State v. Michael

• Decision Date: 07 January 2005
• Docket Number: No. 39,439-KA.,39,439-KA.
• Citation: 891 So.2d 109
• Parties: STATE of Louisiana, Respondent, v. Larry Britton MICHAEL, Applicant.
• Court: Louisiana Supreme Court

891 So.2d 109

STATE of Louisiana, Respondent, v. Larry Britton MICHAEL, Applicant.

No. 39,439-KA.

Court of Appeal of Louisiana, Second Circuit.

January 7, 2005.

Culpepper & Carroll, PLLC by Bobby L. Culpepper, Jonesboro, for Applicant.

Robert W. Levy, District Attorney, Stephen K. Hearn, Jr., Laurie Whitten, Assistant District Attorneys, for Respondent.

Before STEWART, CARAWAY and DREW, JJ.

CARAWAY, J.

In this probation revocation proceeding, the defendant was found to have violated a condition of probation when he stabbed his wife. The evidence which established the crime was the out-of-court statement given by the defendant's spouse to an officer at a hospital following the stabbing incident and the testimony of the victim's daughter corroborating defendant's abusive conduct on the night of the stabbing. Nevertheless, the victim's daughter did not actually see the stabbing, and the defendant's wife refused to testify at the probation revocation hearing because of her marital privilege. Following the trial court's revocation of probation, defendant appeals, arguing that the probation violation was established through the impermissible hearsay statement of his wife. Finding the evidence sufficient to revoke probation, we affirm the ruling of the trial court.

Facts

After the defendant, Larry Britton Michael ("Michael"), spilled alcohol on his wife, Mattie Michael, and lit a cigarette in close proximity to her, setting her on fire, he was charged with attempted second degree murder in 2000. Michael pled guilty to aggravated battery in 2001, as the result of Mattie's refusal to give testimony against him through her invocation of the spousal privilege.¹ For the conviction Michael received a suspended sentence of seven years at hard labor and was placed on five years probation, at least three years of which were to be supervised. The court imposed specific conditions of probation prohibiting the violation of a domestic abuse order which prohibited Michael from contacting or visiting Mattie at her home or work as well as general prohibitions against further criminal conduct. Later, after the victim's continued requests, the trial court modified the "no contact" provisions of probation to permit contact between them.

On December 21, 2003, Michael was again arrested for the attempted second degree murder of Mattie who was found stabbed in her home. Prior to his trial on that charge, the state filed a petition seeking to revoke Michael's probation on the ground that he violated provision one of his probation which read as follows:

1. Refrain from violating any law, specifically any Federal, State, Parish or Municipal.

At the revocation hearing, police captain Darrel Newsom testified that on December 21, 2003, he was dispatched to 601 Woodland Street in Ruston in response to the report of a stabbing. Defense counsel objected to the hearsay nature of the response, which was overruled by the court. Counsel then made a general objection to all hearsay testimony.

Captain Newsom testified that the victim had been transported to the hospital at the time of his arrival at the scene. He found the residence in disarray, with dead fish and water all over the floor from a broken aquarium. He collected two kitchen knives and a bloody paper towel from the residence. Captain Newsom further stated he went to the hospital and interviewed Mattie, who told him that her husband had come to the house enraged, struck her in the head with an ashtray, and then stabbed her in the stomach.

Corporal Clint Williams testified that in response to the stabbing call, he found Mattie Michael in the bathroom with an apparent stab wound. Two children, later identified as Ashley Tyler, the fourteen-year-old daughter of Mattie, and Larry, the probationer's child, were present. Corporal Williams took a statement from Ashley in which she related that she and her half-brother were asleep, and she was awakened by her mother calling her. She then saw her mother bleeding. The officer asked her who she thought had done this to her mother, and she indicated that she thought it was Michael.

Corporal Williams also participated in the arrest of Michael at his sister's house in Grambling, Louisiana. He seized clothing which the probationer's sister had indicated that Michael was wearing when he came to her residence. The clothing appeared to be bloodstained, although there was no evidence identifying whose blood was on the clothing.

Ashley testified that she and her brother were asleep together when she got up to use the restroom and found her mother injured in the bathroom. Ashley testified that her mother told her that Michael had been there, had been in a rage, and had knocked over the fish tank. Mattie told Ashley to call the police and tell them to send an ambulance. Notably, she did not tell Ashley how she got stabbed. Ashley went across the street to call the police, because the phones were "unhooked."

Ashley initially testified that Michael did not return to the residence. Upon being confronted with her contrary statement to police, she then testified that Michael had returned before she called police. Upon being asked what had happened, she testified that she had witnessed Michael throw the TV down and jerk the phones out of the wall.

Upon Mattie's call to testify, she invoked her spousal privilege not to testify against Michael.

After considering this evidence, the trial court determined that the state had presented sufficient evidence to merit Michael's probation revocation. Specifically, the court was persuaded by the direct evidence showing Michael's presence at Mattie's home exhibiting violent behavior on the night when she was found stabbed. The court also considered the statements made by Mattie to Captain Newsom to fall within the excited utterance exception to the hearsay rule under La. C.E. art. 803(2). From that evidence, the court ordered revocation of Michael's probation and instituted the original sentence with credit for time served.

On appeal, Michael argues that the trial court erred in revoking his probation solely on evidence of a "mere arrest" and hearsay evidence related to that arrest.

Discussion

The U.S. Supreme Court jurisprudence extends limited due process protection to the parolee or probationer, and the revocation hearing is considered an informal, flexible proceeding, not a stage of criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Therefore, "the full panoply" of the constitutional rights afforded the defendant in the criminal proceedings are not provided the probationer. Morrissey v. Brewer, supra; Gagnon v. Scarpelli, supra.

Proof of an arrest alone, without any evidence of the conduct that led to arrest, does not suffice to revoke probation. State ex rel. Smith v. Louisiana, 03-3464 (La.10/7/04), 885 So.2d 512. At a hearing to revoke probation concerning the defendant's commission of another offense, the state is required to prove that the defendant committed or has been convicted of a felony, or that the defendant has been convicted of a misdemeanor offense. La. C. Cr. P. art. 901; State v. Harris, 368 So.2d 1066 (La.1979). Additionally, the court may revoke probation if it decides that the defendant was about to violate his probation through the commission of an offense or otherwise. La. C. Cr. P. art. 900.

Louisiana courts have interpreted Article 900 of the Criminal Code² to vest the trial judge with wide discretion when a condition of probation is violated and have held that the legislature intended punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the needs of the probationer. State v. Sussmann, 374 So.2d 1256 (La.1979); State ex rel Robertson v. Maggio, 341 So.2d 366 (La.1976). Likewise, this provision is interpreted as providing for an informal and summary hearing. State v. Lucas, 385 So.2d 253 (La.1980). Nevertheless, the Code of Criminal Procedure clearly contemplates that the defendant be given an opportunity to explain mitigating circumstances relating to the violation before the judge decides on whether to revoke probation. Id.

The burden of proof in a probation revocation hearing is not as great as that required to convict a person of a crime. Yet, the United States Supreme Court in Morrissey v. Brewer, supra, observed that the revocation hearing "must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation." Id. at 408 U.S. 488, 92 S.Ct. 2593. The federal courts have held that evidence that would establish guilt beyond a reasonable doubt is not required in order for the court to revoke probation. United States v. Grandlund, 71 F.3d 507 (5th Cir.1995), cert. denied, 516 U.S. 1152, 116 S.Ct. 1031, 134 L.Ed.2d 108 (1996); United States v. Burkhalter, 588 F.2d 604 (8th Cir.1978); United States v. Waldron, 306 F.Supp.2d 623 (E.D.La.2004). The federal courts have utilized a preponderance of the evidence standard of proof. United States v. Cofield, 233 F.3d 405 (6th Cir.2000), cert. denied, 532 U.S. 952, 121 S.Ct. 1424, 149 L.Ed.2d 364 (2001); United States v. Bujak, 347 F.3d 607 (6th Cir.2003). Additionally, the federal courts have allowed revocation of probation when the evidence and facts are such as to reasonably satisfy the judge that the probationer's conduct has not been as required by the conditions of probation. United States v. Guadarrama, 742 F.2d 487 (9th Cir.1984); United States v. Francischine, 512 F.2d 827 (5th Cir.1975), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975); United States v. Carrion, 457 F.2d 808 (9th Cir.1972); United States v....