‘Reliability of exhibits’ overcomes challenge to probation revocation

The revocation of a Madison County man’s probation was upheld after the Indiana Court of Appeals found the evidence presented to the trial court of his continued drug activity met the test for reliability.

Mark Lee Votra was determined to have violated the terms of his probation on two occasions in early 2018. Elwood Police found Votra had in his possession methamphetamine and cocaine and that his residence contained numerous narcotics and paraphernalia, along with prescription medications.

Votra told officers the Crown Royal bag which contained the methamphetamine had been placed in his jacket pocket by someone else. Also, he claimed the contraband found in the residence did not belong to him.

At his evidentiary hearing, Votra objected to the state introducing Exhibits 1 and 2, which were the probable cause affidavits, but the Madison Circuit Court admitted the exhibits over the objection. The trial court explained that the rules of evidence do not strictly apply on probation violation proceedings and that the exhibits could be admitted because they provided an “adequate indicia of reliability.”     

Votra appealed, arguing, in part, that his right of confrontation was violated when the trial court admitted both exhibits.

The Court of Appeals pointed out Votra did not specify whether he was arguing a right of confrontation based in federal law or a right guaranteed by the Indiana Constitution. However, the appellate panel considered Votra’s claim in terms of the rights conferred under the U.S. Constitution because “Due Process” is found in the 14^th Amendment, but not in the state constitution.

Citing precedent, the Court of Appeals noted that while the Due Process Clause is applicable to parole revocation proceedings, because the proceeding is not part of a criminal prosecution, the full panoply of rights due a defendant is not applicable.

In addition, the Indiana Supreme Court in Reyes v. State, 868 N.E.2d 438 (Ind. 2007), held that the substantial trustworthiness test was the most effective means for determining whether hearsay evidence should be admitted at a probation revocation hearing. The substantial trustworthiness test provides for a trial court determination of whether the evidence reaches “a certain level of reliability, or if it has a substantial guarantee of trustworthiness.”

The Court of Appeals found the admitted evidence met that standard. 

“First, these exhibits are both sworn affidavits signed by the law enforcement officers involved in each of the encounters with Votra. We have held that a probable cause affidavit prepared and signed by an officer under oath bears substantial indicia of reliability,” Senior Judge Carr Darden wrote, referring to Whatley v. State, 847 N.E.2d at 1010 (Ind. Ct. App. 2006). “Furthermore, Votra admitted that he knew there were controlled substances contained in the Crown Royal Bag, and had informed the trial court at his bond reduction hearing that he planned to live with Lorrie Wyatt upon his release from prison. Those acknowledgements add to the reliability of the exhibits. Therefore, Votra’s challenge to the admissibility of those exhibits fails on those grounds.”

The case is Mark Lee Votra v. State of Indiana, 18A-CR-1337.