Opinion
No. M2002-02497-CCA-R3-CD.
Assigned on Briefs July 16, 2003.
Filed November 5, 2003.
Direct Appeal from the Criminal Court for Davidson County; No. 2002-B-628; J. Randall Wyatt, Jr., Judge.
Affirmed.
Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Jonathan Farmer, Assistant Public Defender (at trial), for the appellant, Joseph L. Robinson, Jr.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Joe G. Riley and Thomas T. Woodall, JJ., joined.
OPINION
The defendant appeals the revocation of his probation, arguing that the evidence was insufficient for the revocation and the trial court erroneously considered as evidence both the victim's preliminary hearing testimony and an earlier written statement she had made. We agree that the trial court erred in considering the victim's written statement but conclude the error was harmless because other evidence, including her preliminary hearing testimony, provided sufficient basis to revoke the defendant's probation. Accordingly, we affirm the order of the trial court.
FACTS
On July 2, 2002, the defendant, Joseph L. Robinson, Jr., pled guilty to domestic assault (count one), possession with the intent to sell or deliver under .5 grams of a Schedule II controlled substance (count two), and possession of drug paraphernalia (count three). The defendant was sentenced to concurrent terms of eleven months, twenty-nine days for counts one and three and five years for count two, all suspended except for twenty consecutive weekends with the balance to be served on probation. Additionally, he was ordered to attend a fifty-two-week batterers intervention program, and his first year of probation was to be intensive supervised probation. Three weeks after the defendant was placed on probation, he was arrested for one count of aggravated assault and three counts of child neglect. As a result, Helen Howard, the defendant's probation officer, filed a violation of probation affidavit.
At the defendant's August 30, 2002, probation revocation hearing, Helen Howard testified that she filed a probation violation affidavit because of his arrest for aggravated assault and child neglect the previous month. On cross-examination, Howard stated that, during the three weeks the defendant had been on probation, he reported twice a week, as ordered, and maintained employment. She acknowledged that the sole reason for her seeking revocation of his probation was his arrest in July on new charges.
After Howard's testimony, the State rested. Defense counsel argued that there was no basis for revoking the defendant's probation because the State presented no evidence of the new charges and his probation could not be revoked simply because he had been rearrested. The State then called, as a witness, Christina White, whose complaint ostensibly had resulted in the defendant's July arrest.
White testified that on July 23, 2002, her three-year-old daughter called 9-1-1. Asked what had happened that day, White responded, "I don't know. . . . I can't remember what happened." When the court asked her what she meant by that statement, she said, "Because I've had a nervous breakdown and I don't know — I can't remember the details of that night." She acknowledged that a police officer came to her house in response to her daughter's 9-1-1 call, she "waved" at the officer, he left, and she then went inside her house where the defendant "was standing downstairs."
The State continued with its questioning of White:
Q When you walked in the house and he was standing downstairs, what did he do? Did he approach you?
A He didn't do it.
Q Pardon me?
A He didn't do it.
Q He didn't do it?
A No.
. . . .
Q And there was a warrant that was taken out; right?
A Yes.
Q Okay. Did he get a knife and put it on your throat?
[DEFENSE COUNSEL]: Your Honor, I object to that.
THE WITNESS: He didn't do it. He didn't do anything. He didn't do it. I don't know.
At this point, the trial court stopped the questioning of White and postponed the hearing to a later date. Then, the trial court asked whether the defendant's charges had been bound over to the grand jury after a preliminary hearing, which the State said was correct and that White had testified at that hearing. The State informed the trial court that the preliminary hearing had been tape-recorded, and the court requested the State to bring the tape to the next hearing date.
On September 4, 2002, at the continuation of the revocation hearing, the tape and a transcript of White's testimony at the preliminary hearing were produced by the State, over the objection of defense counsel who argued that both were hearsay evidence. Referring to White's appearance at the previous revocation hearing, the court said, "She was very emotional and upset and distraught. And . . . I could sense that she was under extreme stress and pressure and emotions at the time of the hearing. . . . [S]he was, in her emotional state[,] unavailable to testify at that time Friday morning [the first day of the hearing]." The court then took under advisement the defendant's objection until after the court had listened to the tape, a copy of which is included in the record on appeal.
The tape reveals that at the defendant's preliminary hearing, White testified she and the defendant were living together and had children together. She said that on July 23, 2002, she and the defendant were arguing when her three-year-old daughter dialed 9-1-1 and then hung up the telephone. The defendant then informed White that the police had called their home in response to the 9-1-1 call. White left the home to "run over to Mapco," and, when she returned, a police officer pulled up and asked if everything was all right because "they had a 911 hang-up call." After White told the officer that everything was fine and that "[t]he baby was just playing with the phone," the officer left the premises.
White then went inside the house through the back door. The defendant grabbed her arm and, holding a kitchen knife to her throat, began screaming, "Why is there a cop out front[?] What did you call the police for this time on me for?" He continued "ranting and raving" but eventually allowed her to leave to go to an ATM machine at the Mapco store. At the store, she flagged down a police officer and informed him of the matter. She waited for the officer's lieutenant to arrive which took about one and a half to two hours. Subsequently, White saw the defendant's car at the Mapco and notified the officer of his location.
White said that her three children remained with the defendant at their home when she left the second time. About three minutes after the defendant arrived at the Mapco, she returned to check on her children, who "were fine." She also said that the police came to her home, filled out an incident report, and questioned her daughter who called 9-1-1. White said that, during the course of this incident, she was afraid the defendant was going to harm her, and she later filed for an order of protection.
At the preliminary hearing, the court found probable cause to bind the charges of aggravated assault and three counts of child neglect over to the grand jury.
By written order entered September 9, 2002, the trial court revoked the defendant's probation:
The Court has now considered the argument of counsel for the State and the defendant, reviewed the prior criminal record of the defendant and heard the testimony of Christina White. While Ms. White was not completely clear of the events which led to the revocation warrant, and in fact recanted some of her previous allegations, the Court has now listened to the tape recording of the preliminary hearing where Ms. White testified and reviewed the handwritten statement of Ms. White which she submitted with her Petition for an Order of Protection regarding the events of July 23, and is of the opinion that under all of the circumstances that the probation violation should be sustained.
ANALYSIS
A. Standard of Review
A trial court is granted broad authority to revoke a suspended sentence and reinstate the original sentence if it finds by the preponderance of the evidence that the defendant has violated the terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, 311 (1997). The revocation of probation lies within the sound discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn.Crim.App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.Crim.App. 1991). To show an abuse of discretion in a probation revocation case, "a defendant must demonstrate `that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred.'" State v. Wall, 909 S.W.2d 8, 10 (Tenn.Crim.App. 1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn.Crim.App. 1980)). The proof of a probation violation need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial court 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)). We review this issue, therefore, for an abuse of discretion.
B. Victim's Preliminary Hearing Testimony
The defendant asserts that the trial court erred in revoking his probation because the evidence was insufficient to establish that he violated its terms. Specifically, he argues that White's testimony did not establish that he had violated his probation and actually supported a finding that he was not guilty of the offenses. Alternatively, the defendant argues that the trial court erroneously considered White's preliminary hearing testimony because she was not unavailable as a witness.
We agree that White's testimony from the preliminary hearing was hearsay. See Tenn. R.Evid. 801(c). However, Rule 804(b)(1) of the Tennessee Rules of Evidence allows hearsay evidence to be admitted if the declarant is unavailable:
Former Testimony — Testimony given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had both an opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination.
Tenn. R.Evid. 804(b)(1).
Neil P. Cohen et al., Tennessee Law of Evidence § 8.32[5] (4th ed. 2000), explains that lack of memory as to the subject matter of the statement in question may result in a declarant's being "unavailable":
Rule 804(a)(3) provides that a declarant is unavailable to testify if he or she demonstrates a lack of memory of the subject matter of the declarant's own statement. The unusual requirement that the witness "demonstrate" a lack of memory means that the witness should be called to the stand and questioned about the subject matter covered by the witness's own hearsay statement. The court could even require efforts to refresh the witness's recollection.
As with the previous unavailability rule, the lack of memory is about the "subject matter of the declarant's statement." This means that the witness may remember and testify about some issues, but be unable to remember others. He or she is deemed unavailable for purposes of admitting Rule 804(b) hearsay statements about matters in the latter category. Routinely, the witness's own testimony will provide the foundation for the lack of memory. If the court does not believe that the witness really does lack memory, the best approach may be for the court to order the witness to testify. If the witness still feigns lack of memory, the witness would be unavailable under Rule 804(a)(2) for persisting to refuse to testify despite a court order to do so.
Former testimony admitted under Rule 804(b)(1) is substantive evidence. State v. Stacey Philander Baldon, No. W2000 — 00524-CCA-R3-CD, 2001 WL 128586, at *5 (Tenn.Crim.App. Feb. 12, 2001),perm. to appeal denied (Tenn. June 4, 2001).
At the revocation hearing, the victim testified several times, "I don't know" and "I can't remember what happened," and also stated numerous times, "[The defendant] didn't do it." Based on this testimony, the trial court determined that she was "unavailable" to testify, stating later, "She was very emotional and upset and distraught. And . . . I could sense that she was under extreme stress and pressure and emotions at the time of the hearing. . . . [S]he was, in her emotional state[,] unavailable to testify at that time Friday morning [the first day of the hearing]." Because of these responses, we conclude that the record supports the trial court's determination that the witness was "unavailable" for purposes of the revocation hearing.
As to the reliability of White's former testimony, the preliminary hearing transcript demonstrates that she was thoroughly cross-examined, and the defendant did not argue to the contrary at the probation revocation hearing. The fact that White was cross-examined at the preliminary hearing, as well as the greater flexibility necessitated at revocation hearings, convinces us that the defendant's right to due process was not violated by the use of White's previous testimony. See Black v. Romano, 471 U.S. 606, 613, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985).
Citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000), and State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998), the defendant argues on appeal that the State did not follow the proper procedure in seeking to utilize the preliminary hearing testimony as a prior statement of White and, even if the statement were admissible, it could not be used as substantive evidence. As the defendant anticipated, we initially distinguish the holding in Martin because it dealt with use of a prior statement under Tennessee Rule of Evidence 613, rather than Rule 804, as was the case in the present appeal. Additionally, we distinguish these holdings because the evidentiary issues in both arose during a jury trial, rather than, as in the present case, a probation revocation hearing, where the rules of evidence are more flexible.
We conclude that White's testimony at the preliminary hearing was sufficient to establish that the defendant committed aggravated assault against White, who said that the defendant held a kitchen knife with a four-inch blade to her throat. This testimony established by a preponderance of the evidence that the defendant committed aggravated assault and thus violated his probation. Although we are unable to determine, due to the limited record, whether there was sufficient evidence to establish whether the defendant committed three counts of child neglect by a preponderance of the evidence, the aggravated assault charge was a sufficient basis for revoking the defendant's probation even if the child neglect charges were dismissed. As such, we cannot find that the trial court abused its discretion in revoking the defendant's probation.
B. Victim's Written Statement in Support of Petition for Order of Protection
The defendant argues on appeal that the trial court erred in considering White's written statement in support of her petition for an order of protection, saying that its use violated his right to due process because he was not notified that this statement would be used against him and this evidence was outside the record.
We addressed a similar claim in Stamps v. State, 614 S.W.2d 71, 73 (Tenn.Crim.App. 1980), wherein the defendant's probation was revoked because she was arrested for larceny and continued to live with a married man despite a court order to refrain from such conduct. The trial court "found out" that the defendant was still living with the same married man and revoked her probation. Id. As in the present case, Stamps argued that the trial court erred in conducting a separate investigation and relying on evidence outside of the hearing. Id. at 74. This court agreed, concluding that a probation revocation could not be based upon evidence which the probationer had not heard or had the opportunity to test by cross-examination or presentation of contrary evidence. The error inStamps was harmless, however, because the evidence from the court's independent investigation was not the only evidence upon which the trial court based its decision to revoke the defendant's probation. Id. In the present matter, we conclude, likewise, that it was error to consider as evidence in the revocation proceeding the written statement of White prepared to obtain an order of protection. However, in this case, as inStamps, additional evidence exists which supports the revocation. Accordingly, the error in considering the evidence was harmless.
In summary, we conclude that White's preliminary hearing testimony was properly considered and utilized as substantive evidence by the court because she was "unavailable" for the revocation hearing as the result of her lack of memory. With this evidence, the record supports the court's determination that, by a preponderance, the State established that the defendant had assaulted White and, thus, violated the conditions of his probation. While we agree that White's statement submitted with the order of protection was not appropriately considered in the revocation proceeding, other evidence adequately supported the court's revocation order.
CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the order of the trial court.