January 26, 2009 – State of New Mexico v. Jaime Guthrie, No. 27,022

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _________
Filing Date: 	January 26, 2009
NO. 27,022
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JAIME GUTHRIE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Ricky D. Purcell, District Judge
Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Stephanie Erin Brunson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Jaime Guthrie challenges the district court’s revocation of his
probation. 	Defendant argues that he was denied due process under this Court’s
decision in State v. Phillips, 2006-NMCA-001, ¶¶ 11-16, 138 N.M. 730, 126 P.3d
546, when the district court revoked his probation based on the hearsay testimony of
a witness who, without any personal knowledge of the bases upon which the State was
seeking revocation, read into evidence the statements included in Defendant’s
probation file. We conclude that the district court did not specifically find good cause
for not requiring confrontation as mandated by Phillips, and we reverse and remand.
In reaching our conclusion, we take this opportunity to clarify (1) the distinction
raised in Phillips between the Sixth Amendment right to confrontation guaranteed to
defendants in criminal prosecutions and the Fourteenth Amendment minimum due
process right to confrontation guaranteed to defendants in probation revocation
hearings and (2) the justifications for a finding of good cause by the district court.
BACKGROUND
{2} 	In July 2005, Defendant pleaded guilty to three charges related to an altercation
with a law enforcement officer that took place earlier that year. 	Following
Defendant’s guilty plea, the district court deferred sentencing on the condition that

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Defendant be placed on supervised probation for two and one half years less one day.
The conditions of Defendant’s probation required him to, among other things,
successfully complete a ninety-day residential treatment program, regularly report to
his probation officer, and make monthly probation payments. In September 2005,
Defendant allegedly violated several conditions of his probation agreement, and the
State subsequently filed a motion to revoke his probation. Four days after the State
filed its motion, a stipulated order was filed in the district court that allowed
Defendant to remain on probation and ordered his transfer from state custody to a
residential treatment center in order to fulfill his agreement to complete a treatment
program. 	In May 2006, the State filed a second motion to revoke Defendant’s
probation based in part on the allegation that he failed to successfully complete his
required program at the residential treatment center.
{3} 	Prior to the August 10, 2006 hearing on the State’s second motion to revoke
Defendant’s probation, the State issued a subpoena to secure the presence of
Defendant’s probation officer, Cindy Chavez, at the hearing. However, the State’s
subsequent “notice of intent to call witnesses” indicated that it only planned to call
Jaime Olivas, Ms. Chavez’s supervisor, to testify. Indeed, Mr. Olivas was the only
witness who testified at the hearing.

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{4} 	At the hearing, before Mr. Olivas testified, Defendant requested the dismissal
of the State’s motion and argued that any testimony offered by Mr. Olivas would be
hearsay and would violate Defendant’s constitutional right under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. The district court
noted the objection and proceeded with the hearing. The State then called Mr. Olivas,
who testified that he was Ms. Chavez’s supervisor, that Ms. Chavez was required to
submit probation violation reports to him, and that he could be considered a
“custodian” of such reports. Mr. Olivas then testified that he did not sign the report
authored by Ms. Chavez concerning Defendant’s alleged probation violations.
Defendant promptly made a hearsay objection, which was overruled. Mr. Olivas then
continued to testify about the statements included in Defendant’s file. He stated that
Defendant’s file indicated that Defendant had been discharged from a program at a
residential treatment center for violating its rules, that Defendant had failed to report
to the probation office, and that Defendant had failed to make mandatory probation
payments. On cross-examination, Defendant focused exclusively on the fact that Mr.
Olivas had not previously worked on Defendant’s case, and Mr. Olivas ultimately
admitted that he had “no personal knowledge” of Defendant’s case “except for what
[was] contained in the file.”

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{5} 	Closing arguments followed Mr. Olivas’ testimony. 	The State focused its
argument on its establishment of a foundation that Mr. Olivas acted as a “business
custodian” of the report that alleged Defendant’s violations of his probation
conditions. In response, Defendant argued that he had a constitutional right “to cross-
examine and confront all the witnesses against him” and that Ms. Chavez’s absence
was therefore fatal to the State’s argument in favor of revoking Defendant’s probation.
Defendant further argued that “there is clear and established case law . . . that the
court’s decision cannot be based entirely on hearsay.” Finally, Defendant expressed
his outrage at the fact that Mr. Olivas had not “approve[d]” the report submitted by
Ms. Chavez.
{6} 	Ultimately, the district court ruled in favor of the State and revoked Defendant’s
probation. In doing so, the district court stated that the testimony of Mr. Olivas was
“probative of the fact” that Defendant had violated the terms of his probation by not
successfully completing the residential treatment program. 	The judge further
explained that the “filings” in Defendant’s case indicated that Defendant had not
successfully completed the residential treatment program and that Defendant had
failed to provide any evidence that such was not the case. Defendant appeals from
that ruling.

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CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AT PROBATION
REVOCATION HEARINGS
{7} 	We review the district court’s revocation of a defendant’s probation for an
abuse of discretion. Phillips, 2006-NMCA-001, ¶ 10. “The district court abuses its
discretion when its ruling is based on a misunderstanding of the law.” Id. Our task
therefore requires an examination of the applicable constitutional law to determine if
the district court issued its ruling based on a misunderstanding of Defendant’s right
to confront the witnesses against him at his probation revocation hearing. As such,
our review is de novo. See State v. Ochoa, 2008-NMSC-023, ¶ 10, 143 N.M. 749, 182
P.3d 130 (“The application and interpretation of law is subject to a de novo review.”).
{8} 	Defendant’s argument that the district court violated his right to due process by
not permitting him to confront his probation officer, and therefore abused its
discretion in revoking his probation, relies heavily on this Court’s decision in Phillips.
In Phillips, we considered the revocation of a defendant’s probation when “[t]he
[s]tate’s only witness at the hearing was a probation officer who relied solely upon
statements made in unauthenticated documents in her file.” Phillips, 2006-NMCA-
001, ¶ 1. Those statements included “an annotation from another probation officer
and some documents . . . from Arizona,” where the defendant’s probation had
previously been transferred. Id. The probation officer who testified was otherwise

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unfamiliar with the defendant’s case. 	Id. ¶ 4. 	Over objection, the district court
concluded that the documents that included the hearsay statements that were offered
as testimony “were relevant and kept in the ordinary course of business” and therefore
allowed the probation officer to read the statements into evidence. 	Id. ¶¶ 1, 6.
Relying on those hearsay statements, the district court concluded that the defendant
had violated his probation. 	Id. ¶ 8. 	The defendant subsequently appealed to this
Court, arguing that, by relying on those statements as the sole basis upon which to
revoke his probation, the district court violated “his confrontation and due process
rights.” Id. ¶¶ 1, 9.
{9} 	In reaching our decision in Phillips, we explained that the formal rules of
evidence do not apply to probation revocation hearings, id. ¶ 11; see also Rule 11-
1101(D)(2) NMRA (stating that the rules of evidence are not applicable to
proceedings for “granting or revoking probation”), and we clarified that the pertinent
question was whether the defendant was “afforded minimum due process” in light of
the hearsay testimony to which he objected. 	Phillips, 2006-NMCA-001, ¶ 11. As
such, the rule that came out of Phillips was that, before a district court may revoke a
defendant’s probation, due process requires the actual presence and testimony of the
person whose statements form the basis of revocation, unless the state makes an

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adequate showing, and the district court makes a specific finding, of “good cause” for
not calling such person as a witness. See id. ¶¶ 12, 14, 16.
{10} 	Although 	Phillips 	may seem to address a defendant’s right under the
Confrontation Clause of the Sixth Amendment to confront and cross-examine
witnesses at probation revocation hearings, it does not. Rather, Phillips explains the
right as one that exists under the authority of the Due Process Clause of the Fourteenth
Amendment. See id. ¶ 12 (explaining that the question is one of “due process” and
citing the applicable federal case law explaining the existence of the right under the
Fourteenth Amendment). In reaching this distinction, we note that the Confrontation
Clause of the Sixth Amendment applies only to “criminal prosecutions.” U.S. Const.
amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.”). The right to confront witnesses that is
guaranteed in the Sixth Amendment does not apply to probation revocation hearings.
See, e.g., State v. Rose, 171 P.3d 253, 257 (Idaho 2007) (“A motion to revoke
probation is not a criminal prosecution. 	Consequently, the Sixth Amendment’s
Confrontation Clause, which grants to criminal defendants the right to confront
adverse witnesses, does not apply to probationers.” (citations omitted)); see also State
v. Sanchez, 109 N.M. 718, 719, 790 P.2d 515, 516 (Ct. App. 1990) (stating that a

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probation revocation hearing is not a criminal prosecution). 	However, as we
concluded in Phillips, the right to confront witnesses whose statements form the basis
of a district court’s revocation of a defendant’s probation is implicit in the Due
Process Clause of the Fourteenth Amendment, and it is that constitutional authority
that governs the propriety of admitting hearsay evidence in support of revocation at
probation revocation hearings. See Phillips, 2006-NMCA-001, ¶¶ 12, 16.
PRESERVATION
{11} 	Against that backdrop, we must address the State’s argument that Defendant did
not adequately raise the issue in district court for purposes of preservation. “In order
to preserve an error for appeal, it is essential that the ground or grounds of the
objection or motion be made with sufficient specificity to alert the mind of the trial
court to the claimed error or errors, and that a ruling thereon then be invoked.” State
v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (internal quotation
marks 	and 	citation 	omitted). 	Our 	question 	therefore 	becomes 	whether 	the
constitutional and hearsay objections that Defendant raised at the hearing were
sufficiently specific to alert the mind of the district court to the due process right to
confrontation issue that Defendant now argues on appeal, thereby adequately invoking
a ruling.

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{12} 	As discussed above, and as Defendant concedes in his brief in chief, the
constitutional right to confrontation at issue in this case flows from the Fourteenth
Amendment, not the Sixth Amendment. 	The State therefore argues that, although
Defendant adequately preserved a Sixth Amendment Confrontation Clause argument,
he failed to preserve the Fourteenth Amendment due process argument, based on
Phillips, that he now raises on appeal. In support of its argument, the State contends
that all of Defendant’s objections were expressly couched in terms of his inapplicable
rights under the Sixth Amendment. Defendant, on the other hand, points our attention
to the “confrontation objection” that his counsel “made more generally under the
United States Constitution” in closing argument.
{13} 	Although our review of the audio recording of Defendant’s probation
revocation hearing confirms the State’s contention that Defendant initially made only
a Sixth Amendment constitutional objection, it also reveals that Defendant did,
indeed, make a more general constitutional argument regarding confrontation in his
closing statement. Specifically, Defendant referred to his right “to cross-examine and
confront all the witnesses against him” as well as the “clear and established case law”
that establishes such a right. Indeed, Defendant’s argument could have been made
more artfully, and this problem could have been entirely avoided had Defendant

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specifically structured his argument in terms of due process. 	However, although
Phillips is clear in its holding that the Fourteenth Amendment and not the Sixth
Amendment is at issue, the language of Phillips is not at all times clear as to the type
of argument a defendant needs to make. For instance, Phillips speaks in general terms
at the beginning of the opinion that its holding is “that [the d]efendant’s right to
confront the witnesses against him was violated.” Phillips, 2006-NMCA-001, ¶ 2. In
addition, the section of Phillips that discusses due process requirements is labeled
“The Confrontation Clause and Admissibility of Evidence.” Id. ¶¶ 11-16. Due to this
lack of clarity, we will not punish Defendant for his failure to articulate the terms
“Fourteenth Amendment,” “due process,” or “Phillips” in his objections when his
claimed error of a lack of confrontation was generally argued before the district court.
See Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 540-41, 893 P.2d 428, 436-37
(1995) (accepting the sufficiency of the plaintiffs’ due process arguments even though
they “were not a model of clarity, and certainly could have been made with more
specificity,” and stating that “[t]he rules that govern the preservation of error for
appellate review are not an end in themselves, rather they are instruments for doing
justice”). We intend this opinion to correct this lack of clarity.
GOOD CAUSE EXCEPTION

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{14} 	Because we conclude that Defendant adequately preserved his argument for
appeal, we must next apply the rule in Phillips to his case. Defendant argues, and we
agree, that Phillips mandates the district court to make a specific finding of good
cause for not requiring confrontation before revoking a defendant’s probation based
on hearsay testimony. See Phillips, 2006-NMCA-001, ¶ 14. As we read Phillips, the
district court may make this finding by (1) specifically addressing the State’s
problems in securing the presence of the absent witness or (2) specifically stating the
reasons that the hearsay evidence offered has particular indicia of accuracy and
reliability such that it has probative value. See id. ¶¶ 16-17.
{15} 	In this case, the district court did not address Ms. Chavez’s absence. 	It stated
that the evidence was “probative of the fact” of Defendant’s probation violation and
that the “filings” in the case showed that Defendant had not successfully completed
the residential treatment program. Although these statements concerning the evidence
bear on the issue of good cause, they are merely conclusions; they do not specifically
state the reasons that the evidence was sufficiently accurate or reliable so as to excuse
the presence of Ms. Chavez. 	Cf. State v. Scurry, 2007-NMCA-064, ¶¶ 12, 14, 141
N.M. 591, 158 P.3d 1034 (holding, with regard to the need for a specific finding of
a serious violent offense to satisfy the Earned Meritorious Deductions Act, that the

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district court’s findings need to sufficiently justify and specifically indicate the basis
for its conclusions). 	They are therefore insufficient to satisfy the “good cause”
requirement of Phillips. As a result, because the district court did not properly apply
the due process standard of Phillips, we reverse the revocation of Defendant’s
probation and remand to the district court to conduct further proceedings that meet
this standard.
{16} 	Because we remand, we take this opportunity to clarify Phillips as it may apply
to the record in this case. 	In particular, we address our declination in Phillips to
consider the force of the business records exception in that case.
{17} 	In Phillips, the probation officer testified by reading from unauthenticated
documents in the probation file. 	Phillips, 2006-NMCA-001, ¶ 1. 	The probation
officer said that she was the custodian of the records and that they were “kept in the
ordinary course of business.” 	Id. ¶ 8 (internal quotation marks omitted). 	The
documents included notations from another probation officer and documents likely
from the probation department in Arizona, which had responsibility of Defendant. Id.
¶¶ 4, 6. 	The probation file also included documents ascribed to “Myrna” without
indicating Myrna’s relationship to the case or the reason for her providing documents
to the probation officer. Id. ¶ 13.

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{18} 	We did not address the admissibility of the documents in the probation officer’s
file in Phillips under the business records exception, Rule 11-803(F) NMRA, focusing
instead on the due process concerns of revoking probation based entirely upon the
probation officer’s reading of documents “prepared and given to her by other persons
without any showing or finding of good cause for not calling those people as
witnesses.” Phillips, 2006-NMCA-001, ¶¶ 2, 11 (“[T]he question before us is not so
much whether the testimony fell under the business records exception, but whether,
in this informal environment, [the d]efendant was afforded minimum due process.”
(citation omitted)). Ultimately, when we analyzed the evidence in Phillips, we held
that the state did not meet its burden of establishing a probation violation with
reasonable certainty. Id. ¶ 17. We stated, quoting State v. Vigil, 97 N.M. 749, 753,
643 P.2d 618, 622 (Ct. App. 1982), “[w]hile some hearsay is permissible in a
probation revocation hearing, when that hearsay is ‘untested for accuracy or
reliability, [it] lacks probative value; the result is that the revocation of probation does
not rest on a verified fact.” 	Phillips, 2006-NMCA-001, ¶ 17 (second alteration in
original).
{19} 	In Vigil, we held that the hearsay statement of a confidential informant, as
testified to by a detective and as contained in a probation officer’s report, was

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insufficient to support a probation revocation. 97 N.M. at 753, 643 P.2d at 622. The
hearsay was untested for accuracy or reliability and therefore lacked probative value.
Id. Yet we recognized that hearsay may have probative value based on its “rational
persuasive power.” Id. at 752, 643 P.2d at 621. Indeed, we specifically recognized
that hearsay may be considered in probation revocation hearings “if of probative
value, even though it may be in the form of letters, reports of probation officers and
similar matter.” Id. (internal quotation marks and citation omitted).
{20} 	In the context of the proper use of probative hearsay evidence in a probation
revocation 	hearing, 	the 	requirement 	of 	“good 	cause” 	to 	relax 	the 	need 	for
confrontation also focuses upon the need for accurate or reliable evidence. 	The
district court must balance the difficulty in obtaining the witness in question along
with the probative value of the evidence without the witness. See id. The weaker the
probative value, the greater the need for confrontation, and, hence, the greater the need
to justify the absence of the witness. The stronger the probative value, the lesser the
needs of confrontation and justification. 	Indeed, with a showing of sufficiently
probative or reliable hearsay evidence, there is no need to show good cause for the
absence of the witness. See id. at 751-53, 643 P.2d at 620-22 (stating that the district
court must specifically find good cause for not allowing confrontation and noting that

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hearsay evidence without confrontation is sufficient if of probative value).
{21} 	Business records can be sufficiently reliable to support a probation revocation.
See Robinson v. Cox, 77 N.M. 55, 59-60, 419 P.2d 253, 256-57 (1966) (upholding
parole revocation based on sole evidence of letter). 	To be sure, the indicia of
reliability of particular business records give rise to the very reason that they are
admissible as an exception to the rule that hearsay is inadmissible. 	See State v.
Christian, 119 N.M. 776, 779, 895 P.2d 676, 679 (Ct. App. 1995) (“The reliability of
business records is usually premised upon routine, trusted patterns of record
generation and the confidence engendered by showing that a particular record is
created and maintained in conformity with that routine.”). In Phillips, although we
did not directly address the reliability of the probation officer’s file, there were
significant questions raised as to its reliability. See Phillips, 2006-NMCA-001, ¶¶ 18-
21. However, we do not wish to foreclose the district court, in this or other cases,
from analyzing the documents before it in order to ascertain whether they are
sufficiently probative so as to enable it to find good cause for not requiring
confrontation.
CONCLUSION
{22} 	We reverse the district court’s revocation of Defendant’s probation and remand

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for further proceedings in accordance with this opinion.
{23} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Chief Judge
_________________________________
MICHAEL D. BUSTAMANTE, Judge