertheless supported House’s statements. The court revoked Coleman’s supervised release. He appealed, arguing that the hearsay evidence was improperly admitted in violation of his due process and confrontation rights.

The Court noted that defendants have less than “the full panoply of protections afforded by the rules of evidence” at the revocation stage. United States v. Sutton, 916 F.3d 1134 (8th Cir. 2019). But they are still entitled to “minimum requirements of due process.” United States v. Timmons, 950 F.3d 1047 (8th Cir. 2020). These include “the right to ‘confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’” Id.

The Court stated that when determining whether a defendant should be allowed to confront an adverse witness, it balances due process rights “against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640 (8th Cir. 1986). To show good cause for denying confrontation rights under the Bell test, the Government must establish that confrontation is undesirable or impractical and that the Government’s evidence offered in place of live testimony is reliable. Id.

The Court stated that the district court was required to assess: “(1) the government’s reason for not producing House; and (2) the reliability of the hearsay offered in place of [House’s] testimony.” See United States v. Simms, 757 F.3d 728 (8th Cir. 2014). The Government must satisfy both prongs of the test, or it fails in establishing good cause. Sutton.  

The Court determined that the Government failed to meet it burden under the first prong of the Bell test. The government ordinarily fails to carry its burden if the witness in question is located within the same state as the revocation hearing. Id. The Court stated that the Government didn’t provide any evidence that House left Missouri, and it rejected the Government’s argument that her unresponsiveness to attempts to reach her by phone rendered her unreachable. Adopting this position would amount to effectively equating “missed calls to an interstate move,” the Court stated. Other than attempts to reach House by phone, no effort was made to locate her, according to the Court.

It also rejected the Government’s argument that calling House would have been futile because she signaled her willingness not to press charges against Coleman. Reluctance to testify falls short of satisfying the first prong of the Bell test, “absent a satisfactory showing that testifying would place [House] in danger of great bodily harm[.]” United States v. Zentgraf, 20 F.3d 906 (8th Cir. 1994). There was nothing in the record to indicate that House would face danger by testifying against Coleman, said the Court. Thus, the Court ruled that the Government “lacked a reasonably satisfactory explanation for House’s unavailability” and therefore failed to meet its burden under Bell’s first prong.

Turning to the reliability prong of the Bell test, the Court stated that the Government’s reliance on the photographs, which fail to answer the “who,” “when,” and “how” of the injuries depicted in them, alone fail to corroborate the hearsay statements in establishing their reliability. Further, the Court found fault with the Government’s lack of effort to gather corroborating evidence from the three alleged witnesses to the incident, nor did the Government attempt to locate surveillance video, examine House’s car, or call an expert witness to testify about her injuries.

Coleman also argued that House had a motive to fabricate claims against him because, as the witnesses testified to at the revocation hearing, House admitted that she was upset about Coleman’s new relationship with another woman. The Court stated that in the revocation context it takes into consideration motive to implicate as a possible indicator of unreliability. See Sutton. With the existence of a motive to falsely accuse Coleman, the Court stated that the Government needed to introduce “additional indicia of reliability.” See id. The Government failed to do so. Thus, the Court concluded that the Government failed to meets its burden of reliability under Bell’s second prong as well as having failed the first prong.

Finally, the Court granted Coleman’s request “to remand without expanding the record.” Quoting United States v. Dawn, 685 F.3d 790 (8th Cir. 2012), the Court stated that remedy is appropriate “where the government knew of its obligation to present evidence and failed to do so.” The Court explained that the Government clearly knew of its obligations under Bell yet failed to satisfy the test thereunder. Consequently, the Court ruled that the Government is barred from expanding the record on remand. See United States v. Johnson, 710 F.3d 784 (8th Cir. 2013).

Accordingly, the Court reversed the judgment, vacated the revocation sentence, and remanded for a revocation hearing without expanding the record. See: United States v. Coleman, 7 F.4th 740 (8th Cir. 2021). 

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Related legal cases

United States v. Coleman

United States v. Simms

United States v. Johnson

 

 

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