State v. Walker
Decision Date | 25 January 2010 |
Docket Number | No. M2008-02824-CCA-R3-CD.,M2008-02824-CCA-R3-CD. |
Citation | 307 SW 3d 260 |
Parties | STATE of Tennessee v. Avery WALKER. |
Court | Tennessee Court of Criminal Appeals |
Cara E. Lynn (on appeal) and John C. Colley (at hearing), Columbia, Tennessee, for the appellant, Avery Walker.
Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney General; Mike Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney General, for the appellee, State of Tennessee.
ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W. WEDEMEYER, JJ., joined.
The defendant, Avery Walker, appeals the trial court's revocation of his probation, arguing that he was denied his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because the declarant of the affidavit establishing that he tested positive for cocaine did not testify at the revocation hearing. After review, we affirm the judgment of the trial court.
Pursuant to a negotiated plea agreement, the defendant received twelve years of probation when he pled guilty to two counts of possession of a Schedule II controlled substance in an amount of less than 0.5 grams and one count of facilitation of possession of cocaine in an amount over 0.5 grams. On September 21, 2005, a probation violation warrant was issued alleging that the defendant violated his probation by testing positive for cocaine. The violation warrant was later amended to allege that the defendant violated his probation by failing to report to his assigned probation officer. The warrants were served on the defendant on August 5, 2008.
A probation revocation hearing was held on October 23, 2008, at which Emily Thigpen, the defendant's current probation officer, testified. Thigpen stated that the defendant was placed on probation on September 10, 2001 for a term of twelve years. Thigpen has supervised the defendant since May 2006, but he has never reported to her.
The State sought to admit an affidavit from Dr. Timothy Robert stating that a specimen taken from the defendant tested positive for cocaine. The defendant objected on chain of custody and confrontation grounds, but the trial court admitted the affidavit over the defendant's objection. The affidavit was as follows:
In revoking the defendant's probation, the court stated,
The defendant argues that the trial court erred in revoking his probation based on the affidavit stating that he had tested positive for cocaine. He specifically asserts that he has a right to confrontation in a probation revocation hearing, that an affidavit is testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the affidavit was inadmissible under Crawford because he was unable to cross-examine the declarant of the affidavit, and that Tennessee Code Annotated section 40-35-311 is no longer valid because it was enacted prior to Crawford.
A trial court is granted broad authority to revoke a suspended sentence and to reinstate the original sentence if it finds by the preponderance of the evidence that the defendant has violated the terms of his or her probation and suspension of sentence. Tenn.Code Ann. §§ 40-35-310, -311 (2006). The revocation of probation lies within the sound discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn.Crim.App.1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.Crim.App.1991). To show an abuse of discretion in a probation revocation case, "a defendant must demonstrate `that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the conditions of probation has occurred.'" State v. Wall, 909 S.W.2d 8, 10 (Tenn.Crim.App.1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn.Crim.App.1980)).
The Sixth Amendment's Confrontation Clause provides that, "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Article I, section 9 of the Tennessee Constitution states, "That in all criminal prosecutions, the accused hath the right to ... meet the witnesses face to face." The United States Supreme Court explained in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), that the defendant at a revocation hearing has "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." However, the court elaborated that "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id.
In Crawford, the United States Supreme Court held that an out-of-court, testimonial statement by a declarant is inadmissible in a criminal prosecution unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant about the substance of the statement. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court, however, did not address the scope of when its decision would apply.
The Tennessee courts have yet to determine whether Crawford applies in a probation revocation proceeding. However, a general survey of other jurisdictions reveals that the federal circuits and state courts addressing the issue have found that Crawford does not apply to probation or supervised release revocation hearings. See, e.g., United States v. Kelley, 446 F.3d 688, 691-92 (7th Cir.2006); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C.Cir.2005); United...
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