State v. Doris Debuhr ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1998 SESSION
FILED
November 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9804-CC-00117
Appellee, )
) Madison County
v. )
) Honorable J. Franklin Murchison, Judge
DORIS MARIE DEBUHR, )
) (Probation Revocation)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
C. Michael Robbins John Knox Walkup
46 North Third Street Attorney General & Reporter
Suite 719 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0493
(On Appeal)
Douglas D. Himes
George Morton Googe Assistant Attorney General
District Public Defender 425 Fifth Avenue, North
Daniel J. Taylor Nashville, TN 37234-0493
Assistant Public Defender
227 West Baltimore Street James G. Woodall
Jackson, TN 38301 District Attorney General
(At Trial) 225 Martin Luther King Drive
Jackson, TN 38302-2825
Donald H. Allen
Assistant District Attorney General
225 Martin Luther King Drive
Jackson, TN 38302-2825
OPINION FILED: _______________________________
AFFIRMED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Doris Marie Debuhr, who will be herein referred to as the defendant,
appeals as of right from a judgment of the Madison County Circuit Court revoking her
probation. The defendant presents two issues for appellate review: (1) the trial court erred
by receiving exhibit 1 at the probation revocation hearing, and (2) the trial court erred by
ordering the defendant to be incarcerated after finding the defendant was in violation of
conditions of her probation. After a review of the record, briefs of the parties, and
appropriate law, the trial court’s judgment is affirmed.
FACTUAL BACKGROUND
On May 26, 1995, the defendant was found guilty by a Madison County jury of theft
of property over $1,000. After a sentencing hearing on July 11, 1995, the trial court
sentenced the defendant to a term of four years in the Department of Correction with the
provision she be placed on immediate probation for a period of four years. The trial court
ordered the defendant to pay $50 per month towards court costs and $1,727.00 in
restitution to be paid in full. She was further ordered to obey all the rules of supervised
probation. Also, the trial court permitted supervision to be transferred to Shelby County,
the home of the defendant. The record reflects a motion for a new trial was filed, but the
motion had not been heard as of the date of the probation revocation hearing.
Two probation violation reports were filed in this case. First, on October 15, 1996,
a probation violation report was filed by Ms. Vicki Worsham, probation officer, alleging the
defendant failed to make a full and truthful report and failed to pay court costs and
restitution. On November 13, 1996, Ms. Worsham filed a second probation violation report,
alleging the defendant had failed to sign necessary probation papers to be supervised in
the State of Wisconsin, and thus she was rejected by the State of Wisconsin for transfer
and supervision. Also, the defendant failed to pay supervisory fees of $45 a month, court
costs, and restitution. On November 12, 1996, the trial court issued an arrest warrant for
violation of probation for the defendant. The defendant was arrested in Wisconsin, in
2
December, 1997, and returned to Tennessee for the revocation hearing.
PROBATION REVOCATION HEARING
Ms. Vicki Worsham, probation officer for the Department of Correction, testified that
the defendant’s supervision was assigned to her on July 12, 1995. Ms. Worsham sent a
letter to the defendant at 1902 Louisiana Street in Memphis, requesting the defendant to
contact Ms. Worsham to set up an appointment to be signed up on probation. The letter
was returned to Ms. Worsham. Ms. Worsham called a phone number listed on the
presentence report, and given by the defendant, which was disconnected. Ms. Worsham
sent a second letter to the defendant at 4440 Boxway Drive in Memphis. This letter was
returned “refused at this address.” Ms. Worsham sent a third letter to the defendant at the
Louisiana Street address and the defendant responded to this letter.
The defendant called Ms. Worsham on August 10, 1995 and advised Ms. Worsham
that she was now living in Rapids, Wisconsin with her sister. Ms. Worsham requested that
the defendant return to Jackson, Tennessee to sign up for probation and her supervision
would then be transferred to Wisconsin. The defendant indicated she would return to
Tennessee, but she never did. Ms. Worsham sent the necessary probation forms to the
probation office in W isconsin requesting that office to sign up the defendant in September,
1995.
On October 23, 1995, Ms. Worsham was contacted by Mr. Edward Haggard,
probation officer in Salem, Wisconsin, and advised the defendant had refused to sign any
probation papers and the State of Wisconsin was rejecting the transfer of probation
supervision. Ms. Worsham testified she obtained an arrest warrant for the defendant on
November 12, 1996 for failure to sign up for probation, non-payment of supervisory fees,
and failure to pay court costs and restitution. Ms. Worsham testified she had never met
the defendant and her only contact with the defendant was by phone. As of the date of the
hearing, Ms. Worsham could not verify if any restitution or court costs had been paid by
3
the defendant.
Mrs. Jo Coleman Adams, testifying for the defendant, advised the trial court she had
never met the defendant until the day of the revocation hearing. Mr. Martin Nabholz, a
member of Mrs. Adams’s prayer group, informed Mrs. Adams of the defendant’s problems.
Mrs. Adams contacted the defendant’s previous employer, Bob Adams, at Jitney Premier
in Memphis, and he had good things to say about the defendant. The defendant’s minister
also had good things to say about the defendant. Mrs. Adams advised the trial court she
had paid $2,147.50, on the date of the hearing, in behalf of the defendant for court costs
and restitution. Mrs. Adams obtained contributions for this amount from Mr. Nabholz, the
defendant’s sons and sister, and other members of her prayer group. Mrs. Adams testified
although she had not met the defendant, she and the defendant had talked over the phone
a number of times.
Mrs. Pat Isbell testified she first met the defendant in 1991 when she lived across
the street from her in Jackson. Mrs. Isbell always considered the defendant as a very nice
person. The defendant experienced a great deal of stress when financial problems
developed during installation of a swimming pool at her home. Mrs. Isbell had heard
rumors that the defendant had been convicted of theft from her employer. To the best of
Mrs. Isbell’s knowledge, the defendant moved to and began working in Memphis. About
the theft charge, the defendant never told Mrs. Isbell she had ever broken the law.
Mr. Martin Nabholz, a resident of Memphis, testified he had known the defendant
for 25 years. The defendant and Mr. Nabholz had been friends for many years. Mr.
Nabholz assisted the defendant financially when she was unemployed; however, the
defendant was usually employed.
The defendant did not testify at this hearing. Based on the evidence, the trial court
found the defendant had violated the conditions of probation and ordered the defendant
to serve the sentence imposed.
4
LEGAL ANALYSIS
The defendant contends exhibit 1, the affidavit of Edward Haggard, probation officer
for the State of Wisconsin, was hearsay evidence and the defendant had no opportunity
to rebut the affidavit or to investigate the matter. Thus, the defendant was denied due
process of law in presenting a defense. The State counters that the defendant has waived
this issue by failing to include the affidavit in the record on appeal pursuant to Tennessee
Rules of Appellate Procedure 24(b).
When an accused seeks appellate review of an issue in this court, it is the duty of
the accused to prepare a record which conveys a fair, accurate, and complete account of
what transpired with respect to the issues which form the basis of the appeal. Tenn. R.
App. P. 24(b); State v. Bennett, 798 S.W.2d 783 (Tenn. Crim. App. 1990), cert. denied,
500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991); State v. Roberts, 755 S.W.2d 833,
836 (Tenn. Crim. App.), per. app. denied (Tenn. 1988).
This court is prohibited from considering the exhibits appended to various motions
and supplements to motions that are in the “technical record.” Before an exhibit or an
attachment to a pleading may be considered by this court, it must have been (a) received
into evidence, (b) marked by the trial judge, clerk or court reporter as having been received
into evidence as an exhibit, and (c) included in the transcript transmitted to this court.
While Rule 24, Tenn. R. App. P., abolishes the distinction between what was formerly
referred to as the “bill of exceptions” and the “technical record,” creating what is now called
the “record on appeal,” the foregoing rule governing exhibits was not abolished. State v.
Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987).
When the record is incomplete and does not contain the document relevant to the
issue, this court is precluded from considering the issue. State v. Locke, 771 S.W.2d 132,
138 (Tenn. Crim. App. 1988), per. app. denied (Tenn. 1989). Therefore, we must presume
the ruling of the trial court relative to the admissibility of the affidavit of Edward Haggard,
5
Wisconsin probation officer, was correct. Bennett, 798 S.W.2d at 790; State v. Ballard,
855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Smith, 891 S.W.2d 922, 932 (Tenn. Crim.
App.), per. app. denied (Tenn. 1994). We find the issue as to the admissibility of the
affidavit of Edward Haggard has been waived.
Next, the defendant contends the trial court erred by not considering an alternative
sentence in lieu of incarceration when revoking her probation. The State counters there
were ample grounds for the court to revoke the defendant’s probation. At the conclusion
of the revocation hearing, the trial court found:
Ms. Debuhr, since July of 1995 up until now -- until she was
incarcerated has not done one single thing towards being on
probation. She has even refused to come in and sign in on
probation. She has not paid one nickel on her restitution. She
has not paid one nickel on her Court costs or one nickel on her
probation fees. She has done absolutely nothing. . . .
We only got Ms. Debuhr’s attention when we put her in jail,
which is some two and a half years after she was put on
probation. She just abandoned us. She paid absolutely no
attention to the Court -- to the law. She treated us with total
disrespect. That’s what she has continued to do. She’s -- her
probation -- she has violated her probation for those reasons.
She just -- I don’t know how to put it, except for she never has
been on probation -- during all of these years. She has to be
revoked.
A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that a person has violated the
conditions of probation. Tenn. Code Ann. § 40-35-311. The judgment of the trial court will
not be disturbed on appeal unless it appears that there has been an abuse of discretion.
For an appellate court to be warranted in finding an abuse of discretion in a probation
revocation case, it must be established that the record contains no substantial evidence
to support the conclusion of the trial judge that a violation of the conditions of probation has
occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
The evidence at the revocation hearing need only show that the trial court exercised
a conscientious and intelligent judgment in making its decision to revoke probation. State
v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).
6
The defendant concedes that the record demonstrates technical violations of the
terms and conditions of her probation. However, due to the evidence presented at the
revocation hearing, the defendant contends she should have been considered for
alternative relief, such as a “second chance” for probation, in that the evidence
preponderates against ordering the defendant into incarceration as a sanction.
When there is a challenge to the manner of the service of a sentence, this court has
a duty to conduct a de novo review of the sentence with a presumption the determination
made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the
burden is on the defendant to show the impropriety of the sentence.
At this revocation hearing, the defendant presented some valid reasons for the trial
court to consider some alternative sentence. The defendant would be supported by friends
and a prayer group, including total strangers who paid her court costs and restitution on
the day of the revocation hearing, and her prospects of employment were great.
Apparently, the defendant was 60 years old and the offense of theft was her only violation
of the law. However, we must balance this evidence with the reasons as to why the trial
court believed it necessary to revoke the defendant’s probation. The defendant was
placed on probation on July 11, 1995 for a period of four years. The defendant was
required to comply with the standard conditions of probation and the special conditions of
restitution and payment of court costs and supervisory fees. For some unexplained and
unsatisfactory reason, the defendant would not report to the probation office in Jackson
to “sign up for probation.” After three attempts to contact the defendant, the defendant
called Ms. Vicki Worsham, probation officer, and then the State discovered the defendant
had moved to Wisconsin, apparently without the knowledge and permission of the
probation office. The State attempted to work with the defendant by sending requests to
Wisconsin, through the Interstate Compact Agreement, for supervision of the defendant’s
7
probation in that state. The defendant refused to cooperate with the Wisconsin authorities.
There seems to be some inference in the evidence the defendant would not cooperate,
since she believed her conviction was unjust.
It is obvious the trial court, in its ruling, was frustrated with the defendant’s total
disregard of the conditions of probation. Therefore, based on the evidence in this record,
we cannot find the trial court abused its discretion in ordering the defendant to serve the
sentence imposed.
The trial court is affirmed.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
8