THE STATE OF
In The Supreme Court
The State of
South Carolina, Petitioner,
Gary Thomas Hill, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
J. C. Buddy Nicholson, Jr., Circuit Court Judge
Opinion No. 26145
Heard March 22, 2006 - Filed May 8, 2006
Deputy Director for Legal Services Teresa A. Knox, Assistant Chief Legal Counsel J. Benjamin Aplin, and Legal Counsel Tommy Evans, Jr., all of South Carolina Department of Probation, Parole & Pardon Services, of Columbia, for Petitioner.
J. Stephen Welch and Adam M. Cain, both of The Welch Law Firm, of
Greenwood, for Respondent.
CHIEF JUSTICE TOAL: The trial court revoked Respondent’s probation after he committed several probation violations. The court of appeals reversed in part, holding that Rule 5, SCRCrimP (titled “Disclosure in Criminal Cases”) and the disclosure rule announced in Brady v. Maryland applied to probation revocation proceedings. The State appealed and we now reverse.
Respondent received a twenty year prison sentence for convictions of second degree arson, second degree burglary, malicious injury to personal property, driving under the influence - fourth offense, and criminal domestic violence - third offense. The trial court suspended the sentence to ten years imprisonment and five years probation. Respondent began his probation in 1997.
Approximately five months before Respondent’s probation was scheduled to end, Respondent’s probation agent received a call from the Department of Social Services alleging that Respondent was in possession of a firearm and had been pointing the weapon at his son. The probation agent contacted Respondent and ordered him to report to the probation office.
While meeting with his probation agent at the probation office, Respondent admitted a .22 caliber rifle was in his home. Respondent alleged the rifle was his son’s and that the son sometimes kept the gun in the house. At the time, Respondent’s son was 11 or 12 years old. The probation agent informed Respondent that he and Respondent would be accompanying some additional probation agents to Respondent’s house, that the agents were going to search the house, and that Respondent would be arrested for violating his probation if the agents discovered any weapons. At that point, Respondent asked to go into the hallway and get a drink of water. The probation agent granted Respondent’s request, and after reaching the water fountain, Respondent ran down the hallway and out of the building. Seeing Respondent’s attempt to escape, the probation agent ordered Respondent to stop.
As the probation agent pursued Respondent, three other agents joined in the pursuit. After exiting the building, Respondent locked himself in his vehicle and attempted to leave the probation office parking lot. The four agents surrounded Respondent’s vehicle, drew their firearms, and ordered Respondent to get out of his vehicle. Respondent, however, started his vehicle and attempted to drive away from the premises. Although at least one agent attempted to prevent Respondent from leaving by standing in front of his vehicle, Respondent continued to drive forward. The agent obstructing Respondent’s exit was able to avoid being struck by Respondent’s vehicle, and at this point, one of the agents began firing his weapon into Respondent’s car. Although Respondent received three gunshot wounds, he managed to drive out of the parking lot and escape. Respondent was arrested later at the emergency room.
The State charged Respondent with violating his probation by possessing a firearm, failing to obey his probation agent’s commands, and failing to avoid injurious habits by attempting to run over a probation agent with his car. Prior to Respondent’s revocation proceeding, Respondent served his probation agent with a request for disclosure of information pursuant to Rule 5 and Brady. At some point, Respondent filed a motion to continue the revocation proceeding because his probation agent refused to comply with the disclosure requests.
At the hearing on Respondent’s motion for a continuance, the court addressed Respondent’s Brady and Rule 5 requests. In a reference to S.C. Code Ann. § 24-21-290 (Supp. 2005) (titled “Information received by probation agents privileged”), the court advised that a statute provided for the confidentiality of the department of probation’s records unless they are ordered disclosed by the court. The court instructed Respondent to bring a motion under § 24-21-290 if he was indeed seeking the probation agent’s file. Respondent, however, filed no additional motions or requests. The trial court held Respondent’s probation revocation proceeding approximately one month later, and at the conclusion of the proceeding, the court revoked Respondent’s probation and sentenced him to seven years imprisonment.
Respondent moved for reconsideration, arguing that the police report covering his escape from the probation office was unfinished at the time of his probation revocation proceeding and that the final police report contained mitigating evidence. During the hearing on Respondent’s motion for reconsideration, Respondent alleged he did not intend to harm any of the probation agents and that the probation agents were not in any danger of sustaining serious injury during his escape attempt. After hearing Respondent’s offered evidence, including testimony from Respondent himself, the court denied Respondent’s motion. Respondent appealed.
The court of appeals affirmed the trial court’s decision on two issues not related to this appeal, but the court reversed the revocation of Respondent’s probation. The court of appeals held that Brady and Rule 5 applied to probation revocation proceedings because South Carolina courts had extended these rules “beyond criminal trial proceedings” and because a probation revocation proceeding involves a determination of guilt. Hill, 359 S.C. at 312-3, 597 S.E.2d at 828-29.
The State argued that even if Brady and Rule 5 applied, Respondent’s due process rights were not violated because Respondent eventually received the requested information, presented the information at his motion for a new trial, and the trial court affirmed its decision. Disagreeing, the court of appeals stated “[h]aving already found [Respondent] violated his probation . . . we believe it would have been difficult for the court to be completely objective during the subsequent proceeding. Thus we find the information was material and the failure to disclose it deprived [Respondent] of a fair hearing.”
This Court granted certiorari to review the court of appeals’ decision and the State raises the following issues for review:
I. Did the court of appeals err in extending Brady and Rule 5 to probation revocation proceedings? II. If Brady and Rule 5 apply to probation revocation proceedings, did the State violate either rule?
I. Brady and Rule 5’s Applicability to Probation Revocation
The issues of whether the specific requirements of Brady and Rule 5 apply to probation revocation proceedings are novel questions in
Brady provides that a criminal defendant is denied due process when the prosecution suppresses evidence that is favorable to him. Brady v.
Although Brady provides a bright-line rule for the disclosure requirements necessary to guarantee that a criminal defendant receives due process, it is equally fundamental that due process requirements are not rigid and inflexible. Mathews v. Eldridge, 424
In Morrissey v. Brewer, 408
Importantly, the court in Morrissey left the states with the responsibility of determining the exact procedures to be followed.
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the United States Supreme Court dealt with whether due process required that a probation violator be given a hearing before his probation was revoked. In Gagnon, the court drew almost exclusively from its opinion in Morrissey; relying heavily on the “limited liberty” interest subject to deprivation in the probation and parole setting. Gagnon, 411
Additionally, the court further elaborated on the differences between criminal trials and probation revocation proceedings. For example, the court advised that a probation agent’s function is not to compel conformance to a strict code of behavior, but rather, to supervise a course of rehabilitation.
This broad framework, supplied by the United States Supreme Court’s interpretation of federal due process guarantees, is somewhat amorphous. Morrissey and Gagnon establish that a probationer charged with a violation must be afforded minimal due process. This allows us to re-phrase the question presented to read: “does minimal due process require that Brady be extended to probation revocation proceedings?” We conclude that the court of appeals erred in answering “yes.” Both reasons provided by the court of appeals for applying Brady are fundamentally incorrect.
First, the court of appeals reasoned that the differences between a criminal trial and a revocation proceeding were irrelevant to the issue because
Second, the court of appeals erred in reasoning that “[s]imilar to a sentencing or guilty plea proceeding, a probation revocation proceeding involves a determination of guilt.”
We hold that Brady’s rule should not, and indeed, cannot be applied to probation revocation proceedings. Brady’s requirement that evidence favorable to the accused be disclosed is necessary in criminal trials because a criminal conviction is a determination of guilt beyond a reasonable doubt. Brady is based on the premise that the suppression of evidence that is material to guilt or punishment casts the reliability of the verdict into doubt; therefore, the guilt standard cannot have been met. In contrast, probation revocation proceedings have a much lower evidentiary threshold. Instead of requiring proof beyond a reasonable doubt, probation is properly revoked upon an evidentiary showing of facts tending to establish a violation.
Our opinion in Franks provides the guiding principle for this case: while the underlying probation violations may be criminal offenses, the probation revocation proceeding is not a criminal trial of those charges. 276 S.C. at 638, 281 S.E.2d at 228. In
Because they are fundamentally different from a criminal trial and other pre-sentencing proceedings, we decline to extend the Brady rule to probation revocation proceedings. The relevant precedent, particularly Gagnon, Morrissey, and Franks, already require that a probationer be afforded reasonable discovery. Accordingly, we reverse the court of appeals’ decision.
B. Rule 5, SCRCrimP
Rule 5, SCRCrimP, provides for the disclosure of evidence in criminal cases. We hold that Rule 5 does not apply to probation revocation proceedings because these proceedings are not criminal trials.
Morrissey and Gagnon outline the boundaries beyond which the scope of discovery in these “limited liberty” cases may not be restricted. Specifically, these cases indicate that minimal due process requires that a probationer be given notice of the alleged violations and disclosure of the evidence against him. Gagnon, 411
Additionally, § 24-21-290 further supports the position that Rule 5 should not apply to probation revocation proceedings. If the probation agent was, as a matter of rule, required to disclose his file, the confidentiality statute would be meaningless.
For these reasons, we hold that Rule 5 is irrelevant in this context and does not apply to probation revocation proceedings.
II. Reversible Error
The State argues the court of appeals erred in finding Brady and Rule 5 violations because the court based its harmless error analysis entirely on speculation. We agree. Though we need not address this issue because we have held that Brady and Rule 5 do not apply to probation revocation proceedings, we take this opportunity to both clarify what constitutes reversible error under Brady and correct an egregious error in the lower court’s opinion.
Determining whether evidence withheld by the state is “material” under Brady turns on whether the cumulative effect of the withheld evidence results in a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Kyles v. Whitley, 514
In reversing the revocation of Respondent’s probation, the court of appeals, under the guise of a harmless error analysis, stated “[h]aving already found [Respondent] violated his probation . . . we believe it would have been difficult for the court to be completely objective during the subsequent proceeding. Thus we find the information was material and the failure to disclose it deprived [Respondent] of a fair hearing.”
Additionally, this analysis ignores the fact that the trial court heard Respondent’s after acquired evidence and affirmed its original decision. Because the trial court affirmed its decision after hearing this evidence, by the very definition, any error in failing to disclose the evidence was harmless error. See State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1993) (stating that error is harmless if it could not reasonably have affected the result of trial).
For the foregoing reasons, we reverse the court of appeals’ decision holding that Rule 5 and Brady apply to probation revocation proceedings and finding violations of both.
MOORE, WALLER and BURNETT, JJ., concur. PLEICONES, J., concurring separately.
JUSTICE PLEICONES: I concur in the majority’s decision to reverse the Court of Appeals’ decision. I write separately, however, because in my opinion neither the Rule 5 issue nor the Brady issue was preserved for appeal. The circuit court did not rule on either claim, instead directing Respondent to file a motion under S.C. Code Ann. § 24-21-290 (Supp. 2005). Respondent neither objected to this ruling nor filed a motion pursuant to the statute. Accordingly, no issue involving Respondent’s discovery request was preserved for appellate review, and the Court of Appeals erred in addressing the merits of Respondent’s appeal. E.g., State v.
 Brady v.
 After the court revoked his probation, Respondent served the Tenth Circuit Solicitor’s Office with Brady and Rule 5 requests. These requests, however, are not the subject of this appeal.
 The version of the statute appearing in the 2005 code supplement is identical to the version in effect at all times relevant to this case.
 Respondent obtained the police report in response to subpoenas he served on the South Carolina Law Enforcement Division (SLED) and the Tenth Circuit Solicitor’s Office.
 At the beginning of the hearing, the trial court asked Respondent whether he was introducing mitigating evidence or offering evidence disputing facts that were already determined. Because Respondent indicated he sought to dispute the fact that he intended to harm any of the probation agents during his escape, Respondent specified that his motion was a motion for a new trial.
 These issues involved 42 U.S.C. § 1983 and Rules 28 and 29, SCRCrimP. The court of appeals found these issues were not preserved for review. State v. Hill, 359 S.C. 301, 315-16, 597 S.E.2d 822, 830 (Ct. App. 2004).
Additionally, at first glance, Gagnon’s resolution of the right to counsel issue appears to be at odds with Mempa v.
 In other circumstances, § 24-21-290 (providing that a probation agent’s file is privileged) could prove critical to a due process analysis. For example, during oral argument, Respondent constructed a hypothetical case in which, while charging a probationer with violating his probation by using illegal drugs, the probation office possessed a negative drug test for the probationer. Respondent alleged that failing to extend Brady to revocation proceedings would operate to suppress the exculpatory drug test. This hypothetical is not instructive. The hypothetical improperly presumes (1) that the probation office would seek revocation in the face of a negative drug test, and (2) that the trial court would deny a § 24-21-290 disclosure request. Additionally, since §§ 24-21-290 and 24-21-450 operate to govern discovery in probation revocation cases, any due process challenge to discovery in these cases would necessarily be a challenge to these statutes. Such is not this case.
 Notably, § 24-21-450 only requires the probation agent to submit the violation report to the court. However, the State alleges that this report is given to the probationer before his hearing and Respondent has not contested the State’s assertion in this regard.
 Although we hold that Brady and Rule 5 do not apply to probation revocation proceedings, we question whether holding to the contrary would have any effect on Respondent’s case. Though it is likely that the probation agent’s file eventually contained the SLED and Anderson City Police reports, it is questionable whether these reports were in the agent’s file prior to the probation revocation proceeding. Additionally, we are unsure as to why Respondent chose to seek these reports from his probation agent and not directly from these law enforcement agencies. In most cases, we believe the confidential status of the probation agent’s file works to the probationer’s advantage.
 Like the trial judge, I believe that discovery in probation revocation proceedings is governed, at least in the first instance, by the statute.