Summary
finding non-hearsay evidence of officer's direct testimony sufficiently corroborated the hearsay evidence presented
Summary of this case from Gallardo v. StateOpinion
No. 1D21-0869.
02-01-2023
Darreyen Mathis SIMS, Appellant, v. STATE of Florida, Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, and Rudolph C. "Rusty" Shepard, Jr. , Panama City, for Appellant. Ashley Moody , Attorney General, and Darcy O. Townsend , Assistant Attorney General, Tallahassee, for Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, and Rudolph C. "Rusty" Shepard, Jr. , Panama City, for Appellant.
Ashley Moody , Attorney General, and Darcy O. Townsend , Assistant Attorney General, Tallahassee, for Appellee.
Ray, J.
Darreyen Mathis Sims challenges the revocation of his probation for committing a battery on his ex-girlfriend and burglarizing her apartment. He argues that the trial court erred in revoking his probation because the State failed to present any non-hearsay evidence linking Sims to the new crimes. But non-hearsay evidence does not have to independently establish that Sims committed the offenses. The hearsay statement of his ex-girlfriend, combined with non-hearsay evidence corroborating her statement, was enough proof to sustain the probation revocation.
I
At Sims' violation of probation (VOP) hearing, the State presented one witness. Deputy Steve Bachelor testified that when he responded to the scene of the reported burglary, the victim was visibly shaken. She was crying, her makeup was smeared, and her hair was in disarray. She explained that she and Sims had dated on and off for four years, but they had broken up. He had been texting and calling her all night from blocked numbers to ask whom she was currently dating. She ignored the calls and messages. As she was lying in bed, she heard someone at her door. She knew it was Sims and did not answer. Then a crash erupted from her backdoor. Before she could get out of bed to lock her bedroom door, Sims entered the room. He grabbed her by her hair and dragged her down the stairs. She broke free and ran outside to a neighbor's yard. Sims fled her home and got into a blue vehicle, which drove away.
The deputy's investigation of the victim's home revealed evidence that corroborated her story. Screens had been removed from multiple windows, presumably to gain entry to her home. The backdoor and the doorframe were damaged, with pieces of the door and the locking mechanism scattered six to eight feet away. The damage pointed to the door being kicked in. The deputy also found hair wraps and fake eyelashes on the stairs. The victim told the deputy that she had been wearing the hair wraps and eyelashes during the offenses. The victim's face was swollen. The deputy took pictures of the damaged door, the hair wraps and eyelashes on the stairs, the window screens, and the victim's swollen face. Those pictures were introduced into evidence during the VOP hearing.
The deputy also testified that during his investigation, Sims continued to call the victim repeatedly. At one point, he took the phone and told Sims to stop calling. Sims kept calling anyway. The victim's neighbor told the deputy that she had heard yelling and banging from inside the victim's home before seeing an African American man run outside and get into a blue vehicle.
Based on this evidence, the trial court concluded the State had met its burden of proving a violation of probation. The court found that while probation could not be revoked based on hearsay evidence alone, the hearsay evidence had been corroborated by the deputy's personal observations and photographs, as well as the phone calls from Sims after the offenses. The court revoked Sims' probation and sentenced him to ten years in prison followed by five years on probation. This timely appeal followed.
II
A
"Probation is a matter of grace, and not right, and a trial court has broad discretion over probation." David v. State, 75 So.3d 386, 387 (Fla. 1st DCA 2011). A probationary sentence is imposed following a finding of guilt, whether by plea or trial, after the defendant has enjoyed the full panoply of constitutional protections afforded to one accused of a crime. Clarington v. State, 314 So.3d 495, 502 (Fla. 3d DCA 2020). If the trial court believes that the defendant can be rehabilitated while remaining at liberty under supervision, the court can exercise its discretion to impose a probationary sentence rather than sentence the defendant to prison. See Delee v. State, 816 So.2d 677, 678 (Fla. 3d DCA 2002).
Trial courts have "equally broad discretion" when deciding whether to revoke the privilege of probation. Lawson v. State, 969 So.2d 222, 229 (Fla. 2007). When the State alleges a violation of probation, the probationer is not in the same position that he occupied prior to his conviction. Peraza v. Bradshaw, 966 So.2d 504, 505 (Fla. 4th DCA 2007). Having already been afforded full due process rights in the original criminal proceeding, the probationer is not entitled to the same range of rights during a revocation proceeding. Clarington, 314 So. 3d at 503. As a result, "[a] probation revocation hearing is ... informal ... [and] the strict rules of evidence can be deviated from, and the admission of hearsay is not error." Mangini v. State, 302 So.3d 1058, 1059 (Fla. 5th DCA 2020) (quoting Cuciak v. State, 410 So.2d 916, 918 (Fla. 1982)). And rather than being required to prove its case beyond a reasonable doubt, the State need only prove a violation of probation by a preponderance of the evidence. See Morris v. State, 727 So.2d 975, 977 (Fla. 5th DCA 1999).
B
Despite the procedurally relaxed nature of a VOP hearing, there are limits to a trial court's discretion to revoke probation. Whether the alleged violation is the failure to comply with a technical condition of probation or the commission of a new law offense, probation may not be revoked based on hearsay alone. See State v. Queior, 191 So.3d 388, 390 (Fla. 2016); Hodges v. State, 262 So.3d 842, 845 (Fla. 1st DCA 2018).
Sims takes the limitation on hearsay evidence a step further, arguing that this court's decision in Melton v. State, 65 So.3d 96 (Fla. 1st DCA 2011), required the State to introduce non-hearsay evidence directly linking Sims to the new crimes. But as we explain below, Melton is distinguishable, and the principle of law Sims pulls from Melton conflicts with Florida Supreme Court precedent when not considered in its appropriate context.
In Russell v. State, 982 So.2d 642 (Fla. 2008), the supreme court considered "whether a trial court may find that a violation of probation for an alleged battery has been proven by a preponderance of the evidence through a hearsay statement of the victim, which would be inadmissible at trial, and non-hearsay testimony of direct observation of victim injury and attendant circumstances." Id. at 646. There, the State alleged that the defendant violated his probation by committing a battery on his pregnant girlfriend. Russell v. State, 920 So.2d 683, 683 (Fla. 5th DCA 2006). The victim did not testify at the VOP hearing but the officer who responded to her call recounted her statement that the defendant had grabbed her hair and struck her neck. Id. at 684. The officer also testified as to the victim's nervous and frightened demeanor while she reported the crime, and the mark the officer saw on the back of her neck. Id. The Fifth District concluded the officer's firsthand testimony about the victim's injury was enough to corroborate the victim's hearsay statements about the battery. Id.
The officer also testified that when he spoke with the defendant, the defendant said that he "doesn't hit [the victim], he just roughs her up." Id. The Fifth District discounted the admission as exculpatory and not probative. Id. at 684 n.1.
The Fifth District's holding conflicted with holdings in factually similar cases from Florida's Second and Fourth District Courts of Appeal. Russell, 982 So. 2d at 643 (citing Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004); Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003); and Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993)). In each of those cases, the district court reversed the revocation of probation based on the commission of a battery where the victim's hearsay statements were corroborated by non-hearsay evidence of the victim's injury or demeanor, but there was no non-hearsay evidence directly linking the probationer to the crime. Id. at 647.
In resolving the conflict, the supreme court emphasized the trial court's broad discretion to revoke probation, explaining that "[t]rial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence." Id. at 646 (quoting State v. Carter, 835 So.2d 259, 261 (Fla. 2002)). Applying these principles, the supreme court observed that in Santiago, Colwell, and Colina, the Second and Fourth Districts had required the State to establish "a direct nexus between the probationer and the alleged battery," with non-hearsay evidence "independently establish[ing] that the probationer committed the battery." Id. at 647. The supreme court disagreed with such a requirement and explained:
Corroboration of every aspect should not be required in order to establish that the probationer committed a battery for the purpose of revoking probation. On the other hand, the trial court must examine the facts and circumstances of each individual case to determine whether a particular violation is willful and is supported by greater weight of the evidence. Thus, whether non-hearsay evidence, including direct testimony of an observation of victim injury, is sufficient to support a hearsay allegation of battery is dependent upon
the unique facts and circumstances of each case. Consequently, the trial court must assess the credibility of the particular witnesses, the reliability of the available evidence, and the totality of the evidence under the circumstances in each individual case.
Id. Based on this reasoning, the supreme court approved the Fifth District's decision and disapproved of Santiago, Colwell, and Colina to the extent that they conflicted with its decision. Id. at 648.
In short, rather than demanding non-hearsay evidence such as live testimony from a victim or other eyewitness to directly connect the probationer to the new offense, the supreme court rejected a per se requirement that non-hearsay evidence corroborate each element of a new law offense. How much weight to assign the hearsay and non-hearsay evidence is for the trial court to decide case-by-case. Most of the district courts of appeal have since applied this aspect of Russell's holding. See Rodgers v. State, 171 So.3d 236, 238-39 (Fla. 1st DCA 2015) (relying on Russell to affirm the revocation of probation based on the commission of new offenses and noting that "[the] circumstantial non-hearsay evidence, by itself, does not prove Rodgers committed the offenses. But it does not have to. It need only support the hearsay evidence by providing other evidence of Rodgers' misconduct, which it does" (internal citations omitted)); Nugent v. State, 45 So.3d 528, 531 (Fla. 4th DCA 2010) ("The [supreme] court did not adopt our court's requirement that the defendant's identity as the batterer required some non-hearsay proof.... The essential holding of Russell remains that each case must be judged by its unique facts and circumstances but that corroborating non-hearsay evidence of each element of the battery used to revoke probation is not required."); Thompson v. State, 994 So.2d 468, 471 (Fla. 3d DCA 2008) ("As Russell instructs, non-hearsay evidence need not directly link the probationer to the alleged violation. Rather, the non-hearsay evidence should be sufficient to support a hearsay allegation." (internal citations omitted)); Kalmbach v. State, 988 So.2d 1279, 1279-80 (Fla. 5th DCA 2008) (concluding that live testimony sufficiently corroborated the victim's hearsay statement about an aggravated domestic assault even though the witness did not see the defendant threaten the victim because "the non-hearsay evidence does not have to independently establish the probation violation; it need only support the hearsay evidence" (citing Russell, 982 So. 2d at 646)).
In Nugent, the Fourth District rejected the defendant's argument that Russell was distinguishable because of the defendant's admissions in that case, concluding that the admissions were not the basis for the supreme court's decision. 45 So. 3d at 531. We agree.
III
The supreme court's decision in Russell compels affirmance in this case. Deputy Bachelor testified to the victim's hearsay statements that after Sims had called and texted her all night, he broke into her home and dragged her downstairs by her hair. He also testified to his personal observations that corroborated the victim's statements. Deputy Bachelor presented pictures and testimony depicting the removal of the window screens, the damage to the backdoor, the victim's swollen face, and the fake eyelashes and hair wraps left behind on the stairs. The victim's statement was also corroborated by Deputy Bachelor's description of her shaken demeanor and disheveled appearance, as well as his testimony about Sims' repeated phone calls during his investigation. While the State presented no non-hearsay evidence directly connecting Sims to the offenses, no such evidence was required. Rather, the non-hearsay evidence—the deputy's pictures and testimony—was sufficient to support a violation of probation by corroborating other aspects of the victim's statement. The trial court thus properly exercised its discretion in assessing the reliability, credibility, and totality of this evidence to determine that the State proved the violation of Sims' probation by a preponderance of evidence.
Before closing, we address Melton v. State, which this court decided after Russell. As we mentioned earlier, Sims contends Melton controls here. There, we said that
where the state seeks to revoke probation based on ... the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense.
65 So. 3d at 97. Sims argues that the State's evidence failed to meet this standard because the only evidence "linking" Sims to the offenses was Deputy Bachelor's hearsay testimony recounting the victim's statement that Sims was the perpetrator.
But Melton is a very different case. In relevant part, Melton appealed the revocation of probation for possession of drugs. Id. As conceded by the State, its evidence was based entirely on hearsay and was thus insufficient to revoke Melton's probation on this claim alone. Id. We observed that "[t]he female probation officer who administered the drug test did not testify at the hearing, Melton denied smoking marijuana while on probation, and the probation officer who did appear at the hearing testified that he had no personal knowledge of the result of the drug test." Id.
Considered in its appropriate context, the holding in Melton boils down to the unremarkable principle that hearsay evidence alone is legally insufficient to sustain a probation revocation. And as we have already explained, the instant case does not present that problem.
To the extent that Sims is arguing that Melton establishes a per se rule that the State must always present independent, non-hearsay evidence establishing the identity of the probationer as the perpetrator of a new law offense, such a rule would conflict with the holding in Russell. And Russell would control.
AFFIRMED.
M.K. Thomas and Tanenbaum, JJ., concur.