           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE

                            APRIL 1997 SESSION
                                                         FILED
                                                            June 24, 1997

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      )    C.C.A. No. 03C01-9607-CC-00273
      Appellee,                       )
                                      )    ANDERSON COUNTY
VS.                                   )
                                      )    HON. JAMES B. SCOTT, JR.
                                      )    JUDGE
JAMANN T. BOOKER,                     )
                                      )    (Probation Revocation)
      Appellant.                      )



FOR THE APPELLANT:                         FOR THE APPELLEE:

KENNETH F. IRVINE, JR.                            JOHN KNOX WALKUP
606 W. Main Street, Ste. 350               Attorney General & Reporter
P.O. Box 84
Knoxville, Tennessee 37901-0084            SANDY R. COPOUS
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, Tennessee 37243-0493

                                           JAMES N. RAMSEY
                                           District Attorney General

                                           JAN HICKS
                                           Assistant District Attorney General
                                           127 Anderson County Courthouse
                                           100 North Main Street
                                           Clinton, TN 37716




OPINION FILED: _________________



AFFIRMED



JOE G. RILEY,
JUDGE


                                    OPINION
      The defendant, Jamann T. Booker, appeals the trial court’s decision to revoke

his probation. Defendant pled guilty to five counts of the sale of cocaine and

received an effective sentence of eight years in the Tennessee Department of

Correction. After serving a portion of his sentence and completing “boot camp,” he

was placed on intensive supervised probation. While on probation, defendant was

arrested on another two counts of selling cocaine. Due to this arrest, a probation

violation warrant was issued. A probation revocation hearing was subsequently held

wherein the trial court revoked defendant’s probation.

       After filing timely notice of appeal, defendant presents two issues for our

review: 1) whether testimony by police officers regarding statements allegedly made

by the confidential informant constituted unreliable hearsay and were, therefore,

inadmissible; and 2) whether the defendant’s constitutional right to confrontation was

violated by allowing police officers to testify as to remarks made by a confidential

informant which were simultaneously being monitored by electronic transmitter.

       We AFFIRM the judgment of the trial court.



                                        FACTS

       The facts involved in this probation revocation appeal stem from an

undercover drug operation conducted by the Oak Ridge Police Department (ORPD).

The ORPD employed a confidential informant to make drug purchases. On two

separate occasions, December 12, 1995, and January 24, 1996, the confidential

informant came into contact with the defendant. Each transaction was monitored by

police officers by personal observation and/or through electronic transmitter or wire.

       The December 12 transaction was supervised by Sergeant Mike Uher of the

ORPD. He stated that he met with the confidential informant, placed an electronic

monitoring device on him and gave him $300 for drug purchases. After searching

him and his vehicle for any contraband, he sent the informant to purchase crack

cocaine.


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       Sgt.Uher was in another vehicle which was equipped with a receiver and

positioned atop a hill so that he could survey the area. He watched the defendant

and the informant meet and pull their cars up next to each other. He then heard

them agree to drive around the block which he believed to be standard language for

initiating a drug deal. After identifying the defendant’s and the informant’s voice, he

summarized the conversation he heard through the electronic monitoring device.

       The informant indicated he wished to purchase $200 worth of cocaine.

Defendant stated he wanted to drive around the block. Sgt. Uher observed the

vehicles drive around the block. The defendant subsequently exited his vehicle and

entered the informant’s vehicle where the transaction took place. Sgt. Uher stated

he then heard the informant say “[those] were large pieces and that he wanted $200

worth, could he come back and get more an additional time ...”

       The defendant stated that he wanted to be dropped off at his vehicle after the

transaction. The informant later met Sgt. Uher at a pre-arranged location and turned

over the drugs.

       Sgt. Uher stated that the January 24 transaction was set up similarly to the

December 12 transaction; however, they utilized an undercover vehicle instead of the

informant’s personal vehicle. Officer Michael Jackson of the Athens Police

Department was the driver. Sgt. Uher testified regarding the transmissions he heard

over the wire on this occasion. He stated the informant entered the defendant’s

vehicle and requested $100 worth of crack cocaine. The informant indicated “that

that looked good.” The extent of defendant’s response was “yes,” “o-kay,” “no,” and

“my car.”

       Because he was in the car with the informant, Officer Jackson personally

observed the informant enter the defendant’s vehicle and sit in the back seat behind

the defendant. Although Officer Jackson did not actually see the drugs exchanged,

the vehicles were parked in such close proximity that he saw hand movements that

were consistent with a money and drug exchange. The drugs were later turned over

to Sgt. Uher.


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       Carl Smith, a Tennessee Bureau of Investigation (TBI) chemist, analyzed the

substances given to Sgt. Uher from the above transactions. He testified that the

substances tested positive for cocaine base or “crack” cocaine.

       The defendant did not offer any proof at the hearing.



                                   HEARSAY ISSUE



       The defendant argues that the police officer’s testimony regarding statements

allegedly made by the confidential informant constituted unreliable hearsay. In

effect, the defendant claims that Sgt. Uher’s testimony summarizing the conversation

overheard while monitoring the alleged drug transaction requires the testimony of the

confidential informant. We disagree.

       Hearsay is 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.

Tenn. R. Evid. 801(c). Hearsay evidence, however, is admissible in a probation

revocation hearing so long as it is not shown to be so unreliable as to violate due

process. State v. Wade, 863 S.W.2d 406, 409-10 (Tenn. 1993).

       After a thorough review of the record, we find that the statements made by the

confidential informant and repeated by Sgt. Uher were not offered to prove the truth

of the matters asserted. They were clearly made for the purpose of providing the

defendant, a willing drug dealer, with a customer and merely depicted one side of a

drug transaction. See State v. Martin, ___ S.W.2d ___ (Tenn. 1997); State v. Jones,

598 S.W.2d 209 (Tenn. 1980); State v. George Harless, C.C.A. No. 03C01-9203-

CR-00105 (Tenn. Crim. App. filed August 11, 1993, at Knoxville).

       Even if it was hearsay, it was reliable. Furthermore, it was harmless in light of

the other testimony of the officers which clearly shows defendant’s participation in

the drug transaction. Tenn. R. App. P. 36(b). The evidence of the violation was

sufficient, even without the informant’s statements, to establish that the trial judge

exercised conscientious judgment. State v. Leach, 914 S.W.2d 104 (Tenn. Crim.


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App. 1995). The state is not required to prove the violation beyond a reasonable

doubt. Id. This issue is without merit.



                RIGHT TO CONFRONT AN ADVERSE WITNESS



       Since the only actual eyewitness to the alleged drug sales was the confidential

informant who was not called as a witness, the defendant contends admission of the

officer’s testimony violated his constitutional right to confront an adverse witness.

       It should be noted at the outset that while closely related to evidentiary issues,

confrontation issues are analyzed differently. Both the United States and the

Tennessee Constitutions afford protections which enable a defendant to confront an

adverse witness. U.S. Const. amend. VI; Tenn. Const. art. I, §9. Generally, a

probationer is entitled to the same protection unless the trial judge makes a specific

finding of good cause for denying the right. Wade, 863 S.W.2d at 409.

       Confrontation Clause analysis does not apply to the proof presented in this

case. Martin, ___ S.W.2d at ___; Jones, 598 S.W.2d at 223. It is important to stress

that Sgt. Uher and Officer Jackson testified regarding what they visually and audibly

perceived in both drug transactions. They witnessed the confidential informant and

the defendant engage in activities they believed to be the sale of drugs. They

observed the informant enter defendant’s car and return with what was positively

identified as “crack” cocaine. The testimony via the electronic wire pertaining to the

comments made by the confidential informant was not substantive evidence. It, in

effect, was not a “witness against” the defendant and raises no Confrontation

Clause concerns. Tennessee v. Street, 471 U.S. 407, 414 (1985).

       After the defense closing argument emphasizing the right to confront, the trial

court stated:

                “I have unrefuted proof here that the same activity
                that [defendant] was sent to the penitentiary on,
                and I hope frankly that [defendant] can maybe turn his
                conduct in such a way that he wouldn’t do this, but there’s
                so much money involved in drugs, and this appears
                that even though there may have been a right of

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              confrontation with the confidential informant, that this
              Court allowed that information in just simply to
              corroborate what I had in the way of direct proof on a
              probation hearing . . . “

The trial court clearly viewed the questionable evidence as merely corrobative of the

direct proof implicating the defendant. The record supports the conclusions of the

trial court. If there was error, it was harmless. Tenn. R. App. P. 36(b). This issue is

without merit.



       The judgment of the trial court is AFFIRMED.




                                          _____________________________
                                          JOE G. RILEY, JUDGE


CONCUR:




___________________________
JERRY L. SMITH, JUDGE




____________________________
CHRIS CRAFT, SPECIAL JUDGE




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