Opinion
No. M2004-01402-CCA-R3-CD.
Assigned on Briefs March 9, 2005.
Filed July 29, 2005.
Direct Appeal from the Circuit Court for Franklin County; No. 14574; Buddy D. Perry, Judge.
Judgment of the Circuit Court is Affirmed.
Philip A. Condra (on appeal) and David O. McGovern (at trial), Jasper, Tennessee, for the appellant, Kenneth Wayne Dunn.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Joseph M. Tipton and John Everett Williams, JJ., joined.
OPINION
The appellant, Kenneth Wayne Dunn, pled guilty in the Franklin County Circuit Court to possession of a Schedule II controlled substance, a Class C felony, and the trial court sentenced him to four years to be served as thirty days in jail and the remainder on probation. Subsequently, the trial court revoked the appellant's probation and ordered him to serve his sentence in confinement. In this appeal, the appellant's sole contention is that he did not receive a fair probation revocation hearing because the trial court allowed a witness to give hearsay testimony. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
I. Factual Background
Kevin Rhodes of the Tennessee Board of Probation and Parole testified that he was assigned to oversee the appellant's probation in October 2002. On February 3, 2004, he filed a probation violation warrant against the appellant because the appellant had tested positive for methamphetamine in January. Mr. Rhodes related that on January 26, 2004, the appellant had admitted to him that the appellant had used the drug. On March 8, 2004, Mr. Rhodes filed an amendment to the original probation violation warrant, alleging that the appellant had been arrested on March 2 for attempting to manufacture methamphetamine, felony possession of methamphetamine, and felony possession of drug paraphernalia. The appellant also had violated his probation by not informing Mr. Rhodes about these new charges. In late March 2004, Mr. Rhodes filed a second amendment to the original probation violation warrant because the appellant had been arrested on March 20 for felony possession of a Schedule VI controlled substance, felony possession of drug paraphernalia, and manufacturing methamphetamine. Finally, Mr. Rhodes stated that the appellant had reported to him on February 27, 2004, but quit reporting as required by his probation when he received the new charges.
On cross-examination, Mr. Rhodes stated that the appellant was a good worker and was employed at Stewart Aluminum as a vinyl siding installer. Prior to violating his probation in 2004, the appellant had reported to Mr. Rhodes as required, had paid his fines, and had completed his public service work. He stated that the appellant had been "doing fine until this year and then it all went downhill with the new drug charges."
Officer Herb Cantrell of the Decherd Police Department testified that on March 21, 2004, he responded to a shoplifting call at Kroger. When he arrived, the appellant was being detained by the manager for shoplifting a can of Red Devil lye. Officer Cantrell read the appellant his Miranda rights, and the appellant gave the officer consent to search his car. In the car, Officer Cantrell found two cans of freon, several rolls of black electrical tape, fuel dryer antifreeze, several grams of red phosphorus, ten grams of crystal iodine, matches with the striker plates removed, about one thousand striker plates, and bottles of rubbing alcohol. He also found a small amount of marijuana.
Drug Investigator George Dyer of the Franklin County Sheriff's Department testified that Officer Cantrell called him to Kroger on March 21, 2004. Investigator Dyer then called a hazardous materials team to the scene to take custody of the items found in the appellant's car and dispose of the items properly.
David Cook, Chief of Police for the Estill Springs Police Department, testified that on March 2, 2004, Officer Danny Mantooth telephoned him and told him that the appellant was at Wal-Mart buying "components for a meth lab." He said that Investigator Dyer also telephoned him and told him that the appellant was at Wal-Mart buying acetone. After the calls, Chief Cook saw the appellant driving and stopped him for speeding. When Chief Cook approached the appellant's car, he smelled "an odor of what appeared to be a meth lab." In the car, Chief Cook saw a container of acetone, a butane torch, and a bottle that appeared to contain ephedrine. When he and other officers took control of the appellant's car, they also found coffee filters and latex gloves.
The then thirty-eight-year-old appellant testified that he had worked for Stewart Aluminum for twenty-one years and that he was supporting his girlfriend and his girlfriend's young daughter. He said that he also sent money to his two stepchildren occasionally and that he helped his disabled father pay bills. On cross-examination, the appellant testified that he no longer had a drug problem and that he had not smoked marijuana in two years. He said that he did not remember using methamphetamine in January or February 2004 and that he had not admitted using the drug to his probation officer. He stated that he did not make methamphetamine and did not help other people make it. He related that the Red Devil lye "was to be paid for" and that he was buying it for someone else. He had no explanation for why the chemicals were in his car and stated that he bought acetone at Wal-Mart in order to paint his Chevrolet Blazer. Regarding his failing to report to his probation officer, the appellant stated that he did not report in March 2004 because he was in jail for three weeks of the month and was "busy working and stuff" the remainder of the month. He said that he had no excuse for failing to report in April and that he did not tell his probation officer about his arrests because it slipped his mind.
The trial court revoked the appellant's probation, finding that the appellant was "attempting to run two meth labs." Although the trial court noted that the appellant's employment history weighed heavily in his favor, the court concluded that the appellant should serve his sentence in confinement.
II. Analysis
The petitioner contends that he did not get a fair probation revocation hearing because the trial court allowed Chief Cook to give hearsay testimony regarding Chief Cook's telephone conversations with Officer Mantooth and Investigator Dyer. The State argues that Chief Cook's testimony was not hearsay because it was offered to show why Chief Cook stopped the appellant and not for the truth of the matter asserted. Moreover, the State argues that even if the trial court improperly allowed hearsay testimony, there was ample evidence for the trial court to revoke the appellant's probation.
Our review of the probation revocation hearing transcript reveals that before Chief Cook testified about what Officer Mantooth and Investigator Dyer told him, the appellant objected on the grounds that the evidence was hearsay. The trial court overruled the objection, concluding that the hearsay testimony was admissible because it was reliable.
Initially, we note that the strict rules of evidence do not apply in a probation revocation hearing. Barker v. State, 483 S.W.2d 586, 589 (Tenn.Crim.App. 1972). Moreover, Tennessee Code Annotated section 40-35-209(b) provides that in a sentencing hearing, reliable hearsay is admissible as long as a defendant "is accorded a fair opportunity to rebut any hearsay evidence so admitted." See State v. Carney, 752 S.W.2d 513, 514 (Tenn.Crim.App. 1988) (citing Tenn. Code Ann. § 40-35-209(b) and applying it to a probation revocation hearing); see also State v. Frederick Neblett, No. 01C01-9805-CR-00232, 1999 Tenn. Crim. App. LEXIS 263, at *6 (Nashville, Mar. 17, 1999) (stating that reliable hearsay at a probation revocation hearing is "admissible so long as the defendant had a fair opportunity to rebut the evidence and the evidence otherwise was not introduced in violation of constitutional notions of due process"). Generally, the decision of whether to revoke an appellant's probation rests in the sound discretion of the trial court, a decision which will not be overturned by this court absent an abuse of that discretion. See State v. Leach, 914 S.W.2d 104, 106 (Tenn.Crim.App. 1995).
Turning to the instant case, we note that although the State claims that Chief Cook's testimony is not hearsay, we agree with the trial court that it is. See Tenn. R. Evid. 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"). Nevertheless, the trial court concluded that the testimony was reliable. We note that Chief Cook testified that following his conversations with the officers, he stopped the appellant for speeding. Inside the appellant's car, Chief Cook found items used to manufacture methamphetamine. We conclude that the reliability of the statements made by the officers to Chief Cook was sufficiently corroborated by Chief Cook's testimony regarding the items he found in the appellant's car. The trial court properly admitted the testimony into evidence.
III. Conclusion
Based upon the record and the parties' briefs, we affirm the judgment of the trial court.