         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs September 27, 2005

           STATE OF TENNESSEE v. MICHAEL CARNELL JONES

                     Appeal from the Criminal Court for Hamilton County
                        No. 247545 & 247645 Rebecca Stern, Judge



                    No. E2004-02919-CCA-R3-CD - Filed October 13, 2005


The appellant, Michael Carnell Jones, appeals from the trial court’s revocation of his community
corrections sentence. For the following reasons, we affirm the judgment of the trial court.


        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and ALAN E.
GLENN , JJ., joined.

Ardena J. Garth, District Public Defender and Donna Robinson Miller, Assistant District Public
Defender, for the appellant, Michael Carnell Jones.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Bill Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for
the appellee, State of Tennessee.


                                              OPINION

        The appellant was indicted in January of 2004 by the Hamilton County Grand Jury on two
counts of burglary of a business and two counts of theft of property under $500. The appellant pled
guilty. As a result of the plea agreement, the appellant received a two-year sentence for each
burglary conviction and an eleven month, twenty-nine day sentence for each theft conviction. The
burglary convictions were ordered to run consecutively to each other and concurrently to the theft
convictions, for a total effective sentence of four years. The trial court ordered the appellant to serve
the sentence on intensive probation. The trial court also ordered the appellant to be evaluated by the
CADAS Alcohol and Drug Treatment Center and follow its recommendations for one year.

       On August 16, 2004, the appellant’s probation was revoked for failure to comply with the
conditions of probation. As a result, the appellant was placed on community corrections.
        On September 7, 2004, the trial court entered an “Order for Removal From Community
Corrections Pending Hearing.” The order alleged that the appellant left house arrest several times
without permission. At a hearing held on November 8, 2004, the trial court heard the testimony of
the appellant and Sharon Davis, a community corrections officer. Ms. Davis testified that the
appellant was placed on electronic monitoring in the Community Corrections Program on August
18, 2004. She explained that the electronic monitoring device was checked each day by a supervisor.
Beginning August 20, 2004, over a six-day period, the appellant left his residence and returned nine
times without permission. Ms. Davis specified that the records indicated that the appellant left the
residence three times each day on August 20, 21, and 25. After the appellant left the residence for
the third time on August 25, a monitor called the house and no one answered the telephone.1 After
making a second call, the monitor was informed that the appellant left the house to purchase
cigarettes. The appellant later spoke with the monitor and claimed that he had not left the residence.
According to records, the appellant left the residence once more after being told by the monitor to
remain at home.

       Ms. Davis admitted on cross-examination that she was not the actual supervisor assigned to
monitor the appellant and that the appellant claimed that he was going to work when he left the
residence without permission. However, Ms. Davis received information from the appellant’s
probation officer that indicated that the appellant had not been going to work.

       The appellant testified that he was going to work at the “Davis Home” on Duncan Street,
located approximately forty to forty-five minutes from his home each time he left the residence
without permission. The appellant admitted that he had originally been placed on probation, which
was later revoked. The appellant also admitted that he was only in the community corrections
program for three days before he began breaking the rules.

        At the conclusion of the hearing, the trial court revoked the appellant’s community
corrections sentence and gave the appellant credit for time served in the program. The trial court
determined that:

                 [The appellant] was given this kind of extraordinary chance and you would
         expect him to be perfect on it given what he knows about how things work but he
         wasn’t. On three different occasions he left the arrest house several times, sometimes
         for a few minutes, sometimes for a few hours it appears without permission.

                I just don’t believe - - he has been given every chance and every alternative
         we can think of and I just don’t think he is ever going to comply with the rules. He



         1
          Counsel for the appellant objected to the testimony of Ms. Davis as hearsay. The trial court overruled the
objection, determining that the information was “reliable hearsay” under Tennessee Code Annotated section 40-35-
209(b) because the monitor was “calling his [the appellant’s] home and asking him [one of the other residents] and they
know who he is.”

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       certainly is not going to go from Community Corrections back down to something
       less as a reward for violating.

         The appellant filed a timely notice of appeal. On appeal, he claims that the trial court abused
its discretion in revoking his community corrections sentence.

                                               Analysis

        On appeal, the appellant argues that the trial court erred in revoking his community
corrections sentence because “the record does not contain sufficient admissible evidence to support
revocation” of the sentence. Specifically, the appellant contends that Ms. Davis’ testimony was not
sufficient because she did not actually supervise the appellant during his community corrections
sentence and that her testimony was hearsay. The State argues that the record supports the trial
court’s judgment.

        A trial court may revoke probation and order the imposition of the original sentence upon a
finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310 & -311. After finding a violation of probation and determining that
probation should be revoked, a trial judge can: (1) order the defendant to serve the sentence in
incarceration; (2) cause execution of the judgment as it was originally entered, or, in other words,
begin the probationary sentence anew; or (3) extend the probationary period for up to two (2) years.
See Tenn. Code Ann. §§ 40-35-308(c) & -311(e); State v. Hunter, 1 S.W.3d 643, 647-48 (Tenn.
1999).

        The decision to revoke probation rests within the sound discretion of the trial court. State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation and a
community corrections sentence is subject to an abuse of discretion standard of review, rather than
a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is
shown if the record is devoid of substantial evidence to support the conclusion that a violation of
probation has occurred. Id. The evidence at the revocation hearing need only show that the trial
court exercised a conscientious and intelligent judgment in making its decision. State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). Further, “[i]t is well established that trial courts have
broad discretion in determining the admissibility of evidence, and their rulings will not be reversed
absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996).

       A trial court has statutory authority to admit trustworthy and probative evidence, including
hearsay, for sentencing purposes. Tenn. Code Ann. § 40-35-209(b); State v. Flynn, 675 S.W.2d 494
(Tenn. Crim. App. 1984); State v. Chambless, 682 S.W.2d 227 (Tenn. Crim. App. 1984). “Reliable
hearsay” is admissible in a probation revocation hearing so long as the opposing party has a fair
opportunity to rebut the evidence. Tenn. Code Ann. § 40-35-209(b). The Sentencing Act provides,
however, that no evidence secured in violation of the constitution of the United States or of
Tennessee may be admitted. Tenn. Code Ann. § 40-35-209(b).



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        The Tennessee Constitution, Article I, Section 9, and the United States Constitution, Sixth
Amendment, prohibit proof of an essential element of a crime in a criminal prosecution by the
admission of evidence that violates the right to confront and cross-examine adverse witnesses. State
v. Henderson, 554 S.W.2d 117, 122 (Tenn. 1977); Pointer v. Texas, 380 U.S. 400, 403 (Tenn. 1965).
However, since the issue in a probation revocation proceeding is not the guilt or innocence of the
defendant, the right to confront and cross-examine adverse witnesses is not absolute and may be
relaxed under certain circumstances. Both the Tennessee Supreme Court and the United States
Supreme Court have recognized that “the full panoply of rights due a defendant” in criminal
prosecutions do not apply to parole revocations. See Black v. Romano, 471 U.S. 606, 613 (1985)
(stating that “the flexible, informal nature of the revocation hearing, . . . does not require the full
panoply of procedural safeguards associated with criminal trial”); Bledsoe v. State, 387 S.W.2d 811,
814 (1965) (stating that “the defendant [in a probation revocation hearing] is not entitled to the same
guarantees as a person who is not convicted and is merely on trial upon an accusation of crime”).
However, since a probationer’s conditional freedom from incarceration is at risk, he must be afforded
due process in the revocation proceeding.

       The United States Supreme Court set forth the minimum requirements of due process in
probation proceedings in Gagnon v. Scarpelli, 411 U.S. 778 (1973). Those requirements include a
conditional right to confront and cross-examine adverse witnesses. The Court stated:

       [There must be] preliminary and final revocation hearings. At the preliminary
       hearing, a probationer or parolee is entitled to notice of the alleged violations of
       probation or parole, an opportunity to appear and to present evidence in his own
       behalf, a conditional right to confront adverse witnesses, an independent decision-
       maker, and a written report of the hearing. Morrissey v. Brewer, 408 U.S. 471, 487,
       92 S. Ct. 2593, 2603, 33 L. Ed. 2d 484 (1972). The final hearing is a less summary
       one because the decision under consideration is the ultimate decision to revoke rather
       than a mere determination of probable cause, but the “minimum requirements of due
       process” include very similar elements:

               (a) written notice of the claimed violations of [probation or] parole;
               (b) disclosure to the [probationer or] parolee of evidence against him;
               (c) opportunity to be heard in person and to present witnesses and
               documentary evidence; (d) the right to confront and cross-examine
               adverse witnesses (unless the hearing officer specifically finds good
               cause for not allowing confrontation); (e) a ‘neutral and detached’
               hearing body such as a traditional parole board, members of which
               need not be judicial officers or lawyers; and (f) a written statement by
               the fact finders as to the evidence relied on and reasons for revoking
               [probation or] parole.

Gagnon v. Scarpelli, 411 U.S. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). This
Court has also held that a defendant may not be subjected to a revocation upon evidence he had no


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opportunity to hear, test by cross-examination or refute by contrary evidence. See Stamps v. State,
614 S.W.2d 71, 74 (Tenn. Crim. App. 1980). The guarantee to confront and cross-examine adverse
witnesses clearly establishes that some right to confrontation exists in revocation hearings, but the
qualifying “good cause” language reflects the flexibility that marks probation revocation proceedings
and suggests that the confrontation requirement will be relaxed in certain circumstances. See State
v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993).

        The record in the case herein shows that the proof in this case did not meet the minimum
confrontation requirements of Gagnon. There was no specific finding by the trial court of “good
cause” that would justify the denial of the appellant’s right to confront and cross-examine an adverse
witness, the monitor who supervised his house arrest. The appellant’s objection to the admission
of the testimony was denied by the trial court without comment save for the finding that the trial
court found the testimony to be reliable hearsay. We agree with the trial court’s assessment of Ms.
Davis’s testimony regarding the telephone calls placed to the residence in order to ascertain the
whereabouts of the appellant as hearsay. See Tenn. R. Evid. 801(c) (defining hearsay as “a
statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted”). However, we determine that in addition to the
failure of the trial court to make a specific finding of good cause, the record would not support any
such finding. The record is silent as to why the monitor who supervised the appellant was not called
as a witness. Therefore, we determine that the trial court committed error because it failed to include
a finding of good cause such that would have allowed the testimony despite the appellant’s inability
to cross-examine the declarant. Despite the absence of a finding of good cause, and the absence of
proof on which such a finding could be based, the evidence establishes that the testimony was
reliable. The basis for the revocation of probation were the appellant’s numerous trips outside the
residence without permission. The appellant himself confirmed that he left the residence multiple
times and that he began violating the rules after being in the program for merely three days. Thus,
the appellant never disputed the accuracy of Ms. Davis’ testimony. He merely maintained that he
should not be held culpable for his actions because his reasons for leaving the residence were
legitimate. Despite the error of the trial court in admitting the testimony in the absence of a finding
of good cause, we cannot conclude that the trial court abused its discretion in revoking the
appellant’s community corrections sentence.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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