Mccain v. State Of Ala.
| Decision Date | 28 August 2009 |
| Docket Number | CR-08-1161. |
| Citation | 33 So.3d 642 |
| Parties | Jamal Adarius McCAINv.STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
[33 So.3d 642 643]
Elizabeth Kammer, Birmingham, for appellant.
Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
On September 21, 2005, the appellant, Jamal Adarius McCain, entered a guilty plea to first-degree robbery. The trial court sentenced him to serve a term of
[33 So.3d 642 644]
twenty years in prison, but split the sentence and ordered him to serve three years followed by three years on supervised probation. Revocation proceedings were initiated in June 2008. After conducting a revocation hearing, the circuit court revoked McCain's probation. This appeal followed.
Leslie Koepp testified that she was a probation parole supervisor; that June 11, 2008, was McCain's time to report for his monthly visit with his probation officer and pay his supervision fees; and that, on that date, the clerk at the fee unit notified her that a possible counterfeit one hundred dollar bill had been presented to pay McCain's probation fee. She also testified that all bills presented for payment are checked with counterfeit detection; that, if a bill turns black, it is counterfeit; that the one hundred dollar bill turned black; that she confiscated the one hundred dollar bill and told McCain he could go back to see his probation officer, but to have a seat in the lobby when he finished; that she told McCain he could not leave the building until after he had talked to her or Officer Langer; that she left the fee unit and went to call the United States Secret Service; and that, by the time Agent Stephen Lewis of the Secret Service arrived, McCain had left. Koepp testified that she telephoned McCain's family members on two occasions to get McCain to come back to the probation office; that, between fifteen and twenty minutes later, McCain returned to the office; and that Lewis interviewed McCain. She further testified that she questioned McCain about his drug use; that McCain told her he had been smoking marijuana while he was in the custody of the Alabama Department of Corrections (“ADOC”); that McCain told her he had last smoked marijuana on June 10, 2008; and that McCain told her he would test positive if he was tested for drug use.
Stephen Lewis testified that, on June 11, 2008, Koepp telephoned him and told him she had a suspected counterfeit bill and wanted him to verify it; that he went to the probation office and met with Koepp; and that he looked at the bill and determined that it was counterfeit. He also testified that he questioned McCain after he returned to the probation office; that, originally, McCain denied any knowledge about the counterfeit bill; that he continued to question McCain; that, eventually, McCain told him he had gotten the bill from a man he had passed while walking to a gas station; and that McCain told him that the man wanted to change the bill for some money, that they exchanged bills, and that that was it. Lewis further testified that he knew McCain was not telling the truth; that, after he continued to question McCain, his story began to change; that, between one and one and one-half hours later, McCain told him he had gotten the bill the night before from a man who had cut his grass; and that McCain told him that he and his girlfriend, Tameka Green, looked at the bill, that the bill looked funny, and that they thought it could be counterfeit. Finally, Lewis testified that he also talked to Green; that Green's story basically matched McCain's; and that Green said that she and McCain both thought the bill looked funny.
Tameka Green testified that McCain was her boyfriend; that, on the evening of June 10, 2008, someone knocked on the door of their residence, and McCain went to the door; that she later went outside; that McCain and a man who had cut their grass before were outside; that the man asked McCain to change a one hundred dollar bill for him; that the man had not cut their grass that night; that McCain asked her to get some money off of the dresser, and she did; that McCain exchanged a ten dollar bill and some twenty dollar bills for the one hundred dollar bill;
[33 So.3d 642 645]
and that she went back into the house. She also testified that McCain looked at the bill and held it up; that he told her the bill looked funny; that she said she thought the bill was real and that it looked real; that McCain agreed that it looked real; and that they left it at that. Green further testified that, on June 11, 2008, she talked to Lewis; that he asked her about the bill; and that she told Lewis that McCain had looked at the bill, that the bill looked to be real, and that she thought the bill was real.
Taneisha McCain testified that she was McCain's sister; that, on June 11, 2008, she took McCain to the probation office; that she waited outside; that it took longer than usual; that McCain came outside, and they left; that, at some point, McCain said he was hungry, so she said they would go get something to eat; that she telephoned her mother, and they stopped by her mother's place of employment to get some money; that, at some point, her son, who was at her mother's house, telephoned her; that her son told her that McCain's probation officer had just telephoned and was looking for him; that she told him McCain would be home in a minute; that her son telephoned her again and said that the probation officer said that, if McCain did not get back to the probation office within the next twenty minutes, they were going to issue a warrant for his arrest and send the sheriff out to pick him up; that they turned around, and she took McCain back to the probation office; that she asked McCain why they were bringing him back, and he said he did not know why; that she told him not to lie to her; and that McCain again told her that he did not know why. She also testified that she sat in the vehicle waiting for McCain; that, at some point, a marshal or someone else came outside and told her she needed to claim McCain's things; that she went and signed for his things; and that she did not know what McCain was “going in” for because no one would tell her. (R. 27.)
McCain testified that a man who told him his name was Edison had cut his grass on the Sunday before the incident in question; that Edison had cut his grass a couple of times; that he had not had any problems with Edison before that; that, between 8:00 p.m. and 9:00 p.m. on June 10, 2008, Edison came back to his house with a one hundred dollar bill and asked him if he could change it; that he said he could; that he went and got the money from Green; that he came back and exchanged the money; that he looked at the bill and thought it looked funny; that he asked Green if she believed the money was real; that Green looked at the money and said she believed it was real; and that he said, “[O]kay,” and put it away. (R. 28.) He also testified that, on June 11, 2008, he went to the probation office; that he went to the desk to pay his $30 probation fee; that the woman “hit” the bill with the marker, held it up, “hit” it again, and said, “I don't think this is real, son”; that he said, “[W]hat?” but he “kind of had the feeling”; that the woman told him the bill was not real and that she was going to have to call a probation officer to have it verified; that the woman called Koepp; and that he went and sat back down. (R. 29.) McCain further testified that Koepp came up and told him not to leave and that he needed to stay; that he left the probation office to get some money from his mother in case the bill was not real; that his mother worked at AmSouth Bank; that his sister took him to see his mother; and that he thought he needed to get money to pay his fees because he did not want to owe any money.
McCain also testified that he had not ever been tested for marijuana; that he told his probation officer that, if tested, he would test positive for marijuana; that he
[33 So.3d 642 646]
did so because he did not want to make the situation worse; that he was smoking marijuana a couple of times a week at that time; that he knew that smoking marijuana was a violation of his probation; and that he regretted smoking marijuana.
McCain argues that the circuit court abused its discretion when it revoked his probation.
Initially, McCain contends that the circuit court erroneously found that he had violated his probation by using a counterfeit bill to pay his probation fee because the evidence did not clearly indicate that he had personal knowledge that the one hundred dollar bill was counterfeit.
Ewing v. State, 826 So.2d 199, 203 (Ala.Crim.App.2001).
At the conclusion of the revocation hearing, the circuit court stated:
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