Opinion
No. 48A04-1103-CR-93
09-19-2011
MARCUS D. BROWN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : MICHAEL FRISCHKORN Frischkorn Law LLC Fortville, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
MICHAEL FRISCHKORN
Frischkorn Law LLC
Fortville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Rudolph R. Pyle, III, Judge
Cause No. 48C01-0912-FB-690
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH , Judge
Marcus D. Brown ("Brown") appeals from the trial court's order revoking his probation. Of the issues presented, Brown raises the following dispositive issue for our review: whether the trial court erred by admitting a laboratory certificate of analysis during the probation revocation hearing.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 10, 2010, Brown pleaded guilty to robbery as a Class C felony, and the trial court imposed a six-year sentence with all but 402 days suspended to probation. Brown was advised that all standard conditions of probation applied to him with the addition of the conditions that he: (1) not violate any laws; and (2) report any contact he had with law enforcement to his probation officer within forty-eight hours. On September 8, 2010, the State filed a notice of probation violation. After a hearing on the matter, the trial court found that Brown had violated the terms and conditions of his probation by committing the new criminal offense of resisting law enforcement and by associating with a convicted felon. Brown was continued on probation without the imposition of any sanction for the violations.
On December 7, 2010, a confidential informant advised Drug Task Force Detective Clifford Cole ("Detective Cole") that he could arrange to purchase cocaine from Brown. The confidential informant completed the transaction and also identified Brown in a photo lineup as the individual from whom he had purchased the cocaine. That same day, police officers obtained and executed a search warrant for the residence from which the confidential informant had purchased the cocaine from Brown. Brown was arrested, and the officers recovered several bags of what appeared to be marijuana in plain view on the living room table. Brown failed to report this new arrest to his probation officer within forty-eight hours per the terms and conditions of his probation.
Detective Cole submitted the cocaine and the marijuana to the Indiana State Police Laboratory for testing. The Indiana State Police Laboratory returned to Detective Cole a certificate of analysis showing that the item purchased by the informant was 2.71 grams of cocaine, and that the substance found on the table in the residence was almost thirty grams of marijuana. The certificate of analysis bore the case number that matches this case and was signed by the testing analyst.
On December 29, 2010, the State filed a second notice of probation violation alleging that Brown had committed the new criminal offense of dealing in cocaine as a Class B felony and had failed to report his new arrest to his probation officer within forty-eight hours of the arrest. At the hearing on this new probation violation, Brown objected to the admission of the certificate of analysis, which was admitted through the testimony of Detective Cole, on the grounds that there was "no foundation, it's not an affidavit" and "chain of custody." Tr. at 7. The trial court overruled the objections, finding that the certificate was substantially reliable. The trial court found that Brown had violated the terms and conditions of his probation as alleged, revoked Brown's probation, and ordered him to serve his previously-suspended sentence. Brown now appeals.
DISCUSSION AND DECISION
A probation revocation hearing is in the nature of a civil proceeding and a violation only has to be proven by a preponderance of the evidence. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). When reviewing an appeal from the revocation of probation, we consider only the evidence most favorable to the judgment, and we will not reweigh the evidence or judge the credibility of witnesses. Sanders v. State, 825 N.E.2d 952, 957 (Ind. Ct. App. 2005). "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007). The trial court imposes the conditions of probation and may revoke it if those conditions are violated. Id. Because probation revocation does not deprive a defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the full due process rights afforded to a defendant in a criminal proceeding. Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct. App. 2002). Criminal defendants must agree to abide by specific conditions imposed by the court to avoid imprisonment. Mathews v. State, 907 N.E.2d 1079, 1081 (Ind. Ct. App. 2009).
Brown argues that the trial court erred by admitting the certificate of analysis in evidence during the probation revocation hearing. The trial court has broad discretion in ruling on the admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 50 (Ind. Ct. App. 2010), trans. denied. We will reverse such ruling only when the trial court abuses its discretion. Id. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Boggs v. State, 928 N.E.2d 855, 862 (Ind. Ct. App. 2010), trans. denied.
Brown argues here on appeal that the certificate of analysis was inadmissible hearsay and should have been excluded from evidence. However, as the State notes, Brown objected to the admission of the evidence at trial on foundational and chain of custody grounds. A defendant may not object on one ground at trial and then raise a different ground on appeal. Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000). In that situation, the issue is waived for review. Id.
Waiver notwithstanding, the trial court did not err in admitting the certificate of analysis during Brown's probation revocation hearing. "[P]robation revocation proceedings are not the equivalent of traditional criminal proceedings and the rule for the latter do not necessarily apply to the former." Marsh v. State, 818 N.E.2d 143, 147 (Ind. Ct. App. 2004). For example, the rules of evidence do not apply in a revocation proceeding. Id.; Ind. Evidence Rule 101(c)(2). "A revocation hearing is a narrow inquiry, and its procedures are more flexible than those of a criminal proceeding." Black v. State, 794 N.E.2d 561, 564 (Ind. Ct. App. 2003).
"Courts of this state follow the general rule that, with regard to probation proceedings, they may consider any relevant evidence bearing some substantial indicia of reliability, including reliable hearsay." Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001). Here, Detective Cole testified that he submitted the items to the Indiana State Police Laboratory for testing and that he received a certificate of analysis from that laboratory. The certificate is printed on an official Indiana State Police Laboratory form, contains both the case number and the laboratory number, lists the items submitted for analysis, and is signed by a forensic scientist employed at the laboratory. Furthermore, the certificate reflects that the laboratory was accredited by the Laboratory Accreditation Board of the American Society of Crime Lab Directors. The fact that the analyst who conducted the tests did not testify at the hearing does not weaken the certificate's reliability or trustworthiness. The trial court did not abuse its discretion by finding the evidence to be substantially reliable and trustworthy, and therefore, admissible.
Because violation of a single condition of probation is sufficient to revoke probation, we do not reach the other issues presented. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).
Affirmed. BAKER, J., and BROWN, J., concur.