Ex parte JJD

• Decision Date: 16 June 2000
• Parties: Ex parte J.J.D., Jr. (Re J.J.D., Jr. v. State).
• Court: Alabama Supreme Court

778 So.2d 240

Ex parte J.J.D., Jr.

(Re J.J.D., Jr. v. State).

1982065.

Supreme Court of Alabama.

June 16, 2000.

James M. Byrd, Mobile, for petitioner.

Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent.

PER CURIAM.

J.J.D., Jr. ("J.J.D."), appealed from the Mobile Circuit Court's order revoking his probation. The Court of Criminal Appeals affirmed, by an unpublished memorandum, but with a dissenting opinion. J.J.D. v. State, 778 So.2d 239 (Ala.Crim.App.1999). We granted J.J.D.'s petition for certiorari review. Because the circuit court erred in revoking J.J.D.'s probation, we reverse and remand.

I.

In January 1999, Deputy James Mayo stopped J.J.D., who was on probation at the time, for a driving violation. J.J.D. had two passengers in the automobile at the time. Mayo searched J.J.D. and both passengers. On the female passenger, Mayo found a cigarette box containing two rock-like substances, which he thought were crack cocaine. When Mayo arrested the female passenger, she told him that the male passenger had narcotics in his shoe. A search of the shoe revealed "a crack pipe with the packing that's normally used for crack pipes to be smoked for crack-cocaine purposes." (R. at 5.) Mayo arrested the male passenger. Mayo then searched the rest of the car, and found a leafy substance he believed was marijuana. Mayo arrested J.J.D. for possession of marijuana.

J.J.D.'s probation officer filed a report to revoke his probation; the report stated that J.J.D. had violated his probation by being arrested for two counts of receiving stolen property,¹ by being arrested for possession of marijuana, and by "associat[ing] with a person who has a criminal record." The evidence presented at trial established (1) that the State nol-prossed the charges of receiving stolen property because the complaining witness failed to appear in court; (2) that J.J.D. was found not guilty of possession of marijuana, because the leafy substance seized from his car was not marijuana; and (3) that the male passenger in J.J.D.'s car had a criminal record and was on probation at the time of the arrests. The circuit court followed the probation officer's recommendation and revoked J.J.D.'s probation.

J.J.D. appealed, arguing that the circuit court erred in revoking his probation because, he argued, the State failed to present sufficient evidence for a finding that he had violated the terms of his probation. Specifically, J.J.D. argued that the State needed to present evidence indicating that he knew that the male passenger had a criminal record. The Court of Criminal Appeals affirmed the circuit court's judgment, by an unpublished memorandum, holding that the State did not need to present direct evidence indicating that J.J.D. had knowledge of the male passenger's criminal record. The Court of Criminal Appeals concluded that because the State presented evidence indicating that the male passenger had a criminal record and because the police had removed controlled substances and drug paraphernalia from the passengers, "the trial court could clearly infer that [J.J.D.] was aware that he was associating with `persons or places of disreputable or harmful character' and `associating with a person who has a criminal record.'"

II.

J.J.D. argues that the Court of Criminal Appeals erred in concluding that the circuit court properly revoked his probation on the ground of "associating with a person who has a criminal record."² Specifically, J.J.D. argues that the State failed to present sufficient evidence to support a finding that he was aware of the male passenger's criminal record. The Court of Criminal Appeals has stated, in explaining the evidentiary standard applicable in a probation-revocation case:

"`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 53 (1967) (citation omitted)). Under that standard, the trial 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, 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).

The State, relying on Lindsey v. State, 768 So.2d 408 (Ala.Crim.App.1998), argues that it should not be required to establish that a defendant has "knowingly" violated a condition of his probation. In Lindsey, the Court of Criminal Appeals held that evidence that marijuana was discovered in a closet in the probationer's residence was sufficient, in a probation-revocation proceeding, to support a finding that the probationer had constructively possessed the marijuana, even though he did not have exclusive control over the closet. The State's reliance on Lindsey, however, is misplaced. The Court of Criminal Appeals did not hold in Lindsey that a defendant's unknowing violation of probation conditions would support a revocation of the defendant's probation. Rather, the Court of Criminal Appeals held that because the burden of proof is significantly lower in a probation-revocation proceeding than in a criminal trial, the State's circumstantial evidence was sufficient to support a finding that the defendant had had knowledge of the marijuana in the closet. See id.; Sims v. State, 733 So.2d 926 (Ala.Crim. App.1998)

(holding that knowledge of the presence of a controlled substance is an essential element of constructive possession of that substance). While the discovery of marijuana in a location under the nonexclusive control of a defendant is sufficient to support the revocation of a defendant's probation, the discovery of a defendant in the company of someone with a criminal record is insufficient by itself to support a finding that the defendant violated the terms of his probation. The Court of Appeals of Oregon explained, while interpreting a virtually identical probation condition:

"While this condition on its face is a rather sweeping prohibition, we think it must be read having in mind the practicalities of the probation status. The purpose of probation is to assist the probationee to become a law-abiding citizen. It can be presumed that if he associates with known criminals, his chances of rehabilitation are lessened. If then, under a condition such as this one, a revocation hearing became necessary we must assume that the court would revoke for violation only if the probationee knowingly associated with persons convicted of crimes which would be likely to adversely affect his rehabilitation. To do otherwise would be an abuse of the court's discretion."

State v. Allen, 12 Or.App. 455, 457-58, 506 P.2d 528, 529 (1973); accord Phelps v. State, 638 S.W.2d 23, 24 (Tex.App.1982) ("[E]ven if an associate is shown to be disreputable, the State must also show that the probationer knew of the disreputable and harmful character of such a person.").

The Court of Criminal Appeals correctly noted that the State was not required to present direct evidence indicating that J.J.D. knew of the male passenger's criminal record. Cf. McLaney v. City of Montgomery, 570 So.2d 881, 882 (Ala.Crim.App.1990) (holding that circumstantial evidence can be...