Sherburne County District Court File No. K3-01-284
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge;
and Minge, Judge.
1. When the defendant has had ample opportunity to present evidence in a probation revocation hearing, the rules of evidence do not preclude admission of hearsay evidence, such as a letter reporting that defendant violated the terms of probation.
2. In a probation revocation hearing, a police officer may testify as to what he observed during a traffic stop even though there was lack of articulable suspicion for the stop.
The opinion of the court was delivered by: Minge, Judge
Appellant challenges the revocation of his probation on the grounds that hearsay and illegally obtained evidence were improperly admitted, that the record does not support revocation, and that a continuance was improperly granted. Because the district court did not err in admitting certain evidence or abuse its discretion in revoking probation or granting the continuance, we affirm.
On July 2, 2001, appellant Lance Howard Johnson was sentenced in Sherburne County to two years of probation for a gross misdemeanor driving while impaired (DWI). The conditions of probation were that he not consume alcoholic beverages, that he obey the law, that he participate in and complete a chemical-dependency program, including aftercare, and that he view a four-hour Mothers Against Drunk Driving (M.A.D.D.) victim impact program. Johnson was originally placed under the supervision of Sherburne County Probation Officer Joseph Seminari. This probation was later transferred to Probation Officer Todd Schmatz in Mille Lacs County, appellant's county of residence.
On March 16, 2003, Police Officer Benjamin Zawacki stopped Johnson in Mille Lacs County for allegedly failing to yield the right of way. In questioning Johnson after the stop, Officer Zawacki noted that Johnson appeared intoxicated and administered a breath test, which showed that Johnson had a blood alcohol concentration of.177. Johnson admitted to Officer Zawacki that he had been drinking. He was arrested and charged with second-degree DWI and failure to yield the right of way.
On March 18, 2003, Mille Lacs County Probation Officer Schmatz wrote a letter to Sherburne County stating that Johnson had violated the terms of his probation because Johnson's file did not indicate that he had completed outpatient treatment or attended the M.A.D.D. program and because he had been charged with another DWI offense. Sherburne County then filed a probation violation report with the Sherburne County District Court stating that Johnson had (1) used alcohol; (2) broken the law; (3) not provided evidence that he had completed the outpatient chemical-dependency program; and (4) not provided evidence of attendance at the M.A.D.D. victim impact program.
At the first probation revocation hearing in June 2003, the Sherburne County District Court allowed Officer Seminari to testify about the contents of Officer Schmatz's letter regarding Johnson's violation of probation conditions (3) and (4). Johnson stipulated that he had failed to complete the aftercare program but objected to the admission of Officer Schmatz's letter and to Officer Seminari's testimony on the ground that they were hearsay and denied him the right to confront Officer Schmatz.
The court declined to accept the March DWI complaint as substantive evidence that Johnson had violated probation revocation grounds (1) and (2). The state then requested and was granted a continuance to allow testimony from Officer Zawacki regarding Johnson's DWI and failure to abstain from use of alcohol. At a subsequent omnibus hearing, the Mille Lacs County District Court determined that there was not adequate evidence to justify the traffic stop, ruled the stop improper, suppressed evidence obtained as a result of the stop, and dismissed the DWI charges.
On September 10, 2003, the Sherburne County District Court probation revocation proceeding resumed to hear testimony from Officer Zawacki and to consider evidence relating to the now-dismissed DWI stop. The district court ruled that under Minn. Stat. § 626.21 (2002), certain evidence obtained as a result of the illegal stop was inadmissible, including the blood alcohol level and positive tests for cocaine. However, the district court ruled that neither Officer Zawacki's roadside observations of Johnson's appearance, including the odor of alcohol, slurred speech, and blurry eyes nor Johnson's admission to the officer that he had been using alcohol, constituted "property" seized from Johnson and that both were admissible. The district court concluded that based on Officer Zawacki's testimony, the stipulated failure to complete the chemical-dependency aftercare program, and the letter about the M.A.D.D. program, Johnson had violated the terms of his probation and that probation was revoked. The district court considered the admission by Johnson that he had been consuming alcohol a close call and stated ...