State v. Jones, 382 N.C. 267 (Aug. 19, 2022)

In this Durham County case, the Supreme Court modified and affirmed the Court of Appeals opinion denying defendant’s appeal of the revocation of his probation after a hearing. 

Defendant was placed on probation in 2015 for discharging a weapon into occupied property and possession of a firearm by a convicted felon. Probation reports filed in 2017 alleged that defendant violated the terms of probation by committing new criminal offenses. The new criminal offenses were 2016 charges of possession of a firearm by a felon and carrying a concealed weapon that arose from a traffic stop. When the 2016 firearm charges went to trial, defendant filed a motion to suppress evidence obtained through the traffic stop; the trial court denied that motion, but the jury did not reach a unanimous verdict, resulting in a mistrial on July 14, 2017. Subsequently the probation violations went to hearing on September 14, 2017, and the State sought to admit the order from the motion to suppress over the objection of defense counsel. Notably, defense counsel did not attempt to call the arresting officer to testify or request that he otherwise remain available to testify at the probation hearing. When the trial court admitted the order, the court also admitted the hearing transcript with the arresting officer’s testimony, and at the conclusion of the probation hearing the court found defendant had committed the violations and revoked defendant’s probation. 

On appeal, defendant argued that admission of the transcript with testimony from the arresting officer deprived him of his right to confront and cross-examine witnesses against him. Examining defendant’s appeal, the Supreme Court explained that “a probation revocation proceeding is not a criminal trial,” and defendant was not entitled to the full Sixth Amendment rights afforded in a criminal prosecution. Slip Op. at ¶13. Instead, defendant was entitled to a more limited set of rights for probation revocation hearings. Slip Op. at ¶14, quoting Black v. Romano, 471 U.S. 606, 612 (1985). The court noted that traditional rules of evidence do not apply, and N.C.G.S. § 15A-1345(e) establishes the procedural requirements for a probation revocation hearing. Slip Op. at ¶15. In particular, N.C.G.S. § 15A-1345(e) provides that defendant “may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” However, defendant’s objection during the probation hearing was not because of his inability to cross-examine the arresting officer, but instead because the order on the motion to suppress was irrelevant since the jury did not convict defendant of the crimes. Slip Op. at ¶19. 

Because defendant’s objection was not clearly about confrontational rights, and defendant never attempted to actually confront or cross examine the arresting officer at the probation hearing, the Supreme Court found that he failed to preserve the issue on appeal. Further, the court noted that this was not a situation where a statutory mandate would preserve the objection, because the “plain language of N.C.G.S. § 15A-1345(e) contains a conditional statutory mandate which means normal rules of preservation apply unless the trial court fails to make a finding of good cause when the court does not permit confrontation despite a defendant’s request to do so.” Slip Op. at ¶26. The trial court never received a request for confrontation, and never indicated that it would not permit confrontation or examination, meaning no finding of good cause was necessary.