McCoo v. State

• Decision Date: 29 April 2005
• Docket Number: 1031852.
• Citation: 921 So.2d 450
• Parties: Ex parte State of Alabama. (In re Carl Ray McCOO v. STATE of Alabama).
• Court: Alabama Supreme Court

921 So.2d 450

Ex parte State of Alabama (In re Carl Ray McCOO v. STATE of Alabama).

1031852.

Supreme Court of Alabama.

April 29, 2005.

COPYRIGHT MATERIAL OMITTED

Troy King, atty. gen., and Michael B. Billingsley, Stephanie N. Morman, and Corey L. Maze, asst. attys. gen., for petitioner.

Marion Chartoff, Montgomery, for respondent.

HARWOOD, Justice.

On December 16, 2004, this Court granted the State's petition for a writ of certiorari to review the opinion of the Court of Criminal Appeals in McCoo v. State, 921 So.2d 446 (Ala.Crim.App.2004). In McCoo, the Court of Criminal Appeals remanded the case for the trial court to enter a probation-revocation order that complied with Wyatt v. State, 608 So.2d 762 (Ala. 1992). We granted the State's petition with respect to three issues: (1) whether and under what circumstances this Court should consider petitions for the writ of certiorari seeking review of an order of remand by the Court of Criminal Appeals, as in Bishop v. State, 608 So.2d 345 (Ala. 1992); (2) whether this Court should overrule the requirement in Wyatt "`that the trial court must issue a written order stating the reasons for the revocation and the evidence it relied upon, even where the transcript of the proceeding, coupled with the order, indicates the evidence relied upon by the trial court and the trial court's reason for the revocation,'" McCoo, 921 So.2d at 449-50 (quoting Wyatt, 608 So.2d at 763); and (3) whether an appellate court of this State should review an allegation of a due-process violation when redressing the violation cannot afford the aggrieved party any relief. On March 1, 2005, the Court heard oral argument on these issues.

In the case before us, Carl Ray McCoo entered a plea of guilty on August 22, 2001, to the charge of conspiracy to commit robbery in the first degree. He was sentenced to 10 years' imprisonment, but that sentence was "split,"¹ and McCoo was ordered to serve 3 years' imprisonment followed by 3 years' probation. On May 22, 2003, McCoo was brought before the trial court; the remainder of his period of incarceration was suspended; and he was placed on probation until May 22, 2006. On December 9, 2003, McCoo again appeared before the trial court in a delinquency hearing arising from his arrest on a charge of robbery in the first degree, a violation of Ala.Code 1975, § 13A-8-41. He was advised by the court that he was charged with having violated the conditions of his probation by committing that offense. McCoo was adjudged delinquent, an attorney appointed to represent him, and a probation-revocation hearing scheduled. On December 17, 2003, the probation-revocation hearing was conducted, and on that same day the trial court revoked McCoo's probation and reinstated his 10-year sentence.

McCoo appealed his probation revocation to the Court of Criminal Appeals, arguing that the trial court's revocation of his probation was erroneous because, he said, it was based entirely on hearsay evidence; McCoo also argued that he was entitled to a written order adequately explaining the evidence the trial court relied on in revoking his probation and the reasons his probation was revoked. The Court of Criminal Appeals summarized the facts adduced at the probation-revocation hearing as follows:

"Detective W.D. Favor with the Montgomery Police Department testified at the hearing. Det. Favor stated that he responded to a robbery-in-progress call at the Pace Car gasoline station on Troy Highway in Montgomery on November 6, 2003. According to Det. Favor, when he arrived at the scene, he spoke with two witnesses and the clerk of the store, and he determined that two black males had entered the Pace Car, had pointed a gun at the clerk, had removed the cash drawer, and had fled. The clerk testified that one of the men had `white paste all over his face, a red jacket and [was] armed with a dark handgun.' Det. Favor related that the witnesses informed him that the two robbers, along with two other men, left the scene in a blue Cadillac automobile. The Cadillac was later stopped by other police units, and McCoo and his accomplice jumped from the car and took off running. When McCoo was apprehended he was found to have Noxzema brand cold cream on his face and an open can of Noxzema was found in the backseat of the Cadillac. The cash box from the Pace Car was also found in the car. The delinquency report, prepared by McCoo's probation officer, Ruth Peters, revealed that McCoo was identified as being the robber who had a gun and who pointed it at the clerk; it also revealed that a gun was found near where McCoo was seen running when police attempted to apprehend him. McCoo did not object to the testimony, and he presented no evidence in his own behalf. The trial court informed McCoo that his probation was being revoked and informed McCoo that he had the right to appeal. Following the hearing, the trial court entered an order on the docket stating:

"`Defendant appeared before the Court for revocation hearing with [his] attorney Jim Porter. Defendant denies [the] charged violation of probation that he has a new offense for Robbery First Degree. Based on sworn testimony of Detective W.D. Favor of [the] Montgomery Police Department which substantiates details of [the] offense contained in the delinquency report, the Court finds [that] the Defendant has violated conditions of [his] probation by failing to refrain from illegal activity.'"

921 So.2d at 448.

The Court of Criminal Appeals first determined that McCoo had failed to present to the trial court his argument that that court had improperly considered hearsay evidence at the probation-revocation hearing and therefore concluded that that argument had not been preserved for appellate review.

With respect to McCoo's argument concerning the adequacy of the revocation order, the Court of Criminal Appeals stated:

"As for McCoo's challenge to the adequacy of the revocation order, this issue may be raised on appeal, even if not first presented to the trial court. McCoo cites Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Wyatt v. State, 608 So.2d 762 (Ala.1992); and other authority in support of his argument that the trial court's order was inadequate.

"`"In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation." Trice v. State, 707 So.2d 294, 295 (Ala.Crim. App.1997). "These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct." T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).'

"Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). Rule 27.6(d)(1), Ala. R.Crim. P., states:

"`The judge must be reasonably satisfied from the evidence that a violation of the conditions or regulations of probation or the instructions occurred. Each party shall have the right to present evidence and the right to confront and to cross-examine adverse witnesses who appear and testify in person. The court may receive any reliable, relevant evidence not legally privileged, including hearsay.'

"Rule 27.6(f) states: `The judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.'

"In James v. State, 729 So.2d 364 (Ala.Crim.App.1998), the trial court revoked the appellant's probation because he had violated four conditions of his probation. The trial court stated in its revocation order that it considered the "`testimony and arguments of counsel [and] adjudged the defendant guilty"' of being in violation of the terms of his probation. James, 729 So.2d at 365. In remanding the case, we wrote:

"`In order for the due process requirements set forth in Armstrong [v. State, 294 Ala. 100, 312 So.2d 620 (1975),] and Rule 27.6(f), Ala. R.Crim. P., to be met, the trial court's order revoking probation must be in writing and must recite the reasons for the revocation and the evidence relied upon in ordering the revocation. Wyatt [v. State], 608 So.2d [762] at 763 [(Ala.1992)]. Here, although the trial court's written order adequately recites the reasons for revoking the appellant's probation, the order fails to adequately specify the evidence it relied upon. We have consistently found general recitations by the trial court to its consideration of the "testimony," "sworn testimony," or "relevant and competent evidence" presented at the revocation hearing to be insufficient for purposes of satisfying the "statement of the evidence relied upon" requirement of Armstrong. See McCloud v. State, (Ala.Cr.App.1998); Thornton v. State, 728 So.2d 1162 (Ala.Cr.App.1998); Scarbrough v. State, 709 So.2d 82 (Ala.Cr.App.1997); and Hairgrove v. State, 668 So.2d 887 (Ala.Cr.App. 1995). Thus, the trial court failed to adequately specify the evidence relied upon in revoking the appellant's probation by stating only that it had "heard testimony and arguments of counsel."

"`Although the transcript of the probation revocation hearing presents evidence that supports the court's order revoking the appellant's probation, the Alabama Supreme Court held in Wyatt that the trial court must issue a written order stating the reasons for the revocation and the evidence it relied upon, even where "the transcript of the proceeding, coupled with the order, indicates the evidence relied upon by the trial court and the trial court's reason for the revocation." [Wyatt,] 608 So.2d at 763.'

"James, 729 So.2d at 365-66.

"In this case, ...