Opinion
CR-20-0249
09-03-2021
Antwan WILLIAMS v. STATE of Alabama
Brian J. Lockwood, Mobile, for appellant. Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen, for appellee.
Brian J. Lockwood, Mobile, for appellant.
Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen, for appellee.
MINOR, Judge.
Antwan Williams appeals the revocation of his probation. Williams argues that the circuit court improperly revoked his probation based solely on hearsay evidence. For the reasons below, we agree.
In December 2018, Williams was convicted of second-degree assault, see § 13A-6-21, Ala. Code 1975, and was sentenced to 78 months' imprisonment; that sentence was split and he was ordered to serve the time he had already served followed by 2 years probation. (C. 8.)
In May 2019, Williams's probation officer filed a delinquency report charging Williams with violating the conditions of his probation by failing to report. (C. 8.) In July 2019, Williams's probation officer filed a supplemental delinquency report charging Williams with violating the conditions of his probation by having an arrest for new criminal conduct--i.e., first-degree receiving stolen property. (C. 13.) In November 2020, Williams's probation officer filed a second supplemental delinquency report charging Williams with violating the conditions of his probation by having an arrest for new criminal conduct--i.e., murder. (C. 30.) A probation-revocation hearing was held on December 21, 2020.
Regarding the murder arrest, law enforcement responded to the scene of the location of a deceased person, the victim Joshua Baker, who had been shot at 710 Louise Drive West in Mobile. On the scene, several of Baker's family members were present and advised law enforcement that Williams was the person who shot Baker. On cross-examination, Detective Jermaine Rogers testified that Williams and Baker were cousins and that Williams shot Baker over a missing gun. About eight fired 9-millimeter cartridges were found in the yard of the house. A preliminary hearing was held on Williams's murder charge, which was bound over to the Mobile grand jury by a district court judge.
Probation Officer Kevin Nelson testified that he had filed each of Williams's three delinquency reports. On December 22, 2020, the circuit court issued a written order revoking Williams's probation for failing to report and for having an arrest for murder. (C. 37-38.) Williams appeals.
On appeal, Williams argues that the circuit court erred by revoking his probation based on what he says was "pure hearsay evidence." (Williams's brief, p. 7.)
"[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. 100, 103, 312 So. 2d 620, 623 (1975) ). "However, ‘hearsay evidence may not form the sole basis for revoking an individual's probation .... "The use of hearsay 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) ).
Before revoking Williams's probation, Williams asked the circuit court to recount the nonhearsay evidence it relied on:
"THE COURT: Right. Well, what I understood the detective--I think that's a fair question. I think, in addition to what the detective said with regard to the witness statements, my impression was, from the testimony of Detective Rogers, that he was present at the scene and he did--I mean, he was involved in the collection of evidence, which included eight 9 millimeter casings that were recovered from the scene, which corroborated the testimony of the witnesses that he did get statements from.
"And also, on top of that--I realize it's a different burden of proof--but the Court takes judicial notice of the record from the District Court he has been bound over to the Grand Jury on this charge, that Judge having found there to be probable cause. So that's the basis of
my--that, along with the testimony regarding his witnesses, that was the basis of my revocation."
(R. 21-22.)
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.
No nonhearsay evidence supports a finding that Williams violated the terms and conditions of his probation by committing a new offense. Indeed, the State presented "pure hearsay evidence"--Detective Rogers's testimony including statements that the witnesses to the killing of Baker had made to him. And the nonhearsay evidence connecting the 9-millimeter casings to Williams and the offense was not sufficient. See Walker v. State, 294 So. 3d 825, 834 (Ala. Crim. App. 2019) ("[T]here must exist nonhearsay evidence connecting the defendant to the offense.")
The circuit court also found that Williams committed the technical violation of failing to report. (C. 37.)
For these reasons, the State did not present sufficient nonhearsay evidence to support the revocation of Williams's probation; thus, we reverse the circuit court's judgment and remand the case to the circuit court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.