State v. Joyce Newman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. JOYCE NEWMAN

Direct Appeal from the Circuit Court for Sequatchie County

Nos. 3647, 3648 Thomas W. Graham, Trial Judge

No. M1999-00161-CCA-R3-CD - Decided July 12, 2000

The defendant pled guilty in Sequatchie County to two counts of selling a Schedule II substance and

was sentenced to confinement for four years and six months. After serving six months, she was

placed in community corrections. Subsequently, an affidavit was filed by her probation officer,

alleging that she had violated her Community Services Behavioral Contract in several ways,

including “breaking house arrest.” Following a hearing, the trial court agreed that the defendant had

violated the house arrest provision of the contract and ordered that she serve the remainder of her

sentence with the Department of Correction. The defendant timely appealed, alleging that the trial

court improperly considered certain evidence and that, if she was reconfined, she should have served

her sentence at the local jail, rather than with the Department of Correction. Based upon our review,

we reverse the order of the trial court and remand for a new revocation hearing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and

Remanded for a New Hearing.

GLENN, J., delivered the opinion of the court, in which RILEY, J., joined and WITT, J., concurred in

results.

Philip A. Condra, Public Defender, and B. Jeffrey Harmon, Assistant Public Defender, Jasper,

Tennessee, for the appellant, Joyce Newman.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General,

James Michael Taylor, District Attorney General, and Steven H. Strain, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, Joyce Newman, appeals as of right from a judgment of the Sequatchie County

Circuit Court revoking her community corrections sentence and requiring her to serve the balance

of her sentence in the Tennessee Department of Correction. The defendant pled guilty to two counts

of selling Schedule II controlled substances. The defendant argues that the trial court erred in

revoking her community corrections sentence solely on the basis of inadmissible hearsay testimony

of her probation officer, thereby violating her confrontation rights. The defendant argues further that

the trial court erred in requiring that she serve the balance of her four-year sentence in the

Department of Correction rather than in the local jail with a lesser required period of incarceration.

After reviewing the entire record, we conclude that the trial court’s acceptance of the testimony of

the probation officer as to the instances of defendant’s violations of house arrest without explanation

concerning the unavailability of the curfew monitors who prepared the reports or proof of the

reliability of the reports denied the defendant of her right to confront those witnesses, and therefore

was an abuse of discretion. We remand this case for a new hearing to allow the defendant to cross-

examine the curfew monitors.

BACKGROUND

On May 27, 1997, the defendant was indicted for the sale of methamphetamine, a Schedule

II controlled substance, in indictments number 3647 and number 3648. On November 4, 1997, the

defendant pled guilty to the sale of methamphetamine as charged in indictment 3647, and on January

1, 1998, the defendant was sentenced to four years and six months as a Range I standard offender

and fined $2,000. The method of service of sentence was six months in the county jail and four

years in community corrections. On January 30, 1998, the defendant pled guilty to the sale of

methamphetamine as charged in indictment number 3648 and received a sentence duplicating that

in number 3647, the two sentences to be served concurrently. During the window of time between

the defendant’s guilty plea in case number 3647 and the entry of judgment in that case, the defendant

was arrested in Grundy County for possession of methamphetamine, a charge which resulted in a

jury conviction that was ultimately set aside for lack of sufficient evidence.

On November 16, 1998, a community corrections violation warrant was issued, charging the

defendant with violating the terms of her community corrections sentence by “new conviction [the

Grundy County conviction, later set aside], not making payments, not reporting, not completing

community service, breaking house arrest, and testing positive.” A revocation hearing was held on

December 18, 1998, and continued to January 4, 1999. At the conclusion of the hearing, the trial

court stated the following:

All right, this is just a -- basically boils down to credibility in this

situation. The probation officer says that at least on three occasions

that there was no one at home after hours without any permission.

Ms. Newman says she can’t remember when those three nights

occurred, but she knows for sure she was there. She can’t -- she can’t

be specific about it. As far as the Court’s concerned that’s proof

enough.

....

The Court finds that she failed to be at home when she’s supposed to

be at home by a preponderance of the proof. The Court believes the

testimony of the probation officer over the probationer in this case,

determines that she violated the terms of her release and therefore that

-2-

she should be revoked on her probation for failure to comply with the

requirements of the Community Corrections.

On the Probation Revocation Order, the trial court listed “violating house arrest” as the only grounds

for revocation. The Community Corrections Order standard form included the following:

3. The defendant shall serve 120 days of house arrest. Upon

successful completion of house arrest, the defendant shall

abide by a curfew. House arrest may be extended or

reinstated by the Community Corrections Program if the

defendant violates any program rule.

The proof that the defendant failed to be at home on the seven occasions during August,

September, and October, 1998, was offered by Sladjauna Pope, the defendant’s probation officer.

Her testimony was dependant on the reports of two curfew monitors who checked on the defendant

at night. The defense objected to this testimony as inadmissable hearsay that denied the defendant

her right to question the monitors who prepared the reports. Ms. Pope testified in the following

exchange:

THE COURT: Why don’t you list just the dates? It’s hard for them

to respond like that.

A. Okay. She was checked twice on 8/20/98 and was gone.

9/22/98 she was not at home. Then 10/5, 10/13, 10/19, 10/26.

THE COURT: Do they give you the exact hour that they check?

A. Yes, exact minute, like 18:20.

Q. For those dates, tell the Judge what time they checked and she

wasn’t home.

A. On 8/20 that’s when it has, went to Taco Bell.

Q. What time?

A. 19:05 and 19:52.

Q. When was she suppose - - when did her curfew say she was

suppose to be home that particular day?

A. She was on house arrest if she wasn’t at work.

Q. So she wasn’t suppose to be anywhere?

-3-

A. No. If she’s not at work or seeing me - -

Q. She’s suppose to be home period?

A. Yes.

Q. Okay. Go to your next date and tell the Judge what time y’all

checked and she wasn’t there.

A. 9/22. It was 18:20. And then 10/5 it was 20:30. 10/13 it was

18:25. 10/19, 18:20, and 10/26, 19:00.

THE COURT: All right. Let me see those sheets that you’re reading

from?

A. Those are what the curfew monitor provides each month.

The defendant testified that she was at home every night of the months in question. She also

offered as an explanation for the monitors’ reports the fact that she had no car to indicate her

presence at home; her rented house had no doorbell; and she was at the back of the house in the

evenings and often did not hear someone at the front door. Her daughter corroborated her testimony.

ANALYSIS

A. Standard of Review

A trial judge may revoke a sentence of probation or a suspended sentence upon a finding that

the defendant violated the conditions of her probation or suspended sentence by a preponderance of

the evidence.1 See Tenn. Code Ann. § 40-35-311(e) (Supp. 1999). Proof beyond a reasonable doubt

is not required, but proof “is sufficient if it allows the trial judge to make a conscientious and

intelligent judgment.” Harkins 811 S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557

(Tenn. Crim. App. 1984)). The determination whether a defendant has violated conditions of her

probation or community corrections sentence will not be disturbed on appeal unless it appears that

there has been an abuse of discretion. See id. (“We are persuaded that an abuse of discretion method

of appellate review is applicable to issues which address the revocation of a community corrections

sentence.”). For this court to find that the trial court has abused its discretion in revoking a

community corrections sentence, it must be established that the record lacks any substantial evidence

to support the conclusions of the trial court. See id.; see also State v. Gregory, 946 S.W.2d 829

1

Our supreme court has held the following: “Given the similar nature of a community

corrections sentence and a sentence of probation, we hold that the same principles are applicable in

deciding whether a community corrections sentence revocation was proper.” State v. Harkins, 811

S.W.2d 79, 83 (Tenn. 1991).

-4-

(Tenn. Crim. App. 1997) (finding no abuse of discretion in revoking probation where the trial court

had before it evidence of two reliable field tests positive for cocaine).

B. Sufficiency of the Evidence

The defendant insists that the trial court erred in allowing the State to prove house arrest

violations, the sole basis for the trial court’s revocation of her community corrections sentence,

through inadmissible hearsay testimony of the probation officer and that by so doing, the trial court

denied the defendant her constitutional right to confront witnesses against her. The State contends

that the defendant did not question the reliability of the reports and that the defendant was allowed

to cross-examine the probation officer, which the State argues met confrontation requirements. We

treat this issue as one of sufficiency of the evidence.

It is settled law that the procedural requirements in supervised release revocation proceedings

are less stringent than those employed during adversarial criminal trials. See Black v. Romano, 471

U.S. 606, 613, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985) (noting that the revocation hearing

“does not require the full panoply of procedural safeguards associated with criminal trial”); Bledsoe

v. State, 215 Tenn. 553, 387 S.W.2d 811, 814 (1965) (noting that “a revocation of a suspended

sentence does not require the quantum of proof necessary to convict one of a crime in the first

instance”).

Although the defendant’s freedom interest is conditional, she must still be afforded many of

the core values of unqualified liberty of other citizens. In Gagnon v. Scarpelli, 411 U.S. 778, 786,

93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656 (1973), the U.S. Supreme Court established the minimum

requirements of due process in probation proceedings. Those requirements in Gagnon duplicate the

requirements set out by the Supreme Court for parole revocation procedures a year earlier in

Morrisey v. Brewer, and include:

(a) written notice of the claimed violations of parole; (b) disclosure

to the parolee of evidence against him; (c) opportunity to be heard in

person and to present witnesses and documentary evidence; (d) the

right to confront and cross-examine adverse witnesses (unless the

hearing officer specifically finds good cause for not allowing

confrontation); (e) a “neutral and detached” hearing body such as a

traditional parole board, members of which need not be judicial

officers or lawyers; and (f) a written statement by the factfinders as

to the evidence relied on and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). The

Morrissey Court emphasized that “there is no thought to equate this second [final] stage of parole

revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be

flexible enough to consider evidence including letters, affidavits, and other material that would not

be admissible in an adversary criminal trial.” Id.

-5-

Our supreme court has determined that hearsay evidence is admissible at a probation

revocation hearing, thus depriving the probationer of the right to cross-examination, when minimum

confrontation requirements of Gagnon are met. See State v. Wade, 863 S.W.2d 406, 409 (Tenn.

1993) (quoting favorably Wilson v. State, 521 A.2d 1257, 1260-61 (Md. App. 1987)). Those include

(1) a specific finding by the trial court of “good cause” that would justify the denial of the

defendant’s right to confront and cross-examine an adverse witness; and (2) a showing that the

information contained in the report is reliable. See id. at 409. The Wade court concluded that the

drug test report in that case was not admissible into evidence because there was no showing of good

cause to justify the absence of the technician who prepared the report, and, further, that even had

there been such a showing, the report contained no “significant indicia of reliability.” Id. at 410.2

Here, the defendant challenged the reliability of the reports of her curfew monitors for the

months of August, September, and October, 1998, which her probation officer brought to the

hearing. These documents were not entered as evidence, but the record indicates that the trial judge

did look at them and found them to be reliable. The testimony of the probation officer reveals only

the barest information concerning the content of the records and no information at all concerning

their reliability. The State provided no explanation for the absence of the monitors, and thus the trial

court found no “good cause” for their absence. The defendant was, therefore, denied an opportunity

to cross-examine the monitors to determine exactly what sort of check they performed: whether they

merely knocked once; whether they circled the house looking for lights; whether they knocked at

the back door; whether they actually located the defendant at the Taco Bell as the cryptic entry read

by the probation officer seemed to imply; and whether they were informed of problems with the

defendant’s ability to hear knocking at her front door.3

2

This court has applied the standard in Wade to questions of sufficiency of the evidence

where a community corrections sentence was revoked based on hearsay evidence. In State v. Scott

Anderson, No. 03C01-9703-CC-00093, 1998 WL 205919, at *2 (Tenn. Crim. App., Knoxville, Apr.

29, 1998), we concluded that the trial court did not abuse its discretion in revoking appellant’s

community corrections sentence by relying on hearsay evidence from the probation officer because

the appellant made no effort to correct the proof or object to it. In State v. Jimmie C. Ray, No.

01C019501CR00022, 1995 WL 464743, at *5 (Tenn. Crim. App., Nashville, Aug. 4, 1995), we

concluded that the trial court abused its discretion in revoking appellant’s community corections

sentence by relying on hearsay evidence concerning the terms of the appellant’s community

corrections sentence. In State v. Ricker, 875 S.W.2d 687, 689 (Tenn. Crim. App.1994), we

concluded that the trial court abused its discretion in revoking appellant’s community corrections

sentence by relying solely on an “unreliable laboratory test report without any good cause being

shown or found to exist to deny the defendant the right to confront and cross-examine a person with

knowledge about the testing done.”

3

The defendant testified on cross-examination that she had informed her probation officer

of the problems she had hearing individuals knocking at her front door in the evenings when she was

at the back of the house. The probation officer was not present at the hearing on January 4, 1999,

when the defendant testified, so this fact was never contested.

-6-

We conclude that there was insufficient evidence before the trial court to prove the violation

of the defendant’s community corrections sentence solely on the basis of seven violations of house

arrest in August, September, and October, 1998. Even under the less stringent evidentiary rules

applicable to revocation hearings, the hearsay testimony of the probation officer, without a showing

of good cause for the absence of the curfew monitors who prepared the reports, and without a

showing of the reliability of the records, denied the defendant of her right to confront the witnesses

against her and cross-examine one or both concerning the contested issue of her presence at home

when seven checks were carried out. On this single issue, we conclude that the trial court abused

its discretion.

C. Excessive Punishment

The defendant finally argues that the trial court erred in requiring that she serve the balance

of her community corrections sentence in the Department of Correction rather than in the local jail

with some lesser amount of time allocated to incarceration. Pursuant to Tennessee Code Annotated

Section 40-36-106(e)(4), following the revocation, the trial judge shall have the right to resentence

the defendant to incarceration. The trial court ordered that the defendant serve the balance of her

four-year sentence in the Department of Correction in accordance with the original judgment,

allowing her credit for time spent in community corrections and any time spent in jail. Having

determined that a new hearing should be held, this issue need not be addressed; nevertheless, we

determine now that this issue is without merit and the trial court acted within its authority.4

CONCLUSION

In accordance with the foregoing analysis, we conclude that the trial court abused its

discretion in revoking the defendant’s community corrections sentence for violations of house arrest

proven solely by inadmissable hearsay evidence that denied the defendant her right to confront

witnesses against her. We remand for a new hearing in light of this opinion.

4

As to the punishment this defendant has received, we note, in passing, that her probation

officer testified that the defendant was never required to participate in any drug rehabilitation

program while on community corrections. The defendant’s presentence report stated that the

defendant admitted to a problem with methamphetamine, yet, at the hearing, the defendant testified

on cross-examination that she did not think she had a problem. Hopefully, this defendant received

some form of drug rehabilitation assistance during her period of incarceration in the Department of

Correction.

-7-