The SCOW docket: No hearsay exception in revocation proceedings for victim's out-of-court statement

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.

Case: State ex rel. Wisconsin Department of Corrections, Division of Community Corrections v. Hayes

Walsh Bradley

Majority: Justice Ann Walsh Bradley (14 pages), joined by Chief Justice Jill J. Karofsky and Justices Rebecca Dallet, Brian Hagedorn, and Janet C. Protasiewicz

Concurrence: Justice Annette Ziegler (2 pages)

Dissent: Justice Rebecca Grassl Bradley (6 pages)

Upshot

The Supreme Court upheld an administrative decision not to revoke probation based on the agency administrator's determination that the Department of Corrections failed to show good cause to overcome the probationer's due process right to confront an adverse witness, and that without the witness' hearsay statement the evidence was insufficient.

We conclude that under the certiorari standard of review, the administrator’s decision must be upheld because it is supported by substantial evidence and was made according to law.
 
Background

In February of 2019, Keyo Sellers was convicted of a drug offense and later placed on probation. DOC sought to revoke his probation in March of 2022 based on five alleged violations of the conditions of probation. Specifically, DOC alleged that Sellers: (1) entered K.A.B.’s home without her consent, (2) sexually assaulted K.A.B., (3) took $30 from K.A.B. without her consent, (4) subsequently trespassed on K.A.B.’s property by walking onto her porch and looking through the windows without her consent, and (5) provided false information to his probation agent.

Sellers stipulated to the fifth alleged violation, and a revocation hearing on the remaining four allegations proceeded before an ALJ.  Notably, . . . DOC did not present K.A.B. as a witness. Instead, DOC attempted to admit her testimony by other means, including a written statement provided by K.A.B. and the testimony of a police officer who interviewed her. Sellers’s probation agent explained the decision not to subpoena K.A.B. as follows:  “[S]he told the police and she’s told me she can’t 100% ID her assailant,” so the agent “didn’t feel it was necessary to have her come in and provide testimony and go through the trauma of her assault to only say that she believes that Mr. Sellers could be the assailant, but she doesn’t know 100%.”
 
DOC presented live testimony from three witnesses at the revocation hearing: the police officer who investigated K.A.B.’s report of sexual assault and burglary, an analyst from the state crime laboratory, and Sellers’s probation agent. The officer testified regarding his interaction with K.A.B. and relayed what she had reported to law enforcement. He stated that K.A.B. had installed security cameras after the attack, which “almost a week to the day of the original assault” recorded a man “on her front porch prowling and peering into her front living room window.” Further, the officer testified that facial recognition software had been used on that security camera footage, leading him to Sellers after the software indicated a match.

Several physical features of the person in the security video matched Sellers. Although K.A.B. could not identify Sellers with certainty, the officer interviewed Sellers’s ex-wife, who according to the officer’s testimony was “absolutely sure” that the man in the video was Sellers.
 
The crime lab analyst testified that she completed DNA testing on evidence collected from the scene and from a sexual assault examination of K.A.B. She testified that the sample collected was “consistent” with Sellers’s profile, but admitted on cross-examination that the profile would also occur in “approximately one in every 278 African American individuals.” Based on census data, this means that the profile would match 389 people in the City of Milwaukee.
 
Finally, Sellers’s probation agent testified that . . . she viewed the security camera footage and was 99 percent sure that the man in the video was Sellers “based on his appearance, based on his walk, and based on the fact that I’ve supervised him, you know, for almost 18 months.”

Sellers did not testify at the revocation hearing but provided a written statement that is in the record. He stated that he has “never been on [K.A.B.’s] property or in the property,” he is not the person in the video and he “did not sexually assault anyone.”
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The ALJ revoked Sellers’ probation, concluding that the first four allegations had been established by a preponderance of the evidence, and determined that incarceration was appropriate. 

Sellers appealed the ALJ’s decision to Administrator Brian Hayes. Hayes described K.A.B.’s account of the events as “critical to the DOC’s allegations,” found that reliance on K.A.B.’s “hearsay account" violated Sellers’ constitutional right to due process, and that without K.A.B.’s hearsay statements there was insufficient evidence on the four charges. Hayes found that for the stipulated violation of providing false information to the probation agent, revocation and confinement were not appropriate. 
 
The DOC sought certiorari review in circuit court. That court reversed Hayes' decision, but Hayes successfully appealed to the Court of Appeals. The DOC then took the case to the Supreme Court, which heard oral arguments in March.

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Guts
 
Our review is limited to (1) whether the administrator kept within his jurisdiction; (2) whether the decision was according to law; (3) whether the administrator’s action was arbitrary, oppressive or unreasonable and represented his will and not his judgment; and (4) whether the evidence was such that the administrator might reasonably make the order or determination in question.

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In regard to DOC's argument that evidence other than K.A.B.'s hearsay statement supported revocation under the fourth prong above, DOC asserts that the administrator ignored crucial non-hearsay evidence showing that Sellers committed the rule violations in question. Specifically, DOC contends that the administrator ignored two key pieces of evidence: (1) the DNA evidence and (2) the security camera footage.

We are not persuaded by DOC’s argument. In essence, DOC asks us to weigh the evidence differently than did the administrator, which would contravene our established standard of review. Reasonable minds could arrive at the conclusion that the DNA evidence was far from airtight and did not weigh heavily (or at all) in DOC’s favor. DOC asks us to adopt the position of the ALJ, who weighed this evidence more heavily. Yet, the ALJ made a logical leap when she found that a DNA profile “consistent with Mr. Sellers” and almost 400 other men in Milwaukee meant that “Mr. Sellers’ DNA” was in fact “on K.A.B.” Reasonable minds could weigh this evidence less heavily, as the administrator did.
 
Next, we turn to the security camera footage. Even assuming that the man in the video was Sellers, it was not unreasonable to conclude that the footage on its own did not establish every element of the alleged violations or tie the person in the footage to the earlier offenses. Indeed, as the court of appeals determined, it was reasonable to conclude that K.A.B.’s testimony “was necessary for DOC to prove all the elements of the alleged probation violations (e.g., non-consent, and that the person on the porch was also the person who sexually assaulted K.A.B.).”
 
It is DOC who has the burden to prove an alleged probation violation by a preponderance of the evidence. There is a reasonable view of the evidence under which DOC has not met that burden and could not meet that burden without K.A.B.’s hearsay statements. In other words, given the evidence before him, the administrator’s determination was reasonable. Even if there is evidence supporting a contrary determination, we must affirm the administrator’s decision if substantial evidence supports the decision.

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The Court next turned to DOC's argument that good cause existed to overcome Sellers’ due process right to confront adverse witnesses and allow the hearsay testimony under the second or third prongs of the standard of review noted above. 

It is well-established that revocation of probation implicates a probationer’s protected liberty interest. Although a probationer is entitled to due process of law before probation may be revoked, a probationer is not entitled to the full panoply of legal rights accorded to those subject to criminal process.

Among the “minimum requirements of due process” that must be afforded to probationers is “the right to confront and cross- examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Such a procedure serves to “protect the defendant against revocation of probation in a constitutionally unfair manner.”

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In the present case, we have no information in the record regarding any barriers to obtaining K.A.B.’s live testimony. The record reflects that the probation agent was concerned about retraumatizing her: “I didn’t feel it was necessary to have her come in and provide testimony and go through the trauma of her assault to only say that she believes that Mr. Sellers could be the assailant, but she doesn’t know 100%.” While retraumatization is certainly a serious concern, there is no indication in the record that K.A.B. herself was concerned about retraumatization or whether the agent even discussed this with her. With no specific information in the record, to accept DOC’s argument would establish a per se “retraumatization” exception to hearsay that could be asserted in every case. This would be a sea change in the law and we decline to adopt it here.

There is likewise no testimony in this record from any source regarding any other “difficulty” or “expense” that K.A.B.’s testimony would have entailed. Absent any testimony on these factors that is specific to this victim, it was reasonable for the administrator to conclude, as he did, that “there was no basis to find that there was any ‘difficulty, expense, or other barriers to obtaining live testimony’ of K.A.B., which is fatal to this particular good cause test.” Because the administrator properly applied the balancing test, his determination was made according to law.

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DOC makes no detailed argument here that K.A.B.’s statement is accompanied by sufficient indicia of reliability so as to be admissible under the residual exception in the rules of evidence. In briefing, it contends that K.A.B.’s statements have “circumstantial guarantees of trustworthiness” based on corroboration by the non-hearsay evidence referenced above. But as explained, the non-hearsay evidence is not particularly strong. Given this, and given the rarity with which the residual exception is intended to be used, we cannot say that rejecting the residual exception here was an erroneous exercise of discretion. Because the administrator did not erroneously exercise his discretion in excluding the hearsay testimony, we determine that his decision that good cause was not present was made according to law.

Ziegler

Concurrence
 
I agree with the majority that the administrator’s decision in this case is supported by substantial evidence. The standard we must apply on certiorari review is whether the administrator’s decision is invalid, not whether we like it or agree with it. Although the dissent’s arguments that the administrator’s decision is not supported by substantial evidence are not without some force, the standard we must apply requires that we review the evidence to determine whether the administrator could reasonably make the decision he made. To be clear, the administrator likely could have made the opposite determination, and if the administrator had done so, we likely would have held that there is substantial evidence supporting that decision.

I am unwilling, however, to join the majority’s conclusion that the second issue in this case—whether the administrator erred by excluding hearsay testimony—is simply a question of whether the administrator acted “according to law.” It may also be appropriate, given the petitioner’s arguments, to review the issue under the third certiorari prong, which asks “whether [the administrator’s] action was arbitrary, oppressive, or unreasonable and represented [his] will and not [his] judgment.”

Accordingly, I concur, but I do not join the majority opinion.

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Grassl Bradley

Dissent
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Administrative Law Judge Martha Carlson presided over the revocation hearing and determined that DOC established each of the allegations by a preponderance of the evidence. Among other evidence, she relied on the DNA match and the lack of any “credible explanation for why Mr. Sellers’ DNA would be on K.A.B. but for the assault.” She also relied on the video footage showing Sellers on the victim’s porch days after the sexual assault. Sellers appealed. In a brief letter, Brian Hayes, the Administrator of the Division of Hearings and Appeals, reversed the ALJ’s decision, citing the inadmissibility of the victim’s hearsay statements. The administrator did not consider whether non-hearsay evidence supported the alleged probation violations.

One year later, the circuit court reversed the administrator’s decision, concluding “[n]on-consent . . . can be proven circumstantially based on the totality of the evidence” and the testimony of the probation agent, the crime lab analyst, and the police officer collectively established the alleged probation violations. Another year later, the court of appeals reversed the circuit court’s decision, deferring to the administrator’s conclusion that the victim’s testimony was necessary to prove the probation violations. Three months later, a jury found Sellers guilty of second-degree sexual assault with the use of force and burglary.

The majority recites the correct standard of review but errs in applying it. The majority deems the administrator’s determination “reasonable” and supported by substantial evidence. It isn’t. Only by ignoring non-hearsay evidence supporting revocation could the administrator reasonably decide not to revoke Sellers’ probation. Even without the victim’s testimony, no reasonable person would decline to revoke Sellers’ probation given the overwhelming evidence to support his multiple violations of the law. The non-hearsay evidence supporting DOC’s first two allegations—Sellers entering K.A.B.’s home without her consent and sexually  assaulting  her—is  enough  to  reverse  the  administrator’s decision. The evidence supporting allegation four—prowling on her property a week later and looking in her windows—refutes Sellers’ claim that he had never been to the victim’s residence. Nevertheless, the administrator maintains that Sellers’ false statement “remains the only non-hearsay account of what Sellers was actually doing.” K.A.B.’s hearsay testimony, however, is not necessary to put two and two together.

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The full picture of what happened should be crystal clear to a reasonable factfinder, even without the victim’s testimony. Law enforcement went to K.A.B.’s house in the early morning hours of September 15, 2021. After a SANE exam, DNA evidence of another person was recovered from K.A.B.’s body. Within days, surveillance cameras were installed at K.A.B.’s home. Law enforcement returned to K.A.B.’s house a week later on September 22, 2021. Surveillance footage was recovered showing a man outside the home shortly after midnight. At least two individuals familiar with Sellers identified him in the video footage. Law enforcement used facial recognition software to compare a still shot from the video recording with pictures of Sellers, which yielded similarity ratings of 98.2%, 92.7%, and 85.5%. These non-hearsay facts are more than enough to justify revocation of Sellers’ probation. Based on the non-hearsay evidence alone, confinement was necessary to protect the public from further criminal activity by him. The administrator erred in ignoring all of it and in concluding DOC failed to support its request for revocation.

The administrator seemed to render a decision under the misapprehension that direct evidence was necessary to support DOC’s allegations against Sellers, declaring that “K.A.B.’s account of the events is critical to DOC’s allegations.” Under fundamental and longstanding law governing the admission of evidence in a criminal case, the administrator was plainly wrong. Decades ago, this court explained that circumstantial evidence commonly supports a conviction, and may be more convincing than direct evidence; this is particularly true when the victim, like K.A.B., cannot positively identify the perpetrator . . . .

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Uncontroverted, non-hearsay evidence places Sellers on K.A.B.’s porch one week after she was sexually assaulted, but the majority posits it is somehow reasonable to pin the assault on one of “almost 400 other men in Milwaukee [with a DNA profile consistent with Mr. Sellers]” instead of Sellers. The majority peddles incredible conjectures in its mission to declare the administrator’s determination reasonable, but in reaching for reasons to defend an insupportable decision, the majority teeters toward absurdity. While it is possible a different person sexually assaulted K.A.B., all of the evidence points to the same man who was caught on camera peeping into her home a week later. A reasonable person would reject the possibility of another person matching Sellers’ DNA profile assaulting K.A.B. the week before Sellers trespassed on her property.
 
No reasonable factfinder could conclude DOC failed to show by a preponderance of the evidence that Sellers trespassed on K.A.B.’s property. Video evidence corroborated by multiple individuals familiar with Sellers’ appearance and posture identified him in the video. Considering his presence at the victim’s home a week after the sexual assault puts the evidence of the assault in its proper context. No reasonable factfinder could conclude DOC failed to prove Sellers invaded the victim’s home, sexually assaulted her, and one week later trespassed on her property. The administrator’s decision to the contrary was not supported by substantial evidence. The majority errs in upholding it.
 
Why the court granted DOC’s petition for review is unclear. The petition did not raise any novel issues of law. In addressing the issues, the majority contributes nothing to the jurisprudence governing revocation proceedings. Instead, the majority conducts the same flawed analysis as the court of appeals, relies upon the same well-established cases the court of appeals applied, and reaches the same conclusion by also deferring to the administrator’s legally deficient decision. The court of appeals issued an unpublished, non-precedential, per curiam opinion. There was no point in taking this case only to repeat the errant work of the court of appeals. In the end, nothing about this case warranted this court’s review. The court should have dismissed the petition as improvidently granted. By issuing a decision, the majority casts a façade of importance over its analysis, despite the opinion signifying nothing. I dissent.

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