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State v. James5/29/2002
Reporter of Decisions
Argued: May 7, 2002
John James appeals from a judgment of the Superior Court (Sagadahoc County, Field, J.) revoking James's probation and ordering that he serve the remaining term of his underlying sentence. James contends that the court's consideration of multi-level hearsay evidence violated his due process right to confront and cross-examine adverse witnesses. We agree and vacate the judgment.
I. CASE HISTORY
On June 15, 1998, John James was convicted of Class C burglary and theft, and sentenced in the Superior Court (Atwood, J.) to the Department of Corrections for a term of five years, with all but six months suspended. The Superior Court also ordered that James be placed on probation for a term of three years, with conditions, including requirments that he refrain from criminal conduct and the possession or use of alcohol.
A motion to revoke James's probation was filed by Probation Officer Anthony Trodello on October 12, 2000, alleging that James violated the terms of his probation on August 16, 2000, by (1) committing the offense of criminal mischief, and (2) having a blood-alcohol content of 0.11% or more.
At the September 26, 2001 probation revocation hearing, the State presented only the testimony of Corinne Zipps, James's assigned Probation Officer, in support of the revocation. Zipps testified that she spoke several times with James's arresting officer, Officer Paul Cox of the Windham Police Department, as part of her investigation of the allegations. Officer Cox relayed to Zipps that the Windham police had been summonsed to a campground by James's girlfriend, who called from a local store to report that James had "threatened her, smashed out her windshield and started to tear up their tent when she attempted to leave." James's girlfriend told the police that James got on the hood of her vehicle when she attempted to leave but fell off when she increased her speed.
Zipps never spoke directly with James or his girlfriend about the alleged incident. In the record, it is unclear whether Officer Cox spoke directly with James's girlfriend or whether another Windham officer spoke with her and then advised Cox of her statements. Zipps testified that the resulting criminal mischief charge was dismissed by the Cumberland County District Attorney's Office on August 15, 2001, more than a month before the probation violation hearing, due to a lack of cooperation by the victim.
Officer Cox also told Zipps that he administered an intoxilizer test at the time of James's arrest. Zipps testified that she "believed" the result of the test was a 0.11% blood-alcohol concentration. No blood- alcohol test was marked as an exhibit or admitted by the court at the probation violation hearing. When asked whether Cox was trained to administer the breath alcohol apparatus, Zipps replied, "I believe all of the Windham officers are trained, except for the newest ones, and are certified."
The defense objected to Zipps's hearsay testimony on the grounds that it violated James's due process right to confront witnesses. Specifically, the defense objected to Zipps's testimony regarding the content of her conversations with Probation Officer Trodello and Officer Cox as well as Zipps's testimony regarding her beliefs about the contents of the intoxilizer report. The court overruled each of the objections, noting that the evidence presented "a pure hearsay problem," and not a problem regarding the defendant's due process rights.
The Superior Court found by a preponderance of the evidence that John James committed criminal mischief and consumed intoxicating liquor in v
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