Rel 04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1449
_________________________
Quishaun Davontay Brazery
v.
State of Alabama
Appeal from Montgomery Circuit Court
(CC-04-676.70)
WELCH, Judge.
In 2004, Quishaun Davontay Brazery was convicted of two
counts of first-degree robbery, a violation of § 13A-8-41,
Ala. Code 1975.
For each conviction he was sentenced to 20
years' imprisonment, to be served concurrently.
The sentences
CR-06-1449
were split, and he was ordered to serve three years.
The
trial court suspended the split sentences and placed Brazery
on four years' probation.
In 2007, a delinquency report was filed, along with a
motion to revoke Brazery's probation, claiming that Brazery
had violated the terms of his probation by committing two new
offenses, including possession of a controlled substance and
possession of drug paraphernalia, and by failing to maintain
suitable employment.
Counsel was appointed for Brazery, and
a probation revocation hearing was held on April 11, 2007.
The transcript of the probation revocation hearing begins
with the following:
"THE COURT: Quishaun Brazery.
are here on a probation revocation.
All right.
We
"PROBATION OFFICER:
We are here today on
Quishaun Brazery.
Charge number one.
Do not
violate any federal, state or local law. Possession
of a controlled substance.
"Charge number two.
Violation of condition
number one. Do not violate any federal or state or
local law. Possession of drug paraphernalia.
"Charge number three.
Violation of condition
number 6.
Failure to work faithfully at suitable
employment.
"Brazery was read and explained the orders and
conditions of supervised probation on 11-3-04.
2
CR-06-1449
"As of the date of this report Brazery has
failed to provide proof to this officer that he is
employed.
"He was also counseled on 5-23-06 and 3-5-07 to
bring the document that he was employed or that he
was receiving disability.
"CORPORAL K.C. BENTLEY
"was previously sworn, testified as follows:
"DIRECT EXAMINATION
"BY MR. FOREMAN [Prosecutor]:
"Q.
State your name, please.
"A.
Corporal K.C. Bentley."
(Supplemental Record at R. 3-4.)
followed.
Cpl. Bentley's testimony
She testified that she was the case agent for the
new drug charges against Brazery.
She testified that two
other officers had observed Brazery standing next to a vehicle
where
he
appeared
to
be
engaged
in
drug
activity.
officers approached Brazery, and Brazery ran.
saw Brazery throw a scale to the ground.
The
The officers
They also saw a
plastic bag fall out of his hand.
Brazery was apprehended,
and the plastic bag was retrieved.
The officers believed the
plastic bag contained crack cocaine.
contact
with
Brazery
when
Brazery
3
Cpl. Bentley came into
was
transported
to
the
CR-06-1449
narcotics office.
The plastic bag and its contents
were
turned over to Bentley for her to perform a field test.
The
substance inside the plastic bag tested positive for cocaine.
During cross-examination, Cpl. Bentley admitted that she
did not have personal knowledge of the circumstances and that
her knowledge regarding Brazery's actions that resulted in the
new charges was based on hearsay.
The trial court then asked
the State if there were any other witnesses.
responded
that
he
had
no
other
witnesses.
The prosecutor
Once
it
was
determined there would be no further testimony, the following
occurred:
"[Defense counsel]: Your Honor, we would just
object if the court is even –- we are going to ask
the court first of all if anything, to put him in a
delinquent
status
until
the
other
cases
are
resolved. And ask the court not to revoke him since
they only had hearsay testimony.
"Officer Bentley was not there and did not see
what happened, and can only, you know, relate to
this court what she had heard from the other
officers.
"And, Your Honor –"THE COURT: Why don't we have the other officers
here?
"[Prosecutor]: This is the only one that was
here, Judge.
4
CR-06-1449
"[Defense counsel]: And, Your Honor, on the job
portion, I understand their concern that he doesn't
have a job but –"THE COURT: All right.
I will let you know."
Okay.
Thank y'all.
(Supplemental Record at R. 8.)
After
probation.
the
hearing,
the
trial
court
revoked
Brazery's
The entry in the case-action summary reads as
follows:
"Revocation hearing. [Brazery] appeared before the
Court with his attorney.
The probation officer
testified that [Brazery] had been arrested for a
[sic] new offenses of Poss. of a Controlled
Substance and Poss. of Drug Paraphernalia and
failure to work.
Corporal Bentley, Montgomery
Police Dept., testified that on March 25, 2007,
[Brazery] was arrested when he was found to be in
possession of a plastic bag containing crack cocaine
and a set of scales.
The probation officer
testified that [Brazery] had failed to work and had
been
counseled
several
times
about
finding
employment.
Based on the testimony of Corporal
Bentley and probation officer Jones, court finds
that [Brazery] is in violation of [h]is probation
for being in possession of drugs and scales and
failure to work, and hereby revokes [h]is probation
and places his 3 yr. sentence into effect.
To be
given credit for any time served on this offense."
(Supplemental Clerk's Record at CR. 4.)
This appeal followed.
On appeal, Brazery claims that the trial court erred in
revoking
his
probation
because,
5
he
says,
the
evidence
CR-06-1449
presented was insufficient to support revocation in that the
only evidence presented was hearsay.
This Court has stated:
"It is well settled that hearsay evidence may
not form the sole basis for revoking an individual's
probation.
See Clayton v. State, 669 So. 2d 220,
222 (Ala.Cr.App. 1995); Chasteen v. State, 652 So.
2d 319, 320 (Ala.Cr.App. 1994); and Mallette v.
State, 572 So. 2d 1316, 1317 (Ala.Cr.App. 1990).
'The use of hearsay as the sole means of proving a
violation of a condition of probation denies a
probationer the right to confront and to crossexamine the persons originating information that
forms the basis of the revocation.'
Clayton, 669
So. 2d at 222."
Goodgain v. State, 755 So. 2d 591, 592 (Ala. Crim. App. 1999).
In this case, the only evidence indicating that Brazery
had violated his probation by committing other crimes was
hearsay
testimony
independent
of
knowledge
Cpl.
of
Bentley.
the
Cpl.
assertions
Bentley
contained
had
in
no
the
police reports detailing the circumstances surrounding the two
charged offenses.
Thus, only hearsay
Brazery to the illegal drugs.
evidence connected
See Beckham v. State, 872 So.
2d 208, 211 (Ala. Crim. App. 2003)("While hearsay evidence is
admissible in a revocation proceeding, it may not serve as the
sole basis of the revocation."); Ex parte J.J.D., 778 So. 2d
240, 242 n. 2 (Ala. 2000) ("[T]he only evidence presented by
the
State
in
support
of
the
6
allegation
that
J.J.D.
had
CR-06-1449
received
stolen
property
was
hearsay
testimony
about
the
contents of the offense report related to that charge."); see
also Richardson v. State, 863 So. 2d 122 (Ala. Crim. App.
2003).
The State argues that since Cpl. Bentley conducted the
field test on the substance found in the plastic bag, some of
her testimony was not hearsay.
Although that is correct, the
nonhearsay portion of her testimony did not in any way connect
the tested drugs to Brazery; thus, it did not constitute
sufficient evidence to revoke Brazery's probation based on the
new drug charges.
"While
convicted
of
it
is
the
not
necessary
charged
offense
that
a
before
probationer
the
probation
be
is
revoked, it is nevertheless true that the filing of charges or
an
arrest,
standing
probation revocation."
(Ala.
Crim.
App.
alone,
is
insufficient
ground
for
Mitchell v. State, 462 So. 2d 740, 742
1984).
"'The
State
must
submit
enough
substantive evidence to reasonably satisfy the trier of the
facts that a condition of probation was breached.'"
Mitchell
v. State, 462 So. 2d at 742 (quoting Hill v. State, 350 So. 2d
716, 718 (Ala. Crim. App. 1977)).
7
CR-06-1449
In addition, the State contends that even if the trial
court erred in revoking Brazery's probation on the ground that
he committed new offenses, Brazery's probation could still be
revoked on the probation officer's testimony that Brazery had
failed to maintain suitable employment.
We disagree.
The probation officer's comments were made before the
hearing began and were intended merely to inform the circuit
court
and
the
defendant
delinquency report.
of
the
charges
underlying
the
The comments were comparable to reading
an indictment before or during opening statements; however, an
indictment
is
defendant.
See
not
considered
to
be
evidence
against
a
Wiggins v. State, 347 So. 2d 543, 545 (Ala.
Crim. App. 1977)(it is not improper to read an indictment to
jury,
but
the
defendant);
see
indictment
is
Mitchell,
not
supra
evidence
(filing
against
charges
alone
the
is
insufficient to revoke probation).
Presiding Judge Baschab, in her dissent, contends that
the circuit court could properly revoke Brazery's probation on
the ground that he had not maintained suitable employment
because, she argues, Brazery did not object to the probation
officer's
statements;
thus,
the
8
statements
were
properly
CR-06-1449
before
the
court.
Presiding
Judge
Baschab
reaches
this
conclusion by relying on long-standing precedent that the
"[f]ormal procedures and the application of strict rules of
evidence
are
hearing."
not
required
in
[a]
probation
revocation
Chenault v State, 777 So. 2d 314, 316 (Ala. Crim.
App. 2000).
However, the proposition of law cited in Chenault
is
broad
not
so
as
to
admit
as
evidence
comments
by
a
probation officer who is not called as a witness and who is
not sworn.
Black's Law Dictionary defines a witness as:
"[o]ne who gives testimony under oath or affirmation (1) in
person,
(2)
affidavit."
by
oral
Black's
or
Law
written
Dictionary
deposition
1633
(8th
or
ed.
(3)
by
2004).
Under the facts here, the probation officer was not called,
sworn, or questioned.
The probation officer was not called as
a witness, and the record does not reflect that his comments
were made under oath.
question. 1
Nor were they made in response to a
Brazery had no reason to believe that the circuit
1
The delinquency report is not included in the record.
Even if a sworn delinquency report had been contained in the
record, it, like an indictment, is not proof of guilt. See
Mitchell v. State, 462 So. 2d at 742 ("the filing of charges
or an arrest, standing alone, is insufficient ground for
probation revocation")
9
CR-06-1449
court would treat the comments as evidence until he received
the order revoking his probation. 2
Therefore, the probation officer's comments in this case
cannot be considered evidence.
It defies logic to conclude
that Brazery should have objected to evidence that, in fact,
was never presented.
Because the State failed to present any evidence other
than
hearsay
with
regard
to
the
charge
that
Brazery
had
committed new offenses, and no evidence to reasonably satisfy
the circuit court that Brazery had failed to maintain suitable
employment, the circuit court erred in revoking Brazery's
probation.
The
circuit
court's
order
revoking
Brazery's
probation is reversed, and this cause is remanded for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Shaw, J., concurs.
Wise, J., concurs in the result.
Baschab, P.J., dissents, with opinion, joined by McMillan, J.
2
Additionally, Brazery had no reason to object to the
probation officer's comments because the comments accurately
reflected why the probation officer had filed a delinquency
report against Brazery. Because the probation officer was not
a witness, Brazery had no opportunity to object or to question
the probation officer regarding the basis of the charges.
10
CR-06-1449
BASCHAB, PRESIDING JUDGE, dissenting.
I concur with the conclusion in the main opinion that the
circuit court improperly revoked the appellant's probation on
the ground that he had committed new offenses because the
State presented only hearsay evidence that he had committed
the new offenses.
However, I respectfully disagree with the
conclusion that this case must be reversed because there was
not any evidence to support the revocation of his probation on
the ground that he had not maintained suitable employment.
The main opinion concludes that the probation officer's
statements regarding the allegation that the appellant had not
maintained suitable employment did not constitute testimony
because the officer "was not called as a witness, and the
record does not reflect that his comments were made under
oath " and that the circuit court's reliance on the officer's
statements
during
the
revocation
hearing
violated
the
appellant's right to confront and cross-examine witnesses.
___ So. 2d at ___.
However,
"'"a probation revocation hearing is not criminal in
nature, and therefore neither formal procedures nor
formal rules of evidence need be followed by the
trial court."' Allen v. State, 644 So. 2d 45, 46
(Ala. Crim. App. 1994)(quoting Smith v. State, 445
So. 2d 573, 574-575 (Ala. Crim. App. 1984));
11
CR-06-1449
Thompson v. State, 356 So. 2d 757 (Ala. Crim. App.
1978); Goodrum v. State, 418 So. 2d 942 (Ala. Crim.
App. 1982)). Formal procedures and the application
of strict rules of evidence are not required in [a]
probation revocation hearing. See Allen, 644 So. 2d
at 46."
Chenault v. State, 777 So. 2d 314, 316 (Ala. Crim. App. 2000).
The appellant did not object to the probation officer's
statements during the revocation hearing and did not attempt
to question the probation officer regarding those statements.
Also, he did not present his argument that he was denied the
right to confront and cross-examine the probation officer to
the circuit court.
the probation
Because the appellant did not challenge
officer's statements
during
the revocation
hearing, those statements were properly before the circuit
court.
"'"The
fact
that
evidence
which
is
introduced in a case may be, if objected
to, incompetent evidence under some one or
more exclusionary rules of evidence does
not destroy its probative effect, if it is
admitted without objection."
Smith v.
State, 40 Ala. App. 600, 119 So. 2d 202,
cert. denied, 270 Ala. 741, 119 So. 2d 203
(1960).'
"Watson v. State, 398 So. 2d 320, 325 (Ala. Cr.
App.), writ denied, 398 So. 2d 332 (Ala.), cert.
denied, 452 U.S. 941, 101 S. Ct. 3085, 69 L. Ed. 2d
995 (1981)."
12
CR-06-1449
Johnson v. State, 642 So. 2d 528, 530 (Ala. Crim. App. 1994).
The main opinion asserts that "Brazery had no reason to
believe that the circuit court would treat the comments as
evidence until he received the order revoking his probation"
and that "[i]t defies logic to conclude that Brazery should
have objected to evidence that, in fact, was never presented."
___ So. 2d at ___.
However, even after the circuit court
entered it written revocation order, Brazery did not file a
motion to reconsider challenging the circuit court's reliance
on the probation officer's statements or the sufficiency of
the evidence to support the revocation of his probation on the
had
ground
that
he
Rather,
he
raises
not
these
maintained
arguments
suitable
for
the
employment.
first
time
on
appeal.
Additionally, the main opinion states that the probation
officer's
statements
at
the
beginning
of
the
revocation
hearing "were comparable to reading an indictment before or
during opening statements" and notes that an indictment cannot
be used as evidence against a defendant.
___ So. 2d at ___.
However, this comparison ignores the fundamental difference
between a trial and a revocation hearing.
13
As a general rule,
CR-06-1449
an indictment is not admissible as substantive evidence of the
guilt of the accused.
In contrast, a delinquency report can
be admissible as substantive evidence during a revocation
hearing.
The law states only that the report cannot be the
sole basis for revoking a defendant's probation.
Further,
this is not a case in which the circuit court relied solely on
a report or the fact that the probation officer filed a
report.
Rather, the circuit court relied on the probation
officer's in-court statements.
main
opinion
regarding
the
Therefore, the analogy in the
reading
of
an
indictment
is
unavailing.
For these reasons, any error in revoking the appellant's
probation on the ground that he had committed new offenses was
harmless.
See Rule 45, Ala. R. App. P.
respectfully dissent.
McMillan, J., concurs.
14
Accordingly, I
