State v. Maurice Johnson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
February 13, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9705-CR-00175
)
) Knox County
v. )
) Honorable Richard Baumgartner, Judge
)
MAURICE TRAVON JOHNSON, ) (Probation Revocation)
)
Appellant. )
For the Appellant: For the Appellee:
Mark E. Stephens John Knox Walkup
District Public Defender Attorney General of Tennessee
and and
John Halstead Georgia Blythe Felner
Assistant Public Defender Assistant Attorney General of Tennessee
1209 Euclid Avenue 450 James Robertson Parkway
Knoxville, TN 37921 Nashville, TN 37243-0493
(AT TRIAL)
Randall E. Nichols
Mark E. Stephens District Attorney General
District Public Defender and
and Paula Gentry and C. Leon Franks
Paula R. Voss Assistant District Attorney General
Assistant Public Defender City County Building
1209 Euclid Avenue Knoxville, TN 37902
Knoxville, TN 37921
(ON APPEAL)
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Maurice Travon Johnson, appeals as of right from the
revocation of his probation by the Knox County Criminal Court. He contends that the
trial court abused its discretion by revoking his probation. We affirm the revocation.
On March 8, 1996, the defendant was convicted of possessing cocaine
with the intent to sell and deliver and of introducing drugs into a penal facility. He
received consecutive, Range I sentences of eight years and five years, respectively.
On August 15, 1996, the defendant’s sentences were suspended, and the defendant
was placed under the supervision of the Community Alternatives to Prison Program
(“CAPP”) for a period of thirteen years. On October 30, 1996, a probation revocation
warrant was filed against the defendant, alleging that he had violated the conditions of
his probation (1) by possessing or using alcohol or controlled substances, (2) by failing
to make a full and accurate report to his case manager, and (3) by failing to keep his
curfew.
At the probation revocation hearing, Katherine Hancock testified that she
was employed by the Knox County Community Alternatives to Prison Program and that
she supervised the defendant. She stated that the defendant was placed in the CAPP
Care Program, where he was required to participate in six weeks of treatment followed
by job placement and follow-up treatment. She said that during the first six weeks, the
defendant did an excellent job. However, Ms. Hancock testified that the defendant had
a lot of problems with cocaine and that every drug screen that she gave to the
defendant was positive for cocaine. She said that the defendant admitted his drug use
to her.
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Ms. Hancock stated that she then arranged for the defendant to attend
Another Chance, an in-patient treatment program. She said that the defendant
attended Another Chance for approximately one month. Ms. Hancock testified that
after a court appearance on October 11, the treatment coordinator for Another Chance
notified her that the defendant had stopped attending group meetings for a week and
that he had tested positive again for cocaine use. Ms. Hancock stated that the
defendant also failed to report regularly to CAPP after October 11 and did not return the
messages that she left at the defendant’s girlfriend’s house. She said that she then
prepared a probation revocation warrant. Ms. Hancock testified that she believed that
the defendant would no longer benefit from further rehabilitation efforts by CAPP.
The defendant testified that he had a problem with crack cocaine. He
conceded that he used cocaine while participating in CAPP and that a drug screen
given before October 11 showed that he had used cocaine. He blamed his drug use
during the program on depression. He admitted that following a court appearance on
October 11, the trial court gave him thirty days to comply with the conditions of his
probation and warned him that it would revoke his probation if he did not stop using
drugs. The defendant stated that he stopped using drugs after the hearing, and he
claimed that he was not given any more drug tests. He explained that after the hearing,
he attended the in-patient program but missed a week of treatment because he was
sick with the flu. He claimed that he called the receptionist at Another Chance each
day that he missed, and he said that the reason he did not contact his CAPP supervisor
was that he believed that the personnel at Another Chance contacted CAPP. He said
that he did not return for treatment because he was notified a few days before his next
court appearance on November 1 that his insurance refused to pay for the treatment
due to his absences. Rather than reporting his absences to CAPP, the defendant
chose instead to appear in court.
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At the conclusion of the hearing, the trial court revoked the defendant’s
probation and ordered the defendant to serve the remainder of his sentence in the
custody of the Department of Correction. In revoking the defendant’s probation, the
trial court stated:
[I]t’s clear that you have a serious problem with the cocaine
abuse. And I think that that’s affected your entire lifestyle for
a significant period of time here. I was hoping -- I was
optimistic, very candidly, back in August -- that you might have
a shot at making it on the Care Program, but it just didn’t work
out.
The most amazing thing to me is that when you were
here in October, and I . . . explained to you very clearly that it
was your absolutely last opportunity to get in compliance. And
I candidly don’t find it very difficult to believe that whether you
were sick or not, that you couldn’t even make a phone call or
contact the people at the CAP Office. There’s no question you
are in violation.
In its written revocation orders, the trial court stated that it found that the defendant was
“guilty of violating the laws of this State, and has otherwise violated the conditions of his
probation.”
Initially, the defendant contends that his due process rights were violated
because the trial court did not adequately place its findings on the record. He cites
State v. Billy Carter, No. 03C01-9506-CR-00159, Sullivan County, slip op. at 6 (Tenn.
Crim. App. Apr. 16, 1996), in which this court stated that “the trial court’s failure to make
findings of fact in accordance with the principles of due process . . . coupled with the
records’ failure to reflect that the appellant was given written notice of the claimed
probation violation” required a remand for further proceedings to be conducted in
accordance with due process. We do not believe that the defendant’s due process
rights were violated. Although the trial court should have been more specific in its
factual findings, it obviously found that the defendant violated the conditions of his
probation by continuing to use drugs after being warned in October and by failing to
report to his supervisor at CAPP.
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If the trial court finds by a preponderance of the evidence that a defendant
violated a condition of his probation, it is within the trial court’s discretion to revoke the
defendant’s probation and cause execution of the judgment as it was originally entered.
T.C.A. §§ 40-35-310, -311(d); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). For an appellate court to find an abuse of discretion and reverse a trial court’s
revocation of probation, it must be demonstrated that the record contains no substantial
evidence to support the conclusion of the trial court that a violation of the conditions of
probation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. Crim. App. 1991).
The defendant asserts that the trial court abused its discretion by revoking
his probation because the evidence is insufficient to support a finding that he violated
the conditions of his probation. He argues that the only proof that the defendant used
cocaine after the trial court’s warning on October 11 was hearsay. He contends that his
right to confrontation was violated by the admission of Ms. Hancock’s testimony that the
treatment coordinator for Another Chance notified her that a drug screening showed
that the defendant had used cocaine. However, the defendant failed to object to the
introduction of the evidence. “When no objection to testimony is interposed, such
testimony may be properly considered and given its natural probative effect as if it were
in law admissible.” State v. Carney, 752 S.W.2d 513, 514-15 (Tenn. Crim. App. 1988).
Under these circumstances, the trial court was entitled to rely upon Ms. Hancock’s
testimony regarding the defendant’s continuing use of cocaine to revoke his probation.
Although the defendant also argues that there is nothing in the record to
indicate that he was required to communicate directly with his CAPP supervisor, the
record does not contain a complete list of the defendant’s conditions of probation. At
the revocation hearing, the defendant did not dispute that he was required to
communicate with CAPP. Instead, he testified that he understood that the personnel at
the Another Chance program was contacting CAPP for him. Based on the record
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before us, we cannot say that the record preponderates against the trial court’s finding
that the defendant violated his probation by failing to make a full and truthful report to
his case manager.
The evidence in this case does not preponderate against the trial court's
conclusion that the defendant has failed to comply with the conditions of his release.
We hold that the trial court properly revoked the defendant’s probation. The judgment
of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge
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