State v. Booker, 083019 TNCRIM, E2018-00777-CCA-R3-CD

Docket Nº:E2018-00777-CCA-R3-CD
Opinion Judge:ROBERT W. WEDEMEYER, JUDGE
Party Name:STATE OF TENNESSEE v. DOMINIQUE ALEXANDER BOOKER
Attorney:Cameron D. Bell, Knoxville, Tennessee, for the appellant Dominique Alexander Booker. Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for t...
Judge Panel:Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Thomas T. Woodall, and Robert H. Montgomery, Jr., JJ., joined.
Case Date:August 30, 2019
Court:Court of Appeals of Tennessee, Court of Criminal Appeals of Tennessee

STATE OF TENNESSEE

v.

DOMINIQUE ALEXANDER BOOKER

No. E2018-00777-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

August 30, 2019

Assigned on Briefs April 23, 2019

Appeal from the Criminal Court for Knox County No. 108641, 109764 G. Scott Green, Judge

In 2017, the Defendant, Dominque Alexander Booker, pleaded guilty to three counts in two separate cases, and the trial court sentenced him to a probationary sentence. In 2018, the Defendant's probation officer filed a probation violation warrant alleging that the Defendant had violated his probation by committing assault and vandalism and by not notifying his probation officer of the new offenses. After an evidentiary hearing, the trial court revoked the Defendant's probation sentences for both cases. On appeal, the Defendant contends that the trial court erred when it admitted into evidence the police officer's recount of the victim's statements about the assault as an excited utterance over the Defendant's hearsay objection. After review, we affirm the trial court's judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

Cameron D. Bell, Knoxville, Tennessee, for the appellant Dominique Alexander Booker.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Thomas T. Woodall, and Robert H. Montgomery, Jr., JJ., joined.

OPINION

ROBERT W. WEDEMEYER, JUDGE

I. Facts

This case arises from new arrests while the Defendant was serving a probation sentence. On August 3, 2016, a Knox County grand jury indicted the Defendant for two counts of attempted first-degree murder and two counts of employing a firearm during the commission of a dangerous felony. On January 27, 2017, the Defendant pleaded guilty to two counts of facilitation to commit attempted second degree murder. The trial court entered the agreed concurrent sentence of four years, at 30%, to be served on state probation. The judgment of conviction states that the Defendant's probation was conditioned upon him not thereafter violating any laws and the Defendant's complying with the rules of probation.

In July 2017, the Defendant's probation officer filed a probation violation warrant stating that the Defendant had failed two drug screens for marijuana. The trial court therefore ordered enhanced supervision, in part, because the Defendant had a history of drug use. It also ordered that the Defendant complete a drug and alcohol rehabilitation program while in custody as a condition of being placed on enhanced probation.

On August 25, 2017, the Defendant pleaded guilty to intent to sell 0.5 grams or more of cocaine, and he received a ten-year probationary sentence, to run concurrently with his four-year probation sentence. On August 29, 2017, the trial court found the Defendant guilty of violating a law of the State of Tennessee based upon the cocaine conviction, and it ordered that the Defendant be placed on enhanced probation for three years and 143 days, to expire January 15, 2021.

On March 8, 2018, the trial court found that the Defendant had failed to comply with the conditions of his probation by engaging in criminal conduct, i.e. committing an assault and vandalism on March 6, 2018. The affidavit further alleged that the Defendant failed to contact his probation officer and report his arrest.

The trial court held an evidentiary hearing, during which the parties presented the following evidence: The State informed the trial court that it did not anticipate that the victim would appear in court but that it intended to present proof through the police officer who responded to the call about this incident. The State alleged that the Defendant had violated his probation by both committing criminal conduct and not reporting his arrest for committing criminal conduct. The Defendant's attorney objected to the officer's testimony arguing that the officer's testimony constituted hearsay, which violated even the lower hearsay standard of a probation revocation hearing.

Officer Matthew Janish, with the Knoxville Police Department, testified that he responded to a call on March 6, 2018, that involved a domestic assault between the victim and her boyfriend, the Defendant. When he arrived, he found the victim "extremely upset . . . crying . . . and a little fearful." The officer observed a large bruise on the victim's forehead that looked to be turning purple and blue. Officer Janish took two pictures of the bruise, both of which the trial court admitted into evidence.

The State asked about the conversation that occurred between the victim and the officer, and the Defendant objected on hearsay grounds. The trial court asked the officer if the conversation occurred "right after" the incident with the Defendant, and the officer said that it had. The trial court ruled that the victim's statements were admissible pursuant to the excited utterance exception to the hearsay rule.

Officer Janish continued that the victim told him that the Defendant had come to her home the night before this incident and also the morning before the officer responded. The two argued over the Defendant's taking the victim's vehicle without permission, and the Defendant "headbutted" her in the forehead. The victim also showed the officer her shattered iPhone. She said that, after the Defendant "headbutted" her, he grabbed her phone, took it outside, and threw it down to the parking lot. The victim said that, when she went to retrieve the phone, the Defendant shoved her to the ground and kicked her in the leg.

During cross-examination, Officer Janish testified that the victim told him that the incident occurred "first thing in the morning." Officer Janish described the victim as "extremely upset and fearful that [the Defendant] was going to return." The officer was uncertain what time the victim called 911. The victim's young child was present in the home when the officer arrived.

Jacob White, an officer with the Tennessee Department of Correction, Enhanced Probation, testified that he supervised the Defendant. He testified that, upon entering supervision, the rules are explained clearly and carefully to each defendant. The Defendant began supervision through enhanced probation on September 26, 2017. The second condition of the Defendant's probation sentence stated: "I will report all arrests, including traffic violations, immediately regardless of the outcome to my probation officer." Mr. White testified that the Defendant never reported any arrests to him,...

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