State v. Breaux
| Decision Date | 07 May 2002 |
| Docket Number | M2001-01993-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. JARED ANTHONY BREAUXIN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs |
| Court | Tennessee Court of Criminal Appeals |
The defendant, who had three convictions for DUI, was incarcerated after the suspended portion of his most recent DUI sentence had been revoked because of a fourth arrest for DUI and his failure to report the new arrest to his probation officer. The following month, the defendant was released on a four-day furlough to attend his grandmother's funeral in Louisiana, and, apparently because of the late hour when the release occurred, the conditions of his release were not explained. Two hours later, the defendant was seen by a jail deputy at a nearby Hooter's Restaurant, as he drank a beer with his brothers, whom he had met there for the journey to Louisiana. Following a hearing, he was held in contempt of court for consuming an alcoholic beverage while on furlough and sentenced to ten days confinement to be served consecutively to the sentence for which he then was incarcerated. He timely appealed that ruling, arguing that since the conditions of the furlough had not been explained to him, the evidence was insufficient for the finding that he was in contempt of court. Upon our review, we affirm the trial court.
Ross E. Alderman, District Public Defender, and Hollis I. Moore, Jr., Assistant District Public Defender, for the appellant, Jared Anthony Breaux.
Paul G. Summers, Attorney General & Reporter; Christine M. Lapps, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and James D. Sledge, Assistant District Attorney General, for the appellee, State of Tennessee.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE OGLE, JJ., joined.
BACKGROUND
Following charges of possession of marijuana, fourth offense, and driving under the influence ("DUI"), third offense, the defendant pled guilty on May 11, 2000, to DUI, first offense, a Class A misdemeanor. He was then sentenced as follows: eleven months and twenty-nine days as a Range I, standard offender, with 100% of the first seventy days to be served in the county jail and the balance on probation; payment of a $350 fine and restitution to the victim; revocation of his driver's license for one year; completion of alcohol treatment; and submission to random drug screens. Apparently, the defendant served the required portion of the sentence in jail and was then placed on probation, because on May 7, 2001, his probation officer filed an affidavit for violation of probation, alleging that he failed to report he was arrested on April 20, 2001, for DUI and driving on a revoked license and failed, as well, to complete the court-ordered alcohol treatment for his 2000 DUI conviction. Finding that the defendant had violated his probation, the trial court then sentenced him to 180 days to be served day-for-day at 100% at which time his probation would terminate. However, the court ordered further that the defendant could be released after serving ninety days and completing the New Avenues alcohol and drug rehabilitation program.
On Friday, June 15, 2001, while the defendant was incarcerated, the trial court granted him a furlough so that he could attend his grandmother's funeral in Louisiana. Although a formal furlough order was not issued that Friday evening when he was released, the court notified a court clerk, and the proper documentation was faxed to the Davidson County Correctional Work Center ("CWC") where the defendant was confined. Within two hours of the defendant's release, the officer who had released him saw the defendant drinking beer at a nearby Hooter's Restaurant. The State filed a motion for an order to show cause as to why the defendant should not be held in contempt for failing to obey the terms of the funeral furlough, and the trial court then entered an order requiring that the defendant appear on July 12, 2001, to show cause as to why he should not be held in contempt of court. At the conclusion of the hearing on July 18, 2001, the court found the defendant in contempt of court and sentenced him to ten days, to be served day-for-day at 100% and consecutively to his previous 180-day sentence. The defendant then filed a timely notice of appeal.
CONTEMPT HEARING
At the contempt hearing, Deputy Sheriff Albert Roberts of the Davidson County Sheriff's Department testified that he was working the 3:00 p.m. to 11:00 p.m. shift on June 15, 2001, at the CWC when he received a fax concerning the defendant's funeral furlough. Roberts told the defendant where to sign the furlough documents and informed him of the time that he was to return to the CWC. Roberts said that the defendant knew he was being furloughed to attend an out-of-state funeral at the time he signed the paperwork. Although Roberts did not read the document the defendant signed, he did not believe the document said anything about drinking alcohol while on the funeral furlough. The defendant was released from the CWC at about 10:00 p.m., according to Roberts.
Deputy Roberts finished work at 11:30 p.m. and went to pick up his girlfriend, who worked at a nearby Hooter's Restaurant. He arrived at Hooter's at about 11:50 p.m. and saw the defendant walking back from the restroom. The defendant's personal property had been returned to him when he was released, and the defendant left the CWC wearing a Titans' jersey, shorts, and a necklace. Roberts recognized the defendant from the clothes he was wearing, which were the same as when he was released, as well as his facial features, goatee, and dark hair. Roberts made eye contact with the defendant, who suddenly appeared "real agitated" although Roberts did not approach him. He saw that the defendant was sitting at the front of the restaurant with two or three other men, and each had one empty beer bottle and another full, or partially full, beer bottle. Roberts saw the defendant, in particular, drinking out of a Budweiser beer bottle. He called another officer at the CWC and told him to note on the defendant's furlough sheet that the defendant had been drinking beer and said that he would write a report the next day concerning the defendant's activities. Roberts saw the defendant and his group leave the restaurant but could not see what type of vehicle they left in.
According to procedure, a case manager is supposed to inform an inmate, about to be released on furlough, of the applicable rules. Roberts said that since the defendant was in the drug and alcohol program, he should have been told by the case manager not to drink during his furlough. He said he thought four or five case managers were on duty the day the defendant was furloughed, but none were there when the defendant was released that night, and Roberts did not witness the rules being explained to the defendant.
The defendant testified that he never talked to a case manager about his funeral furlough, although he did talk with Deputy Roberts, who told him only when to be back at the CWC. He said that no one gave him a copy of the funeral furlough that he signed. The defendant met his brothers at Hooter's because they were not sure how to get to the CWC. He said that he was released from the CWC at 10:30 p.m. and then walked approximately a mile to the restaurant. When he got to Hooter's, he ordered a meal while waiting for his brothers who, upon arrival, ordered a few beers. The defendant said he drank a draft beer in a cup, not out of a bottle. For drinking alcohol during his funeral furlough, he received fifteen days in the "hole."
On cross-examination, the defendant said that his brother Chad, who met him at Hooter's, had served a sentence at the CWC. He testified that at the time he was released on furlough, he had been accepted into New Avenues, a drug and alcohol treatment program, and was to start that program when he returned to the CWC after his furlough. He understood that he was granted the furlough to attend his grandmother's funeral and that he knew it was wrong to drink during his furlough.
Considering the evidence at the contempt hearing, the trial court made the following findings:
So the question is, whether [the defendant's] conduct has constituted a conduct that it's [sic] so improper that it constitutes the contempt of court? While I think it was extremely poor judgment and just an "f" in common sense, I don't think it was contempt of court to go to Hooter's. It sure would have been a lot better to go to the Hubble [sic] House or the Waffle House, which I think is next door. . . . But I don't think going to a restaurant that is a full service restaurant even though it provides alcohol beverages, I don't think that is contempt of court, but it sure was stupid.
I don't really buy the argument that: Well, we had to meet at Hooter's because they didn't know how to get to CWC. General Sledge, very, very effectively established that one of the two brothers in the car knew how to get to CWC. And you don't have to be the driver. A lot of times, I've been the passenger telling people turn left here and turn right there. So I really don't find that argument of the defendant to be persuasive at all.
Now the question is, whether or not it's contempt of court for a person who's in jail particularly for a DUI; particularly, for having been convicted of multiple DUI's; particularly, who's in jail and I think for a probation violation for a DUI; and who's either in New Avenues or is going to start New Avenues next Monday?
Whether that's contempt of court for going out and consuming alcoholic beverages openly and notoriously, not that it would have been any better had it been in the privacy of ones [sic] home. I find that it is...
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