REL: 10/03/2014 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2013-2014 Mark Caleb English v. State of Alabama Appeal from Mobile Circuit Court (CC-10-1465.70; CC-10-1466.70; CC-10-3303.70) JOINER, Judge. Mark Caleb English appeals his probation revocation. We reverse and remand. In September 2010, English pleaded guilty to third-degree burglary, see 13A-7-7, Ala. Code 1975, and first-degree
theft of property, see 13A-8-3, Ala. Code 1975. English was sentenced to 15 years' imprisonment on each conviction; the sentences were to be served concurrently. Furthermore, English's sentences were split, and English was ordered to serve two years in the "Front End Diversion Program" at Mobile Community Corrections, followed by three years' probation. In January 2011, English pleaded guilty to second-degree theft of property, see 13A-8-4, Ala. Code 1975. English was sentenced to 20 years' imprisonment, which was split so English would serve 3 years in the "Front End Diversion Program" at the Mobile Community Corrections; that sentence was suspended, and English was ordered to serve five years' probation. The sentence was to run concurrently with English's other sentences. On March 28, 2014, English's probation officer filed in the circuit court a delinquency report alleging that English had violated the terms of his probation by being arrested on new offenses--specifically, two counts of first-degree receiving stolen property, two counts of second-degree receiving stolen property, and one count of first-degree theft of property--as well as failing to pay court costs and 2
supervision fees. (C. 62.) A probation-revocation hearing -at which English was represented by appointed counsel -was held on April 15, 2014. At the hearing, the State offered the testimony of three witnesses. Fred Dixon, an employee with Mobile Community Corrections, testified that he was not English's probation officer but that he was one of the keepers of the correctional records, and the records reflected that English had been informed of the rules and conditions of being an inmate on front-end diversion. Lorraine Bonine, an alleged victim, testified that on February 21, 2014, she came home and discovered that her openbed trailer was missing from her driveway. Bonine testified that the value of the trailer was $1,000 and that she had not given anyone permission to take the trailer. Bonine could not identify English as someone she knew or had ever met. The State's final witness, Assistant Police Chief Gary Davis, an employee with the City of Creola, testified to the following: On February 22 and 23, 2014, three complaints were reported and filed with the Creola Police Department. Those 3
complaints included the theft of Bonine's trailer, the burglary of William Croon's residence, and the theft from a residence belonging to William English, English's cousin. English was developed as a suspect after he was observed taking scrap from one of the alleged victims. With that information, Davis contacted Alter Scrap Yard in Chickasaw and learned that English had sold scrap, including phone boxes, bicycle frames, and old lawn mowers at the scrap yard. Davis received photographs and receipts of the scrap that English had sold to the scrap yard. In the photographs, English was shown driving a silver Toyota pickup truck. Davis also received a copy of a $676.39 check representing the amount the scrap yard had paid English for a trailer and the scrap. 1 On February 24, Davis interviewed George Reed, Croon's neighbor, who stated that he saw a truck matching the description of a truck driven by English pulling a trailer that was backed up to Croon's residence. Reed also stated to Davis that at the same time a white male was walking back and forth on Croon's property. Davis then interviewed Christina 1 On cross-examination, Davis admitted that Bonine's trailer was not the trailer that had been sold at the scrap yard. 4
Roberts, William English's sister-in-law, who stated that she had seen English driving a silver truck pulling a black trailer that fit the description of Bonine's trailer. Afterward, Zack English, English's brother, contacted Davis and stated that he had found the trailer English had stolen and that it was at a residence in Wilmer belonging to Nathan Fields. Fields contacted Davis and stated that English had brought the trailer to his house. Davis recovered the trailer from Field's residence and discovered that its VIN number had been scratched off and the tag removed. identified the trailer as belonging to her. Bonine later Davis also recovered several items loaded on the trailer including a generator, a push mower, a "Metabo" grinder, a blue "Job Box," an attic fan, and a weed eater. Croon identified the items on the trailer as some of the items that had been reported stolen from his residence. Davis also showed Croon one of the photographs taken at the scrap yard and determined that some of the items piled on the trailer in the photograph belonged to Croon. Davis testified that to sell scrap, a person must present a photo identification and that English had presented 5
his photo identification when he sold some of the stolen items as scrap. Davis also testified that Croon stated that he had been contacted by Zack English who told him that he had several of Croon's items sitting in the back of a truck parked at Zack English's residence. The truck parked at Zack English's residence matched the description of English's truck. On February 25, Davis went to William English's residence and showed him photographs of the scrap from the scrap yard. William English identified the carbon-steel boxes, car parts, telephone boxes, and lawn mowers as belonging to him. Based on his investigation, Davis issued warrants to arrest English for the theft of Bonine's trailer, as well as for the theft of property from William Croon and William English. Following the hearing, the circuit court entered an order revoking English's probation. The order, in relevant part, states: "The Court is reasonably satisfied that the defendant violated the rules of Front End Diversion and terms and conditions of probation in that he committed offenses of receiving stolen property, theft of property at leas[t] in the second degree, and multiple cases of receiving. Therefore, the 6
Court orders a full remand and revocation, for the defendant to complete the balance of his sentences with the Department of Corrections." (C. 59-60.) English appeals. On appeal, English argues that the circuit court erred by revoking his probation based solely on hearsay evidence pursuant to Ex parte Dunn, [Ms. 1121506, June 6, 2014] So. 3d (Ala. 2014). English argues that "there is no evidence to corroborate the hearsay testimony of Assistant Chief Davis, which is the only evidence supporting the Trial Court's decision." (English's brief, p. 18.) In Dunn, the appellant argued that "the only evidence connecting the clothing to the burglary for which Dunn's probation was sought to be revoked was hearsay" and that "the trial court's decision was based entirely on hearsay and the Court of Criminal Appeals' affirmance of that decision conflicts with Goodgain [v. State, 755 So. 2d 591, (Ala. Crim. App. 1999)]." So. 3d at. The Alabama Supreme Court agreed with Dunn and stated: "In Goodgain, the defendant, William Lindsey Goodgain, appealed the revocation of his probation, arguing that it was based on hearsay evidence that he had committed a new criminal offense of robbery. The Court of Criminal Appeals noted: 7
"'At the revocation hearing, the State presented one witness: Gregory Johnson, a detective with the Birmingham Police Department. Detective Johnson testified that on December 13, 1998, he received an offense report prepared by an unidentified officer regarding a robbery that had allegedly occurred on December 12, 1998. According to Detective Johnson, the offense report indicated that the victim of the robbery had stated that Goodgain and another individual had come to her home and had robbed her a gunpoint, taking $500 in cash and a necklace. Detective Johnson stated that after he received the offense report, he conducted a live lineup and a photographic lineup as part of his investigation of the robbery. He testified that the victim identified Goodgain in the live lineup, and the victim's daughter, who was present during the robbery, identified Goodgain in the photographic lineup. Detective Johnson said that on December 17, 1998, he obtained an arrest warrant for Goodgain for the crime of robbery in the first degree. No other evidence was offered at the hearing to support the allegation in the probation officer's delinquency report. At the time of the revocation hearing, Goodgain had yet to be tried on the robbery charge.' "755 So. 2d at 592. "The Court of Criminal Appeals stated: '"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.'"' 755 So. 2d at 592 (quoting Mitchell v. State, 462 So. 2d 740, 742 8
(Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So. 2d 620, 623 (1975)). However, the Court of Criminal Appeals also stated: '[H]earsay 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."' 755 So. 2d at 592 (quoting Clayton v. State, 669 So. 2d 220, 222 (Ala. Crim. App. 1995)). "The Court of Criminal Appeals in Goodgain determined that 'the only evidence that Goodgain violated his probation by committing another crime was Detective Johnson's hearsay testimony regarding the statements of the robbery victim contained in the offense report and regarding the lineup identifications of Goodgain by the victim and her daughter.' Goodgain, 755 So. 2d at 592. The Court of Criminal Appeals concluded: "'Because the State failed to present any evidence, other than the hearsay testimony of Detective Johnson, indicating that Goodgain had, in fact, committed the alleged robbery, the trial court erred in revoking Goodgain's probation. Accordingly, the trial court's order revoking Goodgain's probation is reversed and this cause is remanded for the court to hold another revocation hearing.' "755 So.2d at 593." Dunn, So. 3d at. The Alabama Supreme Court then held: "Here, the State acknowledges that it 'relied on hearsay evidence' in the revocation hearing, but it 9
argues that 'it corroborated the hearsay evidence when it relied on nonhearsay evidence--gibbons's testimony regarding the testing that she performed on the blood sample that ultimately matched Dunn's profile that was stored in a database containing DNA profiles from felons and misdemeanors throughout the state.' State's brief, at 11. However, the State provided no nonhearsay evidence, from Gibbons or anyone else, as to where the pants from which the blood sample was taken were found or connecting those pants to the robbery. Gibbons testified that the evidence-submission form indicated that 'there was clothing that was found discarded along with [Olensky's] stolen property next door from the scene,' but she had no personal knowledge of that discovery. Detective Shirey testified that Officer McKinley had found the pants, but Detective Shirey had no personal knowledge as to where they had been found. No testimony from Officer McKinley was offered at the revocation hearing. Thus, as was the case in Goodgain, the only evidence connecting Dunn to the alleged commission of the robbery was hearsay evidence. "... "As noted previously, the State has not corroborated by nonhearsay evidence the hearsay evidence connecting the pants, and by extension Dunn, to the burglary. Thus, as in Goodgain, 'the State failed to present any evidence, other than the hearsay testimony of Detective [Shirey], indicating that [Dunn] had, in fact, committed the alleged [burglary],' 755 So. 2d at 593, and the Court of Criminal Appeals' decision, affirming the trial court's judgment, conflicts with Goodgain. For the foregoing reasons, we reverse the Court of Criminal Appeals' judgment and remand the cause for further proceedings consistent with this opinion." 10
So. 3d. Based on the Alabama Supreme Court's holding in Dunn, we must agree with English's argument that the State has not presented any nonhearsay evidence to corroborate the hearsay testimony of Assistant Chief Davis. 2 The only evidence connecting English to the alleged burglary and thefts was the hearsay testimony of Assistant Chief Davis. Accordingly, we reverse the circuit court's order revoking English's probation, and we remand the case to the circuit court for proceedings consistent with the Alabama Supreme Court's opinion in Ex parte Dunn, supra. REVERSED AND REMANDED. Windom, P.J., and Welch and Kellum, JJ., concur. Burke, J., dissents, with opinion. 2 In his dissenting opinion, Judge Burke notes that "Davis identified some of the items being hauled by the truck in the photograph as some of the items that had been reported to him as stolen." So. 3d at. Just as Gibbons's testimony in Dunn regarding where the pants were found was based solely on hearsay, however, Davis's testimony that the items in the photograph were the items that were reported stolen was based solely on hearsay. 11
BURKE, Judge, dissenting. I respectfully dissent from the majority's decision to reverse the circuit court's order revoking Mark Caleb English's probation. Specifically, I disagree with the main opinion's conclusion that Ex parte Dunn, [Ms. 1121506, June 6, 2014] So. 3d (Ala. 2014), mandates the reversal of the circuit court's order revoking English's probation. Initially, I note that I continue to disagree with Dunn, and I invite the Alabama Supreme Court to revisit or at least limit that decision. Contrary to the holding in Dunn, I do not believe that this Court's prior decision in Goodgain v. State, 755 So. 2d 591 (Ala. Crim. App. 1999), necessitated the conclusion the Supreme Court reached in Dunn, and I believe Dunn conflicts with prior decisions of the Supreme Court, including its decision in Sams v. State, 48 So. 3d 665 (Ala. 2010). Nevertheless, I find that the present case is distinguishable from Dunn. "'[I]t is well settled that hearsay evidence may not form the sole basis for revoking an individual's probation.'" Sams v. State, 48 So. 3d 665, 668 (Ala. 2010) (quoting Goodgain v. State, 755 So. 2d 591, 592 (Ala. Crim. App. 1999) (emphasis 12
added)). This rule arises from due-process considerations and from a concern that "'[t]he 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 the information that forms the basis of the revocation.'" Id. Furthermore, "the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation." Mitchell v. State, 462 So. 2d 740, 742 (Ala. Crim. App. 1984). "'If merely being arrested is sufficient for revocation, then revocation would lie within the discretion of police officers, rather than judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant's conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.'" Mitchell, 462 So. 2d at 742 (quoting Hill v. State, 350 So. 2d 716 (Ala. Crim. App. 1977)). As the Alabama Supreme Court has recognized: "In both Mitchell and Goodgain the State presented only hearsay evidence to support a finding that the probationer had violated the conditions of 13
his probation by committing a new offense. The State did not present a witness with personal knowledge of the charged offense who could identify the probationer as the perpetrator of the new offense. Indeed, the officers who testified at the probation-revocation hearings in those cases were not present when the new offenses were committed and the arrests were not based on either officer's personal knowledge or witnessing of the offense. Consequently, because only hearsay evidence was presented connecting each probationer to the charged offense, the evidence in both cases was insufficient to support the probation revocations, and the circuit court in each case exceeded the scope of its discretion in revoking the probations." Sams, 48 So. 3d at 670 (emphasis added). In Sams, the Alabama Supreme Court stated: "'"'Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.'" "'Martin v. State, 46 Ala. App. 310, 312, 241 So. 2d 339, 341 (Ala. Crim. App. 1970) (quoting State v. Duncan, 270 N.C. 241, 154 S.E.2d 52 (1967) (citation omitted)). Under that standard, the trial court need "only be reasonably satisfied from the evidence that the probationer has violated 14
the conditions of his probation." Armstrong v. State, 294 Ala. 100, 103, 312 So. 2d 620, 623 (1975). Absent a clear abuse of discretion, a reviewing court will not disturb the trial court's conclusions. See Moore v. State, 432 So. 2d 552, 553 (Ala. Crim. App. 1983) and Wright v. State, 349 So. 2d 124, 125 (Ala. Crim. App. 1977).' "Ex parte J.J.D., 778 So. 2d [240,] 242 [(Ala. 2000)]. See Rule 27.6(d)(1), Ala. R. Crim. P. (Providing that at a revocation hearing the 'court may receive any reliable, relevant evidence not legally privileged, including hearsay,' and the court must be reasonably satisfied from the evidence that a violation of probation occurred before revoking probation). Whether to admit hearsay evidence at a probation-revocation hearing is within the discretion of the court. Puckett v. State, 680 So. 2d 980, 981 (Ala. Crim. App. 1996). "... "To summarize, at a probation-revocation hearing a circuit court must examine the facts and circumstances supporting each alleged violation of probation. The court may consider both hearsay and nonhearsay evidence in making its determination. The hearsay evidence, however, must be reliable, and it cannot be the sole evidence supporting the revocation of probation. Thus, a circuit court must assess the credibility of the particular witnesses at the probation-revocation hearing, the reliability of the available evidence, and the totality of the evidence in each individual case to determine whether it is reasonably satisfied that the probationer has violated a term of his or her probation and that revocation is proper. Moreover, an appellate court will disturb a circuit court's decision only if the record establishes that the circuit court exceeded the scope of its discretion." 15
Sams, 48 So. 3d at 667-68 (footnote omitted). The Supreme Court then held: "In this case, the record establishes that the circuit court did not exceed the scope of its discretion in revoking Sams's probation. Hearsay evidence was not the sole basis on which the circuit court found that Sams had violated the terms of his probation by committing a new offense. The State presented a mixture of nonhearsay and hearsay evidence indicating that Sams contributed to the delinquency or dependency of a child or to a child's being in need of supervision. Officer Francis testified as to his personal knowledge of Sams's commission of the new offense. Officer Francis testified that on the night before Sams was arrested for contributing to the delinquency or dependency of a child or to the child's being in need of supervision, he had found Sams with D.M.D., a minor, and had returned D.M.D. to her grandmother. He further testified that he saw Sams with D.M.D. in the bedroom of the apartment on the night Sams was arrested for contributing to the delinquency or dependency of a child or to a child's being in need of supervision and witnessed his arrest. Officer Francis's testimony unequivocally linked Sams to the new offense. Although hearsay evidence was presented to establish that D.M.D. was 16 years old, the circuit court could have determined that the hearsay evidence was reliable in light of Officer Francis's personal knowledge of this incident and his prior incident involving Sams and D.M.D. Consequently, in this case, unlike Mitchell and Goodgain in which the State relied solely on hearsay evidence to support a finding that the probationer had committed a new offense, the State presented both reliable hearsay and nonhearsay evidence, as permitted under Rule 27.6(d), Ala. R. Crim. P., to establish that Sams had violated one of the terms of his probation. The record indicates that the State presented sufficient evidence from which the circuit court could be 16
reasonably satisfied that Sams had violated one of the terms of his probation by committing a new offense and that the circuit court did not exceed the scope of its discretion in revoking Sams's probation." Sams, 48 So. 3d at 670. In Sams, an element of the new offense - proof that the victim was a "child" - was based solely on hearsay evidence. Therefore, under Sams, the State clearly does not have to establish every element of the new offense with nonhearsay evidence, and a mixture of nonhearsay and hearsay evidence can constitute sufficient evidence from which the circuit court can be reasonably satisfied that the defendant violated the terms of his probation by committing a new offense. In the present case, the main opinion notes that "[j]ust as Gibbons's testimony in Dunn regarding where the pants were found was based solely on hearsay,... Davis's testimony that the items in the photograph were the items that were reported stolen was based solely on hearsay." English, So. 3d at n.2. However, again, in Sams evidence establishing that the victim was a child was based solely on hearsay. Thus, whether an element of the new offense is based solely on hearsay cannot be the sole factor in determining whether the circuit court 17
could be reasonably satisfied that the defendant violated one of the terms of his probation by committing a new offense. In Dunn, contrary to the situations in Mitchell and Goodgain, the State did not present only hearsay evidence. Instead, the State presented nonhearsay testimony regarding DNA results of a blood sample that was taken from a pair of pants and that matched to Dunn's DNA. The Alabama Supreme Court held that that nonhearsay evidence was insufficient to support the revocation of Dunn's probation because the State did not provide additional nonhearsay evidence concerning where the pants were found - although there was hearsay evidence indicating that the pants had been found with the stolen property. Specifically, the Supreme Court held that "the State has not corroborated by nonhearsay evidence the hearsay evidence connecting the pants, and by extension Dunn, to the burglary." Dunn, So. 3d at. In Dunn, the Supreme Court did not distinguish Sams or other cases in which the appellate courts have held that the State's presentation of a mixture of nonhearsay and hearsay evidence was sufficient to support the revocation of the defendant's probation. Although not explicitly stated, it 18
appears that the distinction between Dunn and the cases that held that the State's presentation of a mixture of nonhearsay and hearsay evidence was sufficient is that the Alabama Supreme Court determined that the nonhearsay evidence in Dunn was unreliable as a matter of law because it was too indirect or lacked a sufficient nexus to the new offense. In Dunn, although the State presented nonhearsay evidence, that nonhearsay evidence was not direct evidence of the offense and that circumstantial nonhearsay evidence was incomplete or contained a missing link to the new offense, i.e., there was not any nonhearsay evidence concerning "where the pants from which the blood sample was taken were found or connecting those pants to the robbery." Dunn, So. 3d at. In the present case, I believe the nonhearsay evidence is more analogous to the nonhearsay evidence in Sams than to the nonhearsay evidence in Dunn. As the main opinion states, Assistant Chief Davis testified that he personally contacted Alter Scrap Yard in Chickasaw and learned that English had sold scrap including phone boxes, bicycle frames, and old lawn mowers at the scrap yard. Davis personally obtained photographs and receipts from the scrap yard. Davis had those 19
photographs with him at the probation-revocation hearing. Davis identified English as the person in the photograph driving a silver Toyota pickup truck pulling a loaded trailer as it entered the scrap yard, and Davis identified some of the items being hauled by the truck in the photograph as some of the items that had been reported to him as stolen. Also, the license plate number of the pickup truck was visible in the photograph. Davis testified that the pickup truck was owned by English's wife. Another photograph showed the silver Toyota pickup truck leaving the scrap yard, unloaded and 3 without the trailer. (R. 23.) Davis testified that he personally looked at the scrap yard's records and that English had presented a photo identification when he sold property to the scrap yard. Davis also received a copy of a $676.39 check representing the amount the scrap yard had paid English for a trailer and the scrap. In the present case, the State presented nonhearsay evidence from Assistant Chief Davis that was based on his personal knowledge or observation and that, if believed, would 3 As the main opinion notes, on cross-examination, Davis admitted that Bonine's trailer was not the trailer that had been sold at the scrap yard. 20
prove elements of the new offenses. English had the opportunity to confront and to cross-examine Davis concerning the photographs and any of the other information that Davis had personally obtained. The revocation of English's probation was not based solely on hearsay evidence or solely on the filing of charges or an arrest; thus, his revocation did not lie solely within the discretion of police officers. The circuit court had the opportunity to consider both the hearsay and nonhearsay evidence, assess the credibility of Assistant Chief Davis, and determine whether the evidence was reliable. Based on the totality of the evidence, I find that the circuit court did not exceed the scope of its discretion in deciding that it was reasonably satisfied that English had violated a term of his probation and that revocation is proper. Unlike the situation in Dunn or Goodgain, in the present case, the State has not "'failed to present any evidence, other than the hearsay testimony of [Assistant Chief Davis], indicating that [English] had, in fact, committed the alleged [new offenses].'" Dunn, So. 3d at (quoting Goodgain, 755 So. 2d at 593). Therefore, because the circuit court did not exceed the scope of its discretion when it 21
revoked English's probation, I would affirm the circuit court's judgment. Based on the foregoing, I respectfully dissent. 22