FROM THE CRAWFORD COUNTY CIRCUIT COURT [NOS. 17CR-14-17,
17CR-14-39, 17CR14-211] HONORABLE MICHAEL MEDLOCK, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson, Ass't
Att'y Gen., for appellee.
Ellis Lee Brisher appeals from the Crawford County Circuit
Court's revocation of his suspended imposition of
sentence (SIS), for which he was sentenced to six years'
imprisonment. On appeal, Brisher argues that the circuit
court violated the confrontation clause by allowing the
police officers' testimony that the confidential
informant had identified Brisher as the person who delivered
oxycodone. We reverse and remand.
April 18, 2014, Brisher pled guilty in case number 17CR-14-17
to fleeing in a vehicle, fleeing on foot, and driving on a
suspended or revoked license. He was sentenced to six
years' SIS. On May 19, 2015, the State filed a petition
to revoke Brisher's SIS in case number 17CR-14-17,
alleging that he had violated the terms of his suspension by
committing the new offense of delivery of
revocation hearing held on June 18, 2015, Detective Mark
House with the Van Buren Police Department testified that a
confidential informant had participated in a controlled
purchase of oxycodone from Brisher on January 22, 2015. House
stated that he had searched the informant and his vehicle,
that he had given the informant $100 to buy five pills, and
that he had followed the informant to Brisher's
apartment. House stated that he knew it was Brisher's
residence based on data from the Van Buren Police Department.
House testified that the informant wore a wire and that he
could hear the entire transaction. Following the purchase,
House followed the informant to a predetermined location,
where the informant turned over the wire and the five
oxycodone pills and indicated that it was Brisher who had
sold him the pills. An audio recording of the controlled buy
was played at the hearing and admitted into evidence.
Shawn Firestine with the Crawford County Sheriff's
Department testified that he assisted House during the
controlled buy. Firestine stated that he and House had seen
the informant knocking on the door of Brisher's apartment
as they drove by, although they were not able to see him
enter the residence. However, Firestine testified that they
were able to hear the transaction as it happened.
several occasions during both House's and Firestine's
testimony, Brisher objected to the officers' statements
about what the informant had reported on the basis that it
violated his constitutional right to confront adverse
witnesses. These objections were overruled by the circuit
court. During cross-examination of House and Firestine,
Brisher also asked them to disclose the identity of the
confidential informant. The State objected, and the circuit
court denied Brisher's requests without explanation. The
informant did not testify, and at the conclusion of the
hearing, Brisher again raised his confrontation-clause
objection, which was denied. The circuit court found that
Brisher had violated the terms of his SIS by committing the
offense of delivery of oxycodone and sentenced him to six
years' imprisonment. He filed a timely notice of appeal
from the June 25, 2015 sentencing order.
sole argument on appeal, Brisher argues that the circuit
court violated the confrontation clause by allowing Detective
House and Captain Firestine to testify that the informant had
identified Brisher as the person who had delivered the
oxycodone, when the informant did not testify at the hearing.
Even though in a revocation hearing a defendant is not
entitled to the full panoply of rights that attend a criminal
prosecution, he is entitled to due process. Goforth v.
State, 27 Ark.App. 150, 767 S.W.2d 537 (1989). As we
recognized in Goforth, the United States Supreme
Court has held that a defendant is entitled to the right to
confront and cross-examine adverse witnesses unless good
cause is shown for not allowing confrontation. Id.
at 152, 767 S.W.2d at 538 (citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973)). This holding has
been codified at Arkansas Code Annotated section
16-93-307(c)(1) (Supp. 2015), which states that "[t]he
defendant has the right to counsel and to confront and
cross-examine an adverse witness unless the court
specifically finds good cause for not allowing
Goforth, we stated that in a revocation proceeding,
the trial court must balance the defendant's right to
confront witnesses against the grounds asserted by the State
for not requiring confrontation. Id. (citing
United States v. Bell, 785 F.2d 640 (8th Cir.
1986)). The trial court should first assess the explanation
the State offers for why confrontation is undesirable or
impractical. Id. A second factor that should be
considered is the reliability of the evidence that the
government offers in place of live testimony. Id. We
reversed the revocation of the defendant's probation in
Goforth based on the trial court's failure to
follow this procedure and to assess whether there was good
cause for not requiring the adverse witness to testify.
as Brisher asserts, there was no explanation offered by the
State for why the informant was not available to be
confronted. The circuit court denied Brisher's
confrontation-clause objections without explaining the basis
for its ruling. When Brisher inquired as to the name of the
informant, the State merely stated, "Objection."
The circuit court then denied Brisher's request, again
without any explanation.
State contends that it can be "inferred" from the
testimony at the hearing that it would have been impractical
to require the informant to testify because he was still
working for the police. However, the State never offered this
explanation at the hearing, and the circuit court never found
that there was good cause for not requiring the informant to
testify. There was also no argument by the State that the
officers' testimony had some indicia of reliability.
Thus, pursuant to Goforth, supra, and
Arkansas Code Annotated section 16-93-307(c)(1), Brisher is
correct that the circuit court violated his right of
confrontation by admitting the officers' testimony
regarding statements made by the confidential informant.
State further argues that, even if there was error by the
circuit court, it was harmless under the facts in this case.
As the State asserts, error involving the Sixth Amendment
right to confront witnesses is subject to a harmless-error
analysis. Ryan v. State, 2016 Ark.App. 105, 484
S.W.3d 689. Whether a confrontation-clause violation is
harmless error depends on a variety of factors, including
"the importance of the witness's testimony in the
State's case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or
contradicting the testimony of the witness on ...