Tavaress M. Johnson v. State of Alabama

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REL: 06/29/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2011-2012 CR-10-0979 T a v a r e s s M. Johnson v. S t a t e o f Alabama Appeal BURKE, Court Judge. Tavaress probation degree from Montgomery C i r c u i t (CC04-1446.70) M. J o h n s o n from following h i sguilty-plea robbery, burglary. appeals second-degree He was s e n t e n c e d the revocation convictions kidnapping, to 20 years' of his for first- and second-degree imprisonment as t o CR-10-0979 each conviction. concerning two probation Following charges should be Johnson's p r o b a t i o n At the probable indicating that probation. State i n order probable-cause to determine revoked, the circuit and r e i n s t a t e d h i s cause Johnson The v i c t i m introduced a hearing, domestic the day of violence call. the of O f f i c e r offense, she (R. was Officer the police responded The a black Blanchard earlier, tank while R.C. on The 1 Blanchard of s h e was on p a t r o l to a domestic further told i n the apartment a l l day." told but h a d gone t o t h e wrong neighbors abuse responded a girl called introduced N e i g h b o r s i n an a p a r t m e n t c o m p l e x i n f o r m e d h e r t h a t a man h a d b e e n " b e a t i n g 5.) was at the hearing. the Montgomery P o l i c e Department t h a t , w h i l e on revoked sentence. was n o t p r e s e n t the testimony i f Johnson's court evidence committed hearing that the neighbors the apartment Blanchard t o p and b l u e - j e a n that officer and had then t h a t t h e man was shorts 2 who and t h a t had had left. wearing he h a d r u n T h e r e w e r e two c h a r g e s of domestic violence, each i n v o l v i n g a d i f f e r e n t v i c t i m ; however t h e e v i d e n c e i n t r o d u c e d a t t h e h e a r i n g c o n c e r n e d one o f t h e v i c t i m s , Tempest J o h n s o n . N e i t h e r v i c t i m was p r e s e n t . 1 The v i c t i m l a t e r i n f o r m e d O f f i c e r B l a n c h a r d t h a t Johnson was w e a r i n g a b l a c k t a n k t o p a n d b l u e - j e a n shorts. 2 2 CR-10-0979 from the back of the apartments and escaped through a field. O f f i c e r B l a n c h a r d t e s t i f i e d t h a t t h e v i c t i m ' s mother and other relatives arrived apartment. When at the scene the v i c t i m , and ran Tempest to the Johnson, victim's came to the d o o r , O f f i c e r B l a n c h a r d o b s e r v e d t h a t h e r e y e was s w o l l e n and that s h e was " s o b b i n g , c r y i n g . " (R. 5.) O f f i c e r B l a n c h a r d a s k e d h e r what had happened he's been i n t h e r e beating and she s t a t e d : " [ M ] y b o y f r i e n d , me a l l d a y . " (R. 5.) S h e her boyfriend the medics because of the v i c t i m ' s that as T a v a r e s s s h e may h a v e Johnson. a concussion. t h a t " s h e had been v i s i b l y She stated that the information the shut Officer Blanchard condition, and t h e y Officer Blanchard beaten, obviously that stated testified beaten." (R. 6.) Blanchard she had the v i c t i m told h e r down i n t h e b e d r o o m a n d b e a t remained and t h e v i c t i m ' s victim also corroborated by t h e n e i g h b o r s and The v i c t i m was u n s u r e i f J o h n s o n h a d l e f t because The condition she had been g i v e n to O f f i c e r Blanchard, Johnson had h e l d face. physical called victim. According the victim's identified informed in the bedroom mother had knocked Officer Blanchard 3 her that her i n the the apartment until Officer on h e r d o o r . that she had CR-10-0979 previously violence, to signed a prompting prosecute warrant Officer Johnson against Blanchard f o r the present Johnson domestic i f she to ask for intended incident. She answered a f f i r m a t i v e l y , and O f f i c e r B l a n c h a r d f o r w a r d e d h e r i n f o r m a t i o n to the domestic-violence unit. probation officer Johnson's last-known However, concerning the v i c t i m Detective Department unrelated later testified he t h a t was or the t o be used. 3 and Magnus The not of J o h n s o n by the some who had to were Corporal Tina she at the McCaskill testified that was testified t h a t the v i c t i m arrest of him. Police investigating telephone calls and an made p l a c e d the c a l l s calls to charges. c r o s s - r e f e r e n c i n g the p i n M a g n u s made c o p i e s o f t h e admitted went Montgomery e - m a i l e d them t o t h e d o m e s t i c - v i o l e n c e u n i t . calls Johnson's They t h e n to press course into inmate contacted attempted i n the looked also offense. decided that, from the county j a i l . determined the address Andrew robbery, She was number forwarded Recordings of hearing. of assigned failed the to domestic-violence the present case. t o come t o a m e e t i n g unit She to press On c r o s s - e x a m i n a t i o n , Magnus a d m i t t e d t h a t t h e p i n number c o u l d have b e e n s h a r e d w i t h some unknown i n m a t e who also h a p p e n e d t o know Tempest J o h n s o n . 3 4 CR-10-0979 c h a r g e s as t o t h i s contacted by violence, offense. s h e was offense victim's the system told injuries that concerning i t was was d e t e r m i n e d . to determine She d e t e r m i n e d system Blanchard and c o n t a c t e d McCaskill i f Johnson that uncertain h i sprobation testified that essentially protective McCaskill any further then conditions contact that of h i s release orders, with testified Johnson whereby either that of she had and that telephone number that she had been g i v e n and t h a t number. (R. to contact she had, i n f a c t , She s t a t e d that Johnson had been informed victim; and t h a t the inmate t h e phone c a l l s that on he was victims. to a was to the female t h e same the victim, spoken Tempest to the v i c t i m at w e r e made a f t e r not to contact the c a l l s two he was t o listened the j a i l Johnson, 4 probation the made f r o m the female's signed to o f t h e phone c a l l s number t h a t checked a h i s t o r y i nthe recordings stated of officer. further from the the extent had any " h i s t o r y . " d i d have regarding refrain domestic whether McCaskill Johnson documents were originally this w o u l d be a m i s d e m e a n o r o r a f e l o n y u n t i l the 27.) Officer H o w e v e r , when s h e was was telling the the I t i s u n c l e a r w h e t h e r t h e w i t n e s s meant c r i m i n a l h i s t o r y i n general or s p e c i f i c a l l y a h i s t o r y of domestic v i o l e n c e . 4 5 CR-10-0979 female to drop testified the that domestic-violence the only v i c t i m , Tempest Officer testified new the that charges because of Webster Webster, Johnson come two spoke domestic-violence J o h n s o n , were Meghan that (R. 36.) He was the of wanted Webster case. to know testified: She said the she was. court. I the of Officer recorded phone number of t h e further male court from female i n the as during "Conflict," 39.) that she jail calls the was calls which asked the w i t n e s s is i f she 6 custody Officer on the She case. the Officer victim that in required was the to basically 5 had listened the to and that that of the v i c t i m . the any left. victim Johnson's knew a n d the telephone refers to She the alias. The recognized the O f f i c e r Webster s u b s e q u e n t l y t e s t i f i e d t h a t s p o k e n t o t h e v i c t i m t w i c e on t h e phone. (R. 63.) 5 "have into w o u l d be and (R. the officer, Johnson, was she dates, testified calls stated that inmate circuit Webster the taken Johnson's her conversation." the her not the v i c t i m had i f she told come t o end gave I could Tempest of " I asked her Johnson. domestic-violence. victim, status involving probation he telephone i n response to voice mails had against told McCaskill charges Johnson's charges with those was up". new charges. she had CR-10-0979 voice as Johnson's affirmatively. phone c a l l s and Officer O f f i c e r Webster was then Webster examined responded about the as f o l l o w s : "A. [ O f f i c e r W e b s t e r ] : W e l l , t h e m a j o r i t y o f c o n v e r s a t i o n was a b o u t d o m e s t i c - v i o l e n c e cases h i s p r o b a t i o n . He was s p e a k i n g t o [ t h e v i c t i m ] telling h e r -- d i r e c t i n g h e r t o go down t o d e t e c t i v e d i v i s i o n and t a l k t o t h e d e t e c t i v e s t e l l them t h a t t h e c h a r g e s were b o g u s . the and and the and "He f u r t h e r a d v i s e d h e r t h a t s h e n e e d e d t o w r i t e a l e t t e r t o t h i s Court, a d d r e s s e d t o Your Honor, and t e l l you t h a t t h e c h a r g e s were bogus. "He f u r t h e r t a l k e d a b o u t t h e o t h e r v i c t i m , c o u s i n , a n d t h a t s h e was g o i n g t o p l a y d i r t y t h a t he was g o i n g t o g e t h i s m o t h e r t o t e s t i f y none o f t h a t h a p p e n e d , b e c a u s e i f h i s c o u s i n going to play dirty, t h e n he was g o i n g to dirty. his and that was play " I mean, t h a t ' s j u s t b a s i c a l l y t h e h i g h l i g h t s . I t ' s -- i t ' s t w o v e r y l o n g c o n v e r s a t i o n s . S o t h e r e ' s a l o ti n i t . "Q. [ P r o s e c u t o r ] L e t me ask you t h i s , too. In a d d i t i o n t o him t a l k i n g and r e q u e s t i n g t h a t she say t h e s e c h a r g e s a r e b o g u s , d i d he s a y a n y t h i n g about his probation, t h a t t h e y -- a b o u t v i o l a t i n g h i s probation? "A. He d i d . He s a i d t h a t t h e j u d g e c o u l d n o t v i o l a t e h i m f o r one d o m e s t i c - v i o l e n c e c o n v i c t i o n ; t h a t one domestic-violence conviction couldn't get him v i o l a t e d , t h a t they would have t o l e t him o u t . " 7 CR-10-0979 (R. 41-42.) Defense not be 6 counsel revoked evidence hearing because concerning contended that that on the evidence that of Johnson Johnson's was probation had o f f e r e d domestic-violence the v i c t i m only hearsay charges. d i d not appear a l l hearsay. cause should was The c o u r t , shown that He at the however, Johnson had b a s e d , n o t o n l y on h e a r s a y , b u t f u r t h e r concerning O f f i c e r Webster those the probable committed the offenses that the State because the evidence determined argued t h e phone identified and t h e v i c t i m . calls. the voices 7 The c o u r t The c o u r t noted on t h e c a l l s further as stated The a u d i o r e c o r d i n g a n d a n o t h e r c o p y o f t h e r e c o r d i n g were a d m i t t e d as S t a t e ' s E x h i b i t 1 a n d , upon i n s p e c t i o n , t h e y i n d i c a t e t h a t J o h n s o n a t t e m p t e d t o i n d u c e t h e v i c t i m t o go t o t h e o f f i c e r , whose name he p r o v i d e d , a n d t e l l h i m t h a t h e r c l a i m s were bogus o r were made a c c o r d i n g t o h e r m o t h e r o r h e r g i r l f r i e n d s , a n d t h a t i n r e t u r n he w o u l d owe h e r f o r e v e r a n d l o v e h e r f o r e v e r . He a l s o i n s t r u c t e d h e r t o w r i t e a l e t t e r t o t h e j u d g e t e l l i n g h i m t h a t t h e c h a r g e s were u n t r u e . 6 A f t e r the court revoked Johnson's p r o b a t i o n , defense c o u n s e l was a l l o w e d t o e x a m i n e O f f i c e r W e b s t e r a g a i n , a n d she t e s t i f i e d t h a t s h e h a d s p o k e n t o J o h n s o n on a t l e a s t a m o n t h l y b a s i s a n d o f t e n on t h e t e l e p h o n e . She s p e c u l a t e d t h a t s h e h a d s p o k e n t o h i m 2 5 t o 30 t i m e s . She a f f i r m e d t h a t she knew t h a t J o h n s o n was s p e a k i n g t o t h e v i c t i m , Tempest J o h n s o n , on t h e r e c o r d e d c a l l s . O f f i c e r Webster a l s o t e s t i f i e d t h a t she had spoken t o t h e o t h e r v i c t i m , Johnson's c o u s i n , by t e l e p h o n e j u s t b e f o r e t h e c o u r t ' s r u l i n g and t h a t v i c t i m had s t a t e d t h a t she w o u l d n o t t e s t i f y b e c a u s e J o h n s o n ' s m o t h e r h a d o f f e r e d h e r money f o r h e r m e d i c a l b i l l s n o t t o t e s t i f y . 7 8 CR-10-0979 that was "I think with plenty a l l the there." Blanchard's (R. injuries. probable cause violence and On to testified at State the that revoked his he was Johnson the not sole basis Clayton an evidence, that probation opportunity that revoking 652 So. 2d 319, M a l l e t t e v. State, 572 So. 2d 1316, quoting App. Goodgain v. So. Officer of the found domestic- he 2d 2d State, 220, could 91, 755 So. 2d argues heard. may not Crim. 592 1 995); a l l the formal not mandated, 9 and 1990).'" App. 2007), (Ala. 1999). " W h i l e we r e c o g n i z e t h a t of a c r i m i n a l t r i a l are See 1994); (Ala.Cr.App. 591, form probation. (Ala.Cr.App. (Ala. the support also (Ala.Cr.App. 1317 93 not He evidence 222 victim contends that t o be 320 insufficient neither individual's State, 964 So. an C h a s t e e n v. State, was that hearsay State, v. 669 there court committed because evidence v. Hall the there Specifically, settled for noted observation to revoke h i s p r o b a t i o n . given is well also Johnson argues hearsay decision her I think probation. his only judge the that hearing. "'It the on believe presented court's Based revoke The concerning to appeal, evidence 52.) testimony victim's cumulative evidence, requirements and t h a t the Crim. CR-10-0979 b u r d e n o f p r o o f i s d i f f e r e n t , T h o m p s o n v . S t a t e , 356 So. 2 d 757 ( A l a . C r . A p p . 1 9 7 8 ) ( ' [ t ] h e s t a n d a r d o f proof i s not reasonable doubt or preponderance of the evidence, but reasonable s a t i s f a c t i o n from the evidence'), we also recognize that '[h]earsay i n f o r m a t i o n may n o t b e u s e d t o f u r n i s h t h e s o l e b a s i s o f t h e r e v o c a t i o n . ' W a t k i n s v . S t a t e , 455 S o . 2d 160 (Ala.Cr.App. 1984). See, a l s o , Moore v. S t a t e , 432 S o . 2 d 552 ( A l a . C r . A p p . 1 9 8 3 ) . I n t h e c a s e a t b a r , we f i n d t h a t t h e e v i d e n c e i n t h e r e c o r d was i n s u f f i c i e n t . A l t h o u g h e v i d e n c e s u f f i c i e n t t o support a c o n v i c t i o n i s not r e q u i r e d , a p r o b a t i o n o f f i c e r ' s r e p o r t a n d / o r an a r r e s t w a r r a n t , s t a n d i n g a l o n e o r t o g e t h e r , w o u l d be i n s u f f i c i e n t . " E x p a r t e B e l c h e r , 556 S o . 2 d 3 6 6 , 369 In the p r e s e n t concerning case, Johnson's although commission offense against the v i c t i m , hearsay evidence calling the v i c t i m . despite the court's order involved Johnson, to withdraw Johnson withdrawn. the other charges, He a l s o victim to avoid to recant c o r r o b o r a t i n g non- calls the As to persuade and vowed the the victim, jail, victim, Tempest i s common i n d o m e s t i c - insisted 10 from contact with l o v e and s u p p o r t attempted evidence recordings of Johnson instructing but 1989). the d o m e s t i c - v i o l a t i o n telephone the charges. v i o l e n c e c a s e s , he p r o m i s e d the of t h e r e was a l s o These App. t h e r e was h e a r s a y p r o v i d e d by t h e audio clearly withdrawing (Ala. Crim. i n return f o r her that this the charges victim retaliation to be tell i f she d i d CR-10-0979 not. He testify further victim's Blanchard injuries inflicted, her the victim against the other victim Officer as instructed as w e l l attacker following she was the assault. observed the victim made Officer that, when asked h e r what had happened. had b e a t e n h e r . r u l e because answered This statement concerning after identification as she was Blanchard's t h e knock utterance. I n Ex p a r t e C.L.Y., were of Johnson still crying was at the door, she stated that Johnson i s an e x c e p t i o n t o t h e h e a r s a y the attack Supreme C o u r t they i n a state of and c o n s t i t u t e d an excited 928 S o . 2 d 1 0 6 9 ( A l a . 2 0 0 5 ) , explained: "This o u t - o f - c o u r t statement ... i s e x c e p t e d from t h e o p e r a t i o n o f t h e h e a r s a y r u l e by Rule 803(2), A l a . R. Evid., which states: 'Excited Utterance. A statement r e l a t i n g t o a s t a r t l i n g event or c o n d i t i o n made w h i l e t h e d e c l a r a n t was u n d e r t h e stress of excitement caused by the event or condition.' " ' [ S ] t r i c t contemporaneity should not be r e q u i r e d b e t w e e n t h e s t a t e m e n t a n d t h e occurrence i n order f o rthe declaration to q u a l i f y f o rthe present hearsay exception. Indeed, o u r c o u r t s have s a i d that time alone i s n o t a d e t e r m i n i n g c r i t e r i o n and 11 the testimony i t was made a s t h e v i c t i m was s t i l l following Alabama soon The v i c t i m excitement the testimony as t h e v i c t i m ' s that h i s mother i f necessary. provided that t o have CR-10-0979 that a p p l i c a b i l i t y of t h i s e x c e p t i o n cannot be d e c i d e d u p o n t h e b a s i s o f a n y s p e c i f i e d t i m e o r number o f m i n u t e s b e t w e e n t h e a c t a n d t h e d e c l a r a t i o n . The c r i t i c a l f a c t o r i s w h e t h e r t h e p e r s o n who made t h e s t a t e m e n t is still under the influence of the emotions a r i s i n g from t h e s t a r t l i n g event. S t a t e d d i f f e r e n t l y , t h e s t a t e m e n t does n o t h a v e t o b e made c o n t e m p o r a n e o u s l y w i t h t h e s t a r t l i n g e v e n t o r c o n d i t i o n b u t i t must be uttered contemporaneously with the excitement resulting from the s t a r t l i n g e v e n t o r c o n d i t i o n . How l o n g t h e e x c i t e m e n t prevails i s largely determined by t h e c h a r a c t e r of the event or c o n d i t i o n . ' " C h a r l e s W. G a m b l e , M c E l r o y ' s A l a b a m a E v i d e n c e 2 6 5 . 0 1 ( 2 ) ( 5 t h e d . 1996) ( f o o t n o t e s o m i t t e d ) . " 928 So. 2d startling truth of the i f : i s made nervous Thus, "[a] occurrence or condition objection, (2) 1072-73. matter statement concerning i s a d m i s s i b l e t o prove the asserted therein, over a while the speaker i s under created the perception." by of the Rule] (1995). properly despite because time the admitted under Rule l a p s e o f 30 m i n u t e s victim was Charles W. [Author's made b y r a p e 803(2), between clearly 12 of the See U n i t e d S t a t e s v . R i v e r a , F . 3 d 1291 ( 9 t h C i r . 1 9 9 5 ) ( s t a t e m e n t s were hearsay the stress Gamble, Gamble's Alabama R u l e s o f E v i d e n c e § 8 0 3 ( 2 ) , 43 a (1) i t c o n c e r n s t h e o c c u r r e n c e o r c o n d i t i o n a n d excitement Statement § still rape F e d . R. victim Evid., and statements under stress or CR-10-0979 excitement (Ala. (Ky. of the rape); 1989). Ex p a r t e Whisenhant, 555 S o . 2 d 2 3 5 S e e a l s o D a w s o n v . C o m m o n w e a l t h , 867 S.W. C t . App. 1 9 9 3 ) ( h o l d i n g statement to immediately holding inadmissible v i c t i m ' s statement to another o f f i c e r at later time statement was bedroom where because made incident victim's officer a after admissible 2 d 493 of lack of spontaneity). as t h e v i c t i m , she had been of domestic-violence beaten, who a l l o w h e r mother and O f f i c e r B l a n c h a r d She left the i n the t h e room t o entry to the apartment. made t h e s t a t e m e n t t h a t h e r i n j u r i e s h a d b e e n i n f l i c t e d b y Johnson a s s h e was s t i l l excited utterance, sobbing as an the hearsay evidence, This not a where was solely case on t h e t e s t i m o n y violated could t h e terms be the attack. to probation Thus, h e r the hearsay as d i d t h e a u d i o of the probation a n d / o r an a r r e s t r e p o r t . court from exception supported the Here, had remained finally and revocation rule, recording. was or a r r e s t i n g based officer T h e r e was e n o u g h e v i d e n c e f r o m sufficiently of h i s probation satisfied that by c o m m i t t i n g which Johnson domestic- violence. As to opportunity Johnson's claim t o be h e a r d , that he was he d i d n o t o b j e c t 13 not on t h i s given the ground a t CR-10-0979 the hearing; therefore this matter i s not preserved. c o n s t i t u t i o n a l i s s u e s must be p r o p e r l y p r e s e r v e d review. Brown v. S t a t e , 1997).'" 2002), App. Smith v. S t a t e , quoting Evans v. 705 S o . 2 d 8 7 1 , 875 857 S o . 2 d 8 3 8 , 840 State, 7 94 So. 2d "'Even 8 for appellate (Ala. Crim. (Ala. Crim. 1234 App. App. ( A l a . Crim. 2000). "'"The general rules of preservation apply to probation revocation hearings. Puckett v. S t a t e , 680 S o . 2 d 9 8 0 , 983 ( A l a . C r i m . App. 1 9 9 6 ) , c i t i n g Taylor v . S t a t e , 600 S o . 2 d 1 0 8 0 , 1 0 8 1 (Ala. Crim. App. 1992). This Court 'has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the t r i a l court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ... , and (2) the requirement that a revocation hearing actually be held.' P u c k e t t , 680 S o . 2 d a t 9 8 3 . " ' " B a u e r v . S t a t e , 891 S o . 2 d 1 0 0 4 , 1 0 0 6 ( A l a . C r i m . A p p . 2 0 0 4 ) ( q u o t i n g Owens v . S t a t e , 728 S o . 2 d 6 7 3 , 680 ( A l a . C r i m . A p p . 1998 ) ) . T h i s c o u r t h a s a l s o recognized a t h i r d e x c e p t i o n t h a t a defendant can r a i s e f o r t h e f i r s t t i m e on a p p e a l t h e r e q u i r e m e n t that the court advise the defendant of h i s or her 7\ ^ r\ r\ A \ I _ j _ J . _ r\ r - i j _ _ j _ _ "-7^0 r-i_ r "-i A l t h o u g h J o h n s o n d i d n o t f u l l y a d d r e s s t h e c o u r t , he d i d deny h a v i n g c o m m i t t i n g t h e o f f e n s e s t o t h e j u d g e a t t h e e n d o f the h e a r i n g . 8 14 CR-10-0979 right to request an a t t o r n e y to represent the defendant during probation-revocation proceedings. See Law v . S t a t e , 778 S o . 2 d 24 9, 250 ( A l a . C r i m . App. 2000). A f o u r t h exception to the p r e s e r v a t i o n r u l e r e c e n t l y a n n o u n c e d by o u r Supreme C o u r t a l s o a l l o w s a d e f e n d a n t t o r a i s e f o r t h e f i r s t t i m e on appeal the a l l e g a t i o n that the c i r c u i t court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings. See D e a n v . S t a t e , 57 S o . 3 d 169 ( A l a . 2 0 1 0 ) . " Saffold See App. did v. S t a t e , also Jackson 77 S o . 3 d 1 7 8 , 179 v. 2003)( h o l d i n g not address hearing prior Based probation State, So. him p e r s o n a l l y the 2d 3 6 5 , 366 that Jackson's claim that to accepting on 867 (Ala. Crim. i s due t o be the was the t r i a l not revocation 2011). ( A l a . Crim. at the probation h i s admission foregoing, App. of judge revocation preserved). Johnson's affirmed. AFFIRMED. Windom, P . J . , c o n c u r s . the result. K e l l u m and J o i n e r , J J . , concur i n Welch, J . , d i s s e n t s w i t h 15 opinion. CR-10-0979 WELCH, J u d g e , d i s s e n t i n g . The m a j o r i t y has a f f i r m e d t h e c i r c u i t o f T a v a r e s s M. J o h n s o n ' s p r o b a t i o n . I must r e s p e c t f u l l y In degree 2005, burglary. Johnson's Johnson second-degree Although the s e n t e n c e was s p l i t a period portion M. pleaded I would of probation. of Johnson's counts of third-degree guilty kidnapping, He was s e n t e n c e d t o 20 y e a r s ' conviction. by Because revocation reverse, dissent. Tavaress robbery, court's record to serve and circuit court conducted The circuit court revoked second-degree i s unclear, apparently time i n p r i s o n Johnson followed the probationary was c h a r g e d domestic violence. the with two On M a r c h 24 a n d 3 1 , a probation-revocation Johnson's first- imprisonment f o r each In 2011, during sentence, to probation. hearing. This appeal followed. Officer Department R. C. testified Blanchard at the of Woodley upstairs the Road when apartment tenants tenants had been believed a male Montgomery revocation F e b r u a r y 2 3 , 2 0 1 1 , s h e was d i s p a t c h e d on the that t o an a p a r t m e n t reported screaming hearing Police that complex someone and h o l l e r i n g i n an a l lday; was a s s a u l t i n g a f e m a l e . 16 on When CR-10-0979 Officer Blanchard arrived, suspect had just run the tenants t o l d into a field her that behind the apartments. O f f i c e r B l a n c h a r d went t o t h e u p s t a i r s a p a r t m e n t . Tempest Johnson, swollen shut Blanchard Officer that and she have a One crying. of The her Tempest Johnson, victim, eyes told was Officer had beat her a l l day. f o r medical assistance, and a r e s c u e Tempest's to the doctor. mother Johnson was that had Tempest arrived found and might and took arrested for violence. Andrew Department t e s t i f i e d obtained a county was door. Medical personnel stated concussion. Detective he the her boyfriend, responded. domestic to Blanchard called unit Tempest came the male jail identification list in Magnus that of as p a r t the which number of the of a robbery telephone the inmate ("pin") Montgomery was calls investigation, dialed suspect's used. Police from personal- Detective Magnus n o t i c e d t h a t t h e r e w e r e t w o new t e l e p h o n e n u m b e r s l i s t e d t h e i n m a t e ' s p i n number. the under He l i s t e n e d t o t h e t w o r e c o r d i n g s o f t h e c o n v e r s a t i o n s p l a c e d t h e t w o new t e l e p h o n e n u m b e r s . These c o n v e r s a t i o n s c o n s i s t e d o f an i n m a t e t a l k i n g t o a f e m a l e about dropping the charges in some 17 domestic-violence dispute. CR-10-0979 Detective Magnus was Detective Magnus cross-referenced other not able to ascertain the telephone t e l e p h o n e numbers d i a l e d b y i n m a t e s records disclosed telephone agent that number. about Johnson Corporal Department Tina Magnus that of s h e was Tempest's scheduled an McCaskill; however, appointment. left a notified the calls to The to this Johnson's case agent Police assigned to She c o n t a c t e d T e m p e s t f o r Tempest Tempest Montgomery the case domestic-violence case. appointment number calls. McCaskill testified names. from the j a i l . h a d made s e v e r a l Detective the telephone their did to not come and Corporal up show see for the C o r p o r a l M c C a s k i l l t e l e p h o n e d Tempest a g a i n and message During Corporal M c C a s k i l l ' s t e s t i m o n y , t h e S t a t e a d m i t t e d a document regarding conditions signed contact of this when release document with no one following i n which the v i c t i m . t e l e p h o n e number McCaskill was the dialed county j a i l who asked number and t h e number the female Johnson's he Corporal the same answered. agreed frequently recipient 18 not McCaskill had used dialed arrest. to Johnson have testified to telephone by Johnson t o drop that Tempest from by the u n i d e n t i f i e d of the c a l l any the inmate domestic CR-10-0979 violence that charges Tempest against was the him. Corporal victim in only domestic-violence c a s e ; h o w e v e r , she not i f Tempest had check violence to see i n cases Officer Meghan Webster testified that and Paroles his probation telephoned her telephone During officer. and the Johnson's case. the victim one Tempest that stated she gave in her the revocation of telephone number she telephone number she v i c t i m of Board mail to used Pardons that her as Tempest name and inquired about status asked Tempest court. did Webster with i f she was and told appear testified Tempest the Tempest O f f i c e r Webster not inmate opinion, the cases, domestic-violence unidentified 19 of call. contact charged domestic Tempest's come t o to did returned Tempest t h a t , i n her with O f f i c e r Webster 9 Officer J o h n s o n was also assaulting his cousin. 9 was. date. the and voice Johnson's required court the Alabama O f f i c e r Webster hearing. county j a i l a c k n o w l e d g e d t h a t she been s u p e r v i s i n g Johnson c a l l , Tempest that w o u l d be the had a County counties. O f f i c e r Webster telephone of she testified Montgomery O f f i c e r Webster t e s t i f i e d left number. of one been i n surrounding McCaskill was dialed female's domestic for the that the the same from voice violence the on for CR-10-0979 the recordings person Officer calls who identified Webster made two c a l l s herself testified from "Conflict," Officer of those the which, according Johnson advertisements asking that Webster conversations i n the telephone identified Johnson's t o h e r as t h e male "career and had rap music on Officer as alias. manager" had "Conflict" as " C o n f l i c t . " Johnson as t h e male v o i c e of the to Webster, i s Johnson's f o r Johnson's i d e n t i f i e d himself Officer j a i l the voice on t h e t e l e p h o n e . the female Webster t e s t i f i e d that introduced j a i l as Tempest that county matched sent which Webster her Johnson identified i n t h et e l e p h o n e c a l l s made f r o m t h e the domestic testified violence regarding charge the be dropped. telephone as f o l l o w s : "[T]he majority of the conversation was about domestic v i o l e n c e cases and h i s p r o b a t i o n . He was s p e a k i n g t o T e m p e s t a n d t e l l i n g h e r -- d i r e c t i n g h e r t o go down t o t h e d e t e c t i v e d i v i s i o n a n d t a l k t o t h e detectives and t e l l them t h a t the charges were bogus. "He f u r t h e r a d v i s e d h e r t h a t s h e n e e d e d t o w r i t e a l e t t e r t o t h i s C o u r t , a d d r e s s e d t o Your Honor, and t e l l you t h a t t h e c h a r g e s were bogus. "He f u r t h e r t a l k e d a b o u t t h e o t h e r v i c t i m , h i s c o u s i n , a n d t h a t s h e was g o i n g t o p l a y d i r t y a n d t h a t he was g o i n g t o g e t h i s m o t h e r t o t e s t i f y t h a t none o f t h a t h a p p e n e d b e c a u s e i f h i s c o u s i n was 20 CR-10-0979 going to dirty." (R. play dirty, then he was going to play 41-42.) The audio admitted into revoked had recordings evidence Johnson's committed Johnson the of the at the probation, new on of committed had The main recordings opinion answered Blanchard that "corroborating the door at to the that the both apartment beaten evidence" the that he circuit court indicating offense. had nonhearsay court violence. the the v i c t i m ' s " e x c i t e d Johnson admitted cause s o l e l y on h e a r s a y determines o f J o h n s o n and when s h e testimony a new were circuit probable that revoked his probation that The domestic appeal erroneously he conversations hearing. finding offense argues telephone I audio utterance" and told her Officer served supporting hearing. jail other disagree as hearsay with both recordings does findings. First, Johnson no admit where that domestic v i o l e n c e . to drop the s o m e o n e who charges. in he He the jail committed telephone the i s heard t r y i n g This behavior i s innocent as constituting to persuade the victim is equally consistent i t i s with 21 assault s o m e o n e who is with guilty. CR-10-0979 Thus, I do Johnson's serve as not believe guilt. the "nonhearsay" the probation-revocation opinion's that recordings I do not evidence that, admissibility main the Therefore, I also disagree against that are believe evidence that i n support of hearsay proceedings. have Thus, to the rule application I disagree the the context of Supreme Court Alabama needs t o be violated only a hearsay at a evidence of may not probation. (Ala. Goodgain v. State, C r i m . App. 1 9 9 5 ) ; C h a s t e e n v. C r i m . App. 1 9 9 4 ) ; and App. the v. 755 State, 1990). 22 a the Court 48 has hearsay 2d is However, for revoking So. and court a probationer hearing. So. reasons trial therefore, State, State, M a l l e t t e v. that that the this sole basis Sams v . 1999); Clayton Crim. held probation; C r i m . App. (Ala. long satisfied form for revocations, probation-revocation individual's 2010); have reasonably condition admissible probation analysis with in follow. In "excited utterance" any can revocation. i n Alabama, e x c e p t i o n s of they of 3d 591, 665, an 668 592 (Ala. 669 So. 2d 220, 222 (Ala. 652 So. 2d 319, 320 (Ala. So. 2d 1316, S t a t e , 572 1317 CR-10-0979 The main statement opinion was "supported" "an states that exception other hearsay to offered because the the victim's hearsay rule," i t Thus, the at the h e a r i n g . main o p i n i o n appears to f i n d t h a t a hearsay e x c e p t i o n d e s t r o y s the hearsay utterance nature of the constitutes hearsay. an the to Evid. the an words, i n a c r i m i n a l trial exceptions exist find sufficiently Ala. R. otherwise reliable Evid. exception A found admissibility "'[f]ormal in So. inadmissible to warrant Rule 803, otherwise procedures 2d 82 9, 439 830 So. and context evidence of 197, a utterance"). of Ala. rules other to a l l o w the trial hearsay R. evidence concerns the discretion 23 employed State, App. 1983)). probation-revocation hearing, i s a d m i s s i b l e at the 673 1 995) ( q u o t i n g M a r q u i s (Ala. Crim. of the an However, not W i l l i a m s v. be 803, within hearsay. are to See R u l e falls Evid., of evidence App. 198-199 In hearsay inadmissible (Ala. Crim. 2d exclusion i t s admission. probation revocation hearings.'" State, the of "excited determination that in excited when t h a t h e a r s a y t e s t i m o n y i s f o u n d , t o be to An (inadmissable hearsay court, court trial I disagree. exception See R u l e 8 0 3 ( 2 ) , A l a . R. testimony i s admissible by evidence. v. In "hearsay trial judge CR-10-0979 whether or not i t i s w i t h i n one exceptions Crim. G r a n t h a m v. App. 1991). unnecessary because, it in an reliable -- "The court applies. not A l a . R. hearsay nonhearsay The be and hearsay the Crim. evidence, Sams, 48 So. i t 3d a t 668. hearsay finds that treated not be equally. upheld revocation. the Alabama where 57 exception hearing that exception reliable, court i n making relevant hearsay." may Rule consider both i t s determination. reliable, and i t cannot probation." For purposes of p r o b a t i o n revocation, the the is hearsay any "The (Ala. r e v o c a t i o n of hearing court t o a d m i t any hearsay distinction between there is no and hearsay that reason, hearsay Such a s c e n a r i o Supreme a including of a p r o b a t i o n For 53, admit hearsay exception an Thus, i n the c o n t e x t P. evidence reliable, fits not receive supporting because Alabama a l l o w s that or h o w e v e r , m u s t be sole evidence 2d hearsay c o u r t may privileged, 27.6(d)(1), a So. [hearsay] probation-revocation hearing may recognized 580 finding whether legally the State, Alabama i n Alabama, the finds evidence Thus, of Court i s the 24 does not. revocation, a l l hearsay is probation may sole violates stated: that due revocations evidence process. "'"The u s e of supporting In Sams, hearsay as CR-10-0979 the sole means probation denies cross-examine forms the (quoting App. 222 the of v. quoting (Ala. Crim. revoked based the persons Goodgain 1999), proving I a violation a probationer basis Because from of the the right originating 755 So. i n turn Clayton 2d v. a to confront the revocation."'" State, of condition and information 48 591, State, So. 592 669 3d of at to that 668 (Ala. Crim. So. 2d 220, App.1995)). believe solely majority's on that Johnson's hearsay, decision to decision. 25 probation has been I must r e s p e c t f u l l y dissent affirm court's the hearing

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