State v. Miller
| Docket Number | M2023-00138-CCA-R3-CD |
| Decision Date | 30 October 2023 |
| Parties | STATE OF TENNESSEE v. GLEN EDWARD MILLER |
| Court | Tennessee Court of Criminal Appeals |
Assigned on Briefs October 10, 2023
Appeal from the Circuit Court for Marshall County No. 18-CR-28 Forest A. Durard, Jr., Judge
The Defendant, Glen Edward Miller, pleaded guilty to two counts of robbery and two counts of kidnapping, and the trial court sentenced him to a twelve-year effective sentence, to be served on probation after one year of confinement. In response to the Defendant's second proven probation violation, the trial court ordered him to serve the balance of his sentence in confinement. On appeal from this judgment the Defendant contends that: (1) the trial court improperly admitted hearsay evidence; (2) the evidence is insufficient to prove that he violated his probation; and (3) the trial court erred when it ordered him to serve the balance of his sentence in confinement. After review, we affirm the trial court's judgment.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Mitchell Aaron Raines, Assistant Public Defender, Appellate Division, Franklin, Tennessee (on appeal); and Michael J. Collins and William J. Harold, Assistant Public Defenders, Lewisburg, Tennessee (at hearing) for the appellant, Glen Edward Miller.
Jonathan Skrmetti, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Robert J. Carter, District Attorney General; and William Bottoms, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arises from the Defendant using a weapon in August 2017 to put two victims in fear and to take their XBOX, XBOX 360, Play Station 4, various games, an Amazon firestick, and a cellphone. After being indicted for multiple offenses, the Defendant pleaded guilty to two counts of robbery and two counts of kidnapping.[1] The trial court sentenced him to six years for each conviction, ordering that the robbery sentences run concurrently with each other and the kidnapping sentences run concurrently with each other, but the robbery sentences run consecutively to the kidnapping sentences. The total effective sentence was, therefore, twelve years, to be served at 30%. The trial court ordered the Defendant to probation after he served one-year day for day. The trial court entered the judgments of conviction on February 20, 2019. The Defendant's conditions of probation included that he not use illegal substances and that he not possess a weapon.
On April 3, 2019, the Defendant's probation officer filed an affidavit swearing that the Defendant had violated his probation. He stated that the Defendant had failed drug screens for marijuana and cocaine on March 14, 2019 and March 21, 2019. The trial court entered an agreed order on June 19, 2019, in which it revoked the Defendant's probation. The trial court ordered the Defendant to serve an additional six months in jail, consecutive to the sentence that the Defendant was serving at the time for a different conviction, and to attend a twelve-month drug rehabilitation program after being released from custody.
In August 2020, another probation violation was filed in which the Defendant's probation officer alleged that the Defendant had an active warrant for aggravated burglary and theft of property and had not verified his employment. After a hearing, the trial court dismissed the probation violation warrant and gave the Defendant jail credit for his incarceration between September 13, 2021, and December 15, 2021.
On November 22, 2022, the Defendant's probation officer filed an affidavit alleging that the Defendant had violated his probation by possessing a firearm on October 4, 2020, as evidenced by his charge by the Bureau of Alcohol Tobacco &Firearms. The trial court issued a warrant and held a hearing. At a hearing, the parties presented the following evidence.
Matt Thomas, the Defendant's probation officer, testified that he had supervised the Defendant since November 2022. He explained that, on February 20, 2019, the probation office instructed the Defendant to report on February 28, 2019. The Defendant informed them that he did not have to report because he had not yet served his one year of incarceration. The probation officer at the time, Mr. Thomas's colleague, informed the Defendant that he did, in fact, have to report. The Defendant did not report but did turn himself into jail to serve his one-year sentence. When he turned himself in to jail, he was drug screened and tested positive for cocaine and marijuana. He was, therefore, determined to have violated his probation and sentenced to six months of additional incarceration and also was instructed to attend a rehabilitation program. Mr. Thomas testified that his file did not show that the Defendant had attended the required program.
Mr. Thomas testified that he had never had contact with the Defendant for the duration of his supervision of him. The Defendant was under house arrest and being supervised by the federal pre-trial probation for his underlying charge. He said that the Defendant was under federal investigation stemming from him being the victim of a shooting on October 4, 2020 in Columbia, Tennessee. During the course of the investigation into the shooting, federal officers discovered the Defendant in possession of a firearm.
During cross-examination, Mr. Thomas said that the Defendant had been in jail or house arrest since Mr. Thomas began supervising him. He said that the federal case had not yet been resolved.
Neylan Barber, an officer with the Columbia Police Department testified that he knew the Defendant from the Defendant's previous encounters with law enforcement. He had knowledge of the October 4, 2020, shooting. He testified that he was called to a crime scene during the early morning hours of October 4, 2020, where he found over twenty shell casings in the roadway including those expended from a nine-millimeter and forty caliber weapon. There were over sixteen bullet impressions on the vehicle that was wrecked at the scene. There were cell phones and a gun visible in the vehicle. Both the Defendant and his passenger were taken to Maury Regional Hospital with gunshot wounds.
Officer Barber learned that the vehicle at the scene was registered to Sierra Harmon, who was the Defendant's girlfriend. Law enforcement seized the vehicle and obtained a search warrant for it. The search revealed fingerprints and blood on the gun in the vehicle, which was found where the Defendant was sitting in the vehicle. DNA testing showed that the Defendant's DNA was present on the gun. His fingerprint was additionally found on the weapon. A search of the phone in the car revealed that it belonged to the Defendant. On the phone's camera roll was a "selfie" of the Defendant and what appeared to be the weapon upon which his DNA was found. The photograph was time stamped four days before the shooting. Also, on the phone, the officer found messages related to the nine-millimeter gun, asking for a "stick" for it (which the officer said meant a magazine).
Officer Barber testified that the Defendant had multiple previous felony convictions, the first of which was from 2010.
Officer Barber interviewed the Defendant about the shooting. The Defendant said that the handgun belonged to the passenger in the vehicle, but he admitted that he had held the weapon at one point. Federal officials charged the Defendant with the federal offense of being a felon in possession of a handgun.
During cross-examination, Officer Barber testified that the Defendant originally told law enforcement that he was a passenger in the vehicle at the time of the shooting but later changed his statement, saying that he was the driver of the vehicle.
The trial court then admitted into evidence the federal indictment against the Defendant.
After the hearing, the trial court revoked the Defendant's probation. It ordered him to serve the balance of his sentence in incarceration, noting that he be given jail credit for his incarceration between September 13, 2021, and December 15, 2021, and between December 4, 2022, and January 11, 2023. In so doing, the trial court found:
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