August 24, 2019

Colorado Court of Appeals: Trial Court Violated Defendant’s Fifth Amendment Right Against Self-Incrimination by Requiring Offense-Specific Treatment

The Colorado Court of Appeals issued its opinion in People v. Ruch on Thursday, June 20, 2013.

Probation—Revocation—Stalking—Right to Counsel—Fifth Amendment—Counseling—Hearsay—Notice.

Defendant Carl Daniel Ruch appealed the trial court’s judgment revoking his probation. The case was remanded with directions.

In 2007, Ruch was charged with sexual assault on a child by one in a position of trust and harassment—stalking (emotional distress). Following a jury trial, Ruch was acquitted of the sexual assault charge, but was found guilty of stalking. The trial court sentenced Ruch to six years of intensive supervised probation. In January 2010, Ruch’s probation officer filed a special report in the trial court requesting that Ruch be ordered to comply with additional terms of probation typically imposed on sex offenders, which was granted by the court against Ruch’s objection and assertion of his Fifth Amendment rights.

On appeal, Ruch asserted that the trial court violated his right to counsel when it required him to choose between continuing with his appointed counsel or proceeding pro seto renew his request for a continuance to allow him to seek private counsel. The trial court did not abuse its discretion by denying Ruch’s request for a continuance after previously allowing five continuances for Ruch to find private counsel and no evidence to support Ruch’s ineffective assistance of counsel allegations against his public defender.

Ruch also asserted that the trial court erred in finding that he had changed residences without the approval of his probation officer. Hearsay evidence is admissible in probation revocation proceedings; however, it is only admissible if the defendant has a fair hearing and is afforded the opportunity to rebut the hearsay evidence. Here, the amended probation revocation complaint stated that Ruch’s roommate was the declarant of the incriminating information. Accordingly, Ruch had notice of the declarant’s identity and the content of the hearsay. Thus, Ruch had sufficient information to allow him to effectively rebut the hearsay testimony through cross-examination or presentation of his own witnesses. Therefore, the triple hearsay evidence was sufficient to prove, by a preponderance of the evidence, that Ruch changed residences without obtaining permission from his probation officer.

Ruch further asserted that the trial court erred by revoking his probation based on his refusal to attend offense-specific treatment (counseling). By requiring Ruch to attend counseling while his appeal was pending, the trial court violated his Fifth Amendment right against self-incrimination, which he expressly invoked and did not waive. The trial court could have properly revoked Ruch’s probation based on his failure to (1) contact his probation officer at the times and places specified by the officer, (2) receive approval from his probation officer before changing his residence, and (3) sign releases of information to allow his probation officer to communicate with members of the community supervision team. However, the record is not clear whether the trial court would have revoked Ruch’s probation and imposed the same sentence based on these three violations alone. Accordingly, the case was remanded for further findings.

Summary and full case available here.

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