Johnson v. State

• Decision Date: 10 November 2014
• Docket Number: No. 48A04–1402–CR–82.,48A04–1402–CR–82.
• Citation: 23 N.E.3d 860 (Table)
• Parties: Darnell JOHNSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

23 N.E.3d 860 (Table)

Darnell JOHNSON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 48A04–1402–CR–82.

Court of Appeals of Indiana.

Nov. 10, 2014.

Clifford M. Davenport, Davenport Law Offices, Pendleton, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Darnell Johnson appeals the revocation of his probation and the execution of his previously suspended sentence.Johnson presents three issue for our review:

1.Did the trial court abuse its discretion when it permitted hearsay testimony during the probation revocation hearing?

2.Is there sufficient evidence to sustain the trial court's determination that Johnson violated his probation?

3.Did the trial court abuse its discretion when it revoked Johnson's probation and ordered Johnson to serve the balance of his previously suspended sentence?

We affirm.

On October 8, 2010, the State charged Johnson under CauseNo. 48C01–1010–FC–366(FC–366) with Count I, criminal confinement as a class C felony, and Count II, battery as a class A misdemeanor.On December 2, 2010, the State charged Johnson under CauseNo. 48C01–1012–FC–939(FC–939) with battery resulting in serious bodily injury as a class C felony.On July 25, 2011, Johnson entered into a plea agreement with the State that covered FC–366 and FC–939, as well as separate misdemeanor case.The terms of the plea agreement provided that Johnson would plead guilty to all charges in FC–366 and FC–939 and the misdemeanor case would be dismissed.The plea agreement further provided that any executed sentence under each FC–366 and FC–939 would be capped at four years.On August 22, 2011, the trial court sentenced Johnson in FC–939 to four years executed.In FC–366, the trial court sentenced Johnson to six years with two years suspended on Count I, and to one year executed on Count II.The court ordered the sentences in FC–366 to be served concurrently with each other, but consecutively to the sentence imposed in FC–939.

In February 2013, the cause was reassigned to the Honorable Judge Thomas Newman and given a new cause number—CauseNo. 48C03–1010–FC–550(FC–550).Johnson was released from the Indiana Department of Correction on September 11, 2013.On October 1, 2013, the State filed a notice of probation violation and subsequently filed an amendment thereto on October 14, 2013.A second amended notice of probation violation was filed on November 1, 2013.The alleged probation violation followed a urine drug screen that tested positive for the presence of cocaine and marijuana.A probation violation hearing was held on November 18, 2013, during which Johnson admitted to violating a condition of his probation, and the trial court ordered Johnson to submit to an evaluation.Following a hearing on December 2, 2013, Johnson was released back to probation and ordered to complete certain programs that were recommended upon his evaluation.

On January 2, 2014, the State filed a second notice of probation violation alleging that Johnson had committed the crime of class A misdemeanor battery.The trial court held a probation revocation hearing on January 27, 2014.

During the revocation hearing, Kimberly Smith testified that she was Johnson's girlfriend at the time and that on or about October 27, 2013, while at her residence, Johnson pushed her by her shoulders and grabbed her by the neck.Holly Brewer, Smith's friend, intervened and attempted to pull Johnson off of Smith.Johnson and Brewer started to scuffle.Smith then gathered her stuff and went outside, asking Brewer to follow her.Brewer made “some racist remarks” and the next thing Smith saw was Brewer's feet “flying up in the air.”Transcriptat 72.Johnson fled the scene.

Officer Michael Williams with the Anderson Police Department also testified at the probation revocation hearing.Officer Williams explained that while on duty, he was dispatched to Smith's residence in response to a report of a battery and that when he arrived, Brewer was standing out front complaining of pain to her elbow and her face.Over a defense hearsay objection, Officer Williams testified that Brewer told him that she tried to help Smith after Johnson grabbed her and that when she yelled that she was going to call the police, Johnson struck her a couple of times in the face, knocking her to the ground.Brewer continued, telling Officer Williams that she fled outside and when she turned to call the police, Johnson struck her in the face again, knocking her into a trash can.Officer Williams further testified that Brewer was visibly shaken and that she had red marks on her face.

Another witness, Karla Scruggs, Smith's neighbor, testified at the probation revocation hearing.Scruggs admitted that she did not see what transpired inside Smith's home between Johnson and Brewer, but testified as to what she saw happen outside the residence.According to Scruggs, Johnson was standing on the front porch when Brewer made a racist remark to Johnson and spit on Johnson.Scruggs said that after Brewer took a swing at Johnson, Johnson hit Brewer, causing her to fall back over a stroller.In his own defense, Johnson denied striking Brewer with a closed fist.

Based upon the testimony presented, the trial court found by a preponderance of the evidence that Johnson had violated a condition of his probation by committing battery.As a result, the trial court revoked Johnson's probation and ordered that he be returned to the Department of Correction to serve the balance of his suspended sentence.Johnson now appeals.

1.

Johnson argues that the trial court abused its discretion in admitting hearsay evidence during his probation revocation hearing.Johnson's argument is based on the fact that Brewer, the victim of the alleged battery that served as the basis for the notice of probation violation, did not testify at the probation revocation hearing.The events giving rise to the alleged battery were related to the court by Officer Williams, who testified as to what Brewer told him upon his arrival on the scene on the night of the incident.Although Officer Williams's testimony concerning what Brewer told him may have constituted hearsay, this does not necessarily preclude the admission of such evidence during a probation revocation proceeding.

The trial court's decision to admit or exclude evidence in a probation revocation hearing is reviewed on appeal for an abuse of discretion.Figures v. State,920 N.E.2d 267(Ind.Ct.App.2010).An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.Id.

The United States Supreme Court has held that the Due Process Clause applies to probation revocation hearings.Gagnon v. Scarpelli,411 U.S. 778(1973)(citingMorrissey v. Brewer,408 U.S. 471(1972) ).The due process rights of a probationer include: “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body....”Cox v. State,706 N.E .2d 547, 549(Ind.1999).

Confrontation rights in the context of probation revocation are not as extensive as they are in criminal trials.Reyes v. State,868 N.E.2d 438(Ind.2007).The Indiana Rules of Evidence, including those governing hearsay, do not apply in such proceedings.SeeInd. Evidence Rule 101(c)(2).Additionally, the scope of the right to confrontation as defined in Crawford v. Washington,541 U.S. 36(2004), does not apply in such proceedings.SeeReyes v. State,868 N.E.2d 438.This, however, “does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing.”Reyes v. State,868 N.E.2d at 440.

Our Supreme Court has held that the substantial trustworthiness test is the most effective means for determining whether hearsay evidence should be admitted at a probation revocation hearing.Reyes v. State,868 N.E.2d 438.Under this test, “ ‘judges may consider any relevant evidence bearing some substantial indicia of reliability ... includ[ing] reliable hearsay.’ “Reyes v. State,868 N.E.2d at 441(quotingCox v. State,706 N.E.2d 547, 551(Ind.1999) ).In other words, the substantial trustworthiness test requires that the trial court evaluate the reliability of the hearsay evidence.Reyes v. State,868 N.E.2d 438.Ideally, the trial court should explain on the record why the hearsay is reliable and why that reliability is substantial enough to supply good cause for not producing live witnesses.Id.Our Supreme Court has held that a finding of substantial trustworthiness is the equivalent of a good-cause finding.Id.

While it is preferable for the trial court to explain on the record why the hearsay is reliable and why that reliability is substantial enough to supply good cause for not producing live witnesses, the absence of such explanation from the trial court in this case does not necessitate reversal.To be sure, we find that in the present case, the hearsay testimony presented by Officer Williams met the substantial trustworthiness test.Officer Williams responded to a report of a battery and noted that the Brewer was visibly shaken, appeared to have been in an altercation, and had red marks on her face.Brewer's physical condition was directly observed by Officer Williams and corroborated her statement to Officer Williams that she had been struck in the face.Furthermore, the admission of the hearsay testimony was harmless as it was cumulative of testimony from two other witnesses who confirmed there was a physical altercation between Johnson and Brewer, with one of the witnesses specifically testifying that she saw Johnson strike Brewer.The trial court did not abuse its discretion in admitting Officer Williams's testimony.

2.

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