Chasteen v. State, CR-93-171

• Decision Date: 17 June 1994
• Docket Number: CR-93-171
• Parties: Jerry Anthony CHASTEEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 319

652 So.2d 319

Jerry Anthony CHASTEEN v. STATE.

CR-93-171.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied July 29, 1994.

Certiorari Denied Dec. 9, 1994

Alabama Supreme Court 1931566.

Mark A. Dutton, Moulton, for appellant.

James H. Evans, Atty. Gen., and Gail Hampton, Asst. Atty. Gen., for appellee.

ON RETURN TO REMAND

TAYLOR, Judge.

The appellant, Jerry Anthony Chasteen, appealed from the revocation of his probation. We remanded this cause so that the circuit court could furnish the appellant with written findings as to the reasons it relied on in revoking his probation. Chasteen v. State, 652 So.2d 318 (Ala.Cr.App.1994). The court filed the following findings on return to remand:

"(1) That there was reasonable and probable cause to believe that the probationer exposed himself to K.A. at River Oaks Shopping Mall, Decatur, Alabama, on 9-6-93, in violation of the laws of the State of Alabama, and

"(2) That there was reasonable and probable cause to believe that the probationer did expose himself to C.C. at River Oaks Shopping Mall, Decatur, Alabama, on 9-6-93, in violation of the laws of the State of Alabama, and

"(3) That the commission of the offenses, set out in (1) and (2) above, were violations of the terms of defendant's probation."

The appellant argues that there was not sufficient reliable evidence for the court to revoke his probation. The appellant has preserved this issue by raising this issue in his motion for reconsideration. Hollis v. State, 598 So.2d 38 (Ala.Cr.App.1992).

The appellant's probation was revoked solely on the hearsay testimony of Officer Mike Cowart of the Decatur Police Department, who testified that he spoke with K.A. and her daughter and that they told him that a man matching the appellant's description had exposed himself to them at a shopping center in Decatur.

This court has many times in the past held that hearsay testimony may not form the sole basis for revoking an individual's probation. Williams v. State, 557 So.2d 857 (Ala.Cr.App.1990); Patton v. State, 551 So.2d 1179 (Ala.Cr.App.1989); Weaver v. State, 515 So.2d 79 (Ala.Cr.App.1987); Mitchell v. State, 462 So.2d 740 (Ala.Cr.App.1984); Watkins v. State, 455 So.2d 160 (Ala.Cr.App.1984); Moore v. State, 432 So.2d 552 (Ala.Cr.App.1983); Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977).

As Judge Patterson stated in Mitchell v. State, 462 So.2d 740, 742 (Ala.Cr.App.1984):

"The question for us in the instant case is, therefore, whether the testimony of Officer Sexton, when added to the evidence revealed by the probation officer's testimony and report, provided sufficient evidence to support Mitchell's probation revocation. 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'. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

"This court has held that 'probation cannot be revoked solely upon hearsay evidence'. Moore v. State, 432 So.2d 552 (Ala.Crim.App.1983); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984). The only evidence presented against Mitchell in this hearing was hearsay. Neither the victim, nor any other witness who could have identified the appellant as the perpetrator of the crime, testified. Although Probation Officer Cockes said that his report indicated Mitchell had made an inculpatory statement to police, no other evidence was offered to support this allegation. Officer Sexton was not present when the crime was committed, and he arrested Mitchell solely upon the information given to him by others.

"While it is not necessary that a probationer be convicted of the charged offense before his...