'A grand jury may indict on hearsay testimony alone.'
How later courts described this case
- 'A grand jury may indict on hearsay testimony alone.'
Written by the judges who cited it.
The opinion
Rel: December 20, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
_________________________
CR-2024-0472
_________________________
Jackie Lebaron Ruffin, Jr.
v.
State of Alabama
Appeal from Mobile Circuit Court
(CC-23-2548.70, CC-23-2549.70, and CC-22-2607.70)
WINDOM, Presiding Judge.
Jackie Lebaron Ruffin, Jr., appeals the revocation of his probation
by the Mobile Circuit Court.
On May 7, 2024, Ruffin's probation officer filed a delinquency report
alleging that Ruffin had violated the terms and conditions of his
CR-2024-0472
probation by committing the new offenses of third-degree theft,
attempting to elude, first-degree domestic violence (first-degree
burglary), and third-degree domestic violence (third-degree assault).
On May 28, 2024, the circuit court conducted a probation-revocation
hearing. The circuit court opened the hearing by asking Officer Spear of
the Mobile Police Department about which alleged violation he was
prepared to testify; Off. Spear answered that he was prepared to testify
about the domestic-violence allegation. After defense counsel affirmed to
the circuit court that they desired a hearing on the domestic-violence
allegation, the State asked the circuit court to take judicial notice that
the Mobile District Court had found probable cause in Ruffin's
preliminary hearing on the criminal charge underlying the domestic-
violence allegation. The circuit court questioned defense counsel about
the State's assertion, and defense counsel conceded that the criminal
charge had been bound over to the grand jury. See Rule 5.4(b), Ala. R.
Crim. P.
The circuit court discussed the other allegations with the parties
but elected not to proceed on those because the State had not produced a
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CR-2024-0472
witness in support of the allegations. The circuit court then returned to
the domestic-violence allegation:
Court: "The Court is going to take judicial notice
regarding charge number three on the delinquency
report, violation of state, federal, or local law,
specifically domestic violence first degree,
burglary first. I have an officer here in court who
would be prepared to testify; however, he has
already testified in district court, and the district
court judge bound that case over to the grand jury.
The Court will take judicial notice, like I said, of
that, of reasonable satisfaction as to that charge.
"….
"Okay. Somebody give me a summary about
this [domestic violence] first so I don't have to read
this very long narrative."
State: "Judge, the Defendant was yelling at the door to
get into the victim's home. The victim tried to keep
the door shut. He grabbed – Was it a shotgun?"
Off. Spear: "A BB gun."
State: "He grabbed a BB gun, forced his way inside and
he assault the victim. I have photographs, Judge,
if you would like to –"
Court: "Were they admitted down in district [court]?"
State: "Did they enter these photographs; do you
remember?"
Off. Spear: "I'm not too sure."
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CR-2024-0472
Court: "Any objection to those being admitted, [defense
counsel]?"
Defense: "Judge, I would object. It's hearsay at this point.
I believe – At the preliminary hearing, I don't
believe the victim testified or was in court."
Court: "If they're not, I don't want to go beyond the
parameters of what happened in district [court]."
State: "I understand."
Court: "Okay. But you would contend that there were
injuries?"
State: "There were severe injuries, Judge, yes, that he
inflicted upon her."
Court: "And what was the relationship?"
State: "They were in a romantic relationship on and off,
Judge. The victim sustained pretty bad wounds to
her forehead, nose, and her chin, a laceration on
her right arm. The victim and the defendant have
been together about five years."
Court: "All right. [Defense counsel], what do you want to
say in support of your client today?"
Defense: "Judge, I think, at this point in time, the Court
only has hearsay evidence. The case was bound
over to the grand jury, I do acknowledge that, but
the victim was not there at the preliminary
hearing to testify and is not here today. I would
say all the Court has today is hearsay evidence,
and that is not enough to revoke his probation."
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CR-2024-0472
Court: "All right. I appreciate your argument; however, I
can assume that the district court judge who heard
the case performed his or her obligation to be sure
there was non-hearsay evidence to support
probable cause. You observed the injuries, Officer?
Officer, did you observe the injuries on this young
lady?"
Off. Spear: "Yes, ma'am, I did."
Court: "All right. Very good. All right. The Court is
reasonably satisfied, based on the information, the
statements that I previously made; therefore, I
fully revoke Mr. Ruffin's probation."
(R. 6-9.)
The circuit court issued a written order on May 29, 2024,
memorializing its decision to revoke Ruffin's probation based on his
committing the new offense of first-degree domestic violence (first-degree
burglary). On June 5, 2024, Ruffin filed a postjudgment motion asserting
that the proceeding conducted on May 28, 2024, did not comport with
minimal due process and did not constitute a probation-revocation
hearing. That motion was denied by the circuit court the following day.
Ruffin reasserts on appeal the claims he raised below – that the
circuit court failed to hold a revocation hearing that comported with the
due-process protections outlined in Rule 27.6, Ala. R. Crim. P., and that
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CR-2024-0472
the circuit court relied solely on hearsay evidence in revoking his
probation. This Court holds that either claim would entitle him to relief.
Initially, this Court notes that a hearing was required. "[A] person
may waive his right to a revocation hearing if he 'has been given
sufficient prior notice of the charges and sufficient notice of the evidence
to be relied upon' and he 'admits, under the requirements of Rule 27.6(c),
[Ala. R. Crim. P.,] that he committed the alleged violation.' Rule 27.5(b),
Ala. R. Crim. P." Wilkerson v. State, 372 So. 3d 573, 579 (Ala. Crim. App.
2022). Ruffin did not admit to any of the alleged violations but, rather,
specifically requested a hearing.
The Alabama Supreme Court set forth in Armstrong v. State, 294
Ala. 100, 102, 312 So. 2d 620, 622 (1975), the minimal due-process
requirements that must be met before probation can be revoked, and
those requirements have been incorporated into Rule 27.6, Ala. R. Crim.
P.
"The minimal due process to be accorded a probationer before
his probation can be revoked includes written notice of the
claimed violations of probation, disclosure to the probationer
of the evidence against him, an opportunity to be heard in
person and to present witnesses and documentary evidence,
the right to confront and to cross-examine adverse witnesses,
a neutral and detached hearing body such as a traditional
parole board, and a written statement by the factfinders as to
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CR-2024-0472
the evidence relied on and the reasons for revoking probation.
Rule 27.5 and 27.6, Ala. R. Crim. P. See Armstrong v. State,
294 Ala. 100, 312 So. 2d 620 (1975); Hernandez v. State, 673
So. 2d 477 (Ala. Cr. App. 1995)."
Hollins v. State, 737 So. 2d 1056, 1057 (Ala. Crim. App. 1998).
Ruffin asserts that the circuit court failed to hold a probation-
revocation hearing, which violated his right to due process. This Court
finds support for Ruffin's position in D.L.B. v. State, 941 So. 2d 324 (Ala.
Crim. App. 2006). This Court described the proceedings in D.L.B. as
follows:
"A brief hearing was held on July 13, 2005. Present before the
court were D.L.B. and his counsel, the prosecuting attorney,
and one of the arresting officers. After hearing argument
from the prosecutor and defense counsel, the circuit court
revoked D.L.B.'s probation. No testimony was taken at the
hearing, after the State conceded that the officer present for
the hearing could not 'actually place the drugs' and that the
other arresting officer – the one who actually found the drugs
– was on vacation. The court noted that it was revoking
D.L.B.'s probation based on the State's representation (R. 6)."
941 So. 2d at 325.
This Court stated that, "[a]lthough the July 13, 2005, hearing
purported to be a probation-revocation hearing, the court announced that
it was revoking D.L.B.'s probation without hearing testimony from any
State's witnesses and without allowing D.L.B. an opportunity to be
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CR-2024-0472
heard." D.L.B., 941 So. 2d at 326. Further, "[b]ecause the circuit court
revoked D.L.B.'s probation based on the representations of the
prosecutor, rather than on evidence presented to the court in the form of
witness testimony or other legal evidence, D.L.B. was denied the right to
a hearing." Id.
The record here presents a similar set of facts – the circuit court
heard from no witnesses and instead learned of the domestic-violence
allegations through the unsworn assertions of the State and Off. Spear.
"This Court has … repeatedly recogniz[ed] that if a probationer does not
admit his violations, there is no waiver, and, if there is no waiver and no
evidence is presented, then whatever 'hearing' occurred is 'no hearing' at
all." Mulkey v. State, [Ms. CR-2022-1234, Aug. 23, 2024] ___ So. 3d ___,
___ (Ala. Crim. App. 2024).
The State asserts that this case is distinguishable from D.L.B.
because the circuit court relied on a finding in the district court of
probable cause in a preliminary hearing in the criminal case underlying
the alleged probation violation. Yet, the problem with this type of
evidence, to the extent it could be called such, is that, like the circuit
court's relying on the arguments of counsel in D.L.B., it denied Ruffin the
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CR-2024-0472
opportunity in the circuit court to confront or to cross-examine the
witnesses adverse to him. See Rule 27.6(d)(1), Ala. R. Crim. P. Thus,
this Court finds the State's attempt to distinguish D.L.B. unavailing.
This Court holds that Ruffin was denied his right to a probation-
revocation hearing and that he is entitled to a reversal of the circuit
court's order revoking his probation. Even so, we must address his
second claim – that his probation was revoked based solely on hearsay –
because that issue may arise in subsequent proceedings.
"[T]he formality and evidentiary standards of a criminal trial are
not required in parole revocation hearings." Puckett v. State, 680 So. 2d
980, 981-82 (Ala. Crim. App. 1996). " 'It is not necessary in a probation
revocation hearing to provide proof beyond a reasonable doubt or by a
preponderance of the evidence. Rather, the lower court need only be
"reasonably satisfied from the evidence that the probationer has violated
the conditions of his probation." ' " Goodgain v. State, 755 So. 2d 591, 592
(Ala. Crim. App. 1999) (quoting Mitchell v. State, 462 So. 2d 740, 742
(Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. at
103, 312 So. 2d at 623). "However, 'hearsay evidence may not form the
sole basis for revoking an individual's probation .... "The use of hearsay
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CR-2024-0472
as the sole means of proving a violation of a condition of probation denies
a probationer the right to confront and to cross-examine the persons
originating information that forms the basis of the revocation." ' " Ex
parte Dunn, 163 So. 3d 1003, 1005 (Ala. 2014) (quoting Goodgain, 755 So.
2d at 592, quoting in turn Clayton v. State, 669 So. 2d 220, 222 (Ala.
Crim. App. 1995)). "[A]lthough the State does not have to prove every
element of the alleged new offense with nonhearsay evidence, the State
must present sufficient nonhearsay evidence connecting the defendant to
the commission of the alleged new offense." Walker v. State, 294 So. 3d
825, 832 (Ala. Crim. App. 2019) (footnote omitted).
Again, the circuit court did not hear from a single witness during
the proceeding, and "[i]t is well settled that the unsworn arguments and
assertions of counsel are not evidence." State v. R.C., 195 So. 3d 317, 322
(Ala. Crim. App. 2015). In its brief on appeal, the State offers two items
that it argues constituted sufficient nonhearsay evidence to connect
Ruffin to the allegation of first-degree domestic violence. First, the State
relies on Off. Spear's statement to the Court that he had personally
observed the victim's injuries. This statement was, however, unsworn,
and, even if Off. Spear had made it under oath, the statement still would
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CR-2024-0472
not have connected Ruffin to the offense. This is so because, "[a]lthough
[Off. Spear] testified that he had seen the victim's injuries, no nonhearsay
evidence was presented indicating that [Ruffin] caused those particular
injuries." Weatherford v. State, 251 So. 3d 70, 74 (Ala. Crim. App. 2017).
Second, the State turns to the district court's finding of probable cause in
a preliminary hearing in the criminal case underlying the alleged
probation violation. This Court rejected a similar argument in Williams
v. State, 648 So. 3d 453 (Ala. Crim. App. 2021):
"Although the circuit court took judicial notice of the
district court's having bound Williams's murder charge over
to the grand jury as evidence that Williams had committed
that offense, we recognize that, unlike a decision to revoke
probation, a court may find probable cause at a preliminary
hearing based solely on hearsay. See Rule 5.3(c), Ala. R. Crim.
P. ('The findings by the court shall be based on substantial
evidence, which may be hearsay, in whole or in part.'). See
also Sturdivant v. State, 24 So. 3d 1173 (Ala. Crim. App. 2009)
('A grand jury may indict on hearsay testimony alone.'). Thus,
without more, evidence of a mere finding of probable cause
does not constitute sufficient nonhearsay evidence to support
the revocation of probation."
348 So. 3d at 455.
To the extent that the State presented any evidence, it was pure
hearsay.
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CR-2024-0472
Accordingly, this Court reverses the circuit court's order revoking
Ruffin's probation and remands the case for the circuit court to hold a
probation-revocation hearing that complies with Rule 27.6, Ala. R. Crim.
P., unless Ruffin validly waives his right to a revocation hearing.
REVERSED AND REMANDED.
Kellum, McCool, Cole, and Minor, JJ., concur.
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