State of Tennessee v. Darren A. Dewalt ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 6, 2002
STATE OF TENNESSEE v. DARREN A. DEWALT
Direct Appeal from the Criminal Court for Shelby County
No. W98-00077 James C. Beasley, Jr., Judge
No. W2001-02778-CCA-R3-CD - Filed December 9, 2002
Defendant, Darren A. Dewalt, appeals as of right from the trial court's order revoking his probation
and reinstating his original sentence to be served in the Shelby County Correction Center. Defendant
contends that the trial court erred by revoking his probation based upon an unidentified and
unsubstantiated laboratory report indicating that Defendant had used drugs in violation of his
probation. Based upon a review of the entire record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, and JOHN
EVERETT WILLIAMS, JJ., joined.
AC Wharton, Jr., Shelby County Public Defender; Garland Erguden, Assistant Public Defender;
Phyllis Aluko, Assistant Public Defender; and Marty McAfee, Assistant Public Defender, Memphis,
Tennessee, for the appellant, Darren A. Dewalt.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William L. Gibbons, District Attorney General; Karen Cook, Assistant District Attorney General;
Scott Gordon, Assistant District Attorney General; and Kevin Rardin, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On February 4, 1998, Defendant pled guilty to aggravated burglary, a Class C felony. He was
sentenced as a Range I offender to three years, fined $500.00, and placed on probation for the
duration of his sentence. As special conditions of his probation, Defendant agreed to pay restitution
to the victim, acquire his G.E.D., perform 150 hours of community service, obtain employment, and
report daily to the Day Reporting Center until he found employment. In addition, Defendant agreed
to obey all laws, communicate with his probation officer as required, and refrain from using narcotic
drugs, including marijuana.
A probation violation report was filed on August 15, 2000 alleging that Defendant had
violated his probation by failing to (1) report in as required; (2) make payments on his court costs,
supervisory fees and restitution; (3) report his arrest for driving without a license; (4) present
verification of employment; (5) present verification of G.E.D. class attendance; and (6) complete his
required community service. Following a hearing, Defendant was allowed until December 11, 2000
to come into compliance. Thereafter, Defendant was granted several more extensions to give him
time to fulfill his obligations until October 19, 2001, when Defendant’s probation was revoked.
During this time, Defendant completed his G.E.D. and community service hours. He also
made some payments on his financial obligations, but remained significantly in arrears. Defendant
was also arrested and convicted a second time for driving without a license. On August 23, 2001,
Defendant submitted to an in-house drug screen that tested positive for amphetamines, cocaine, and
marijuana. A second in-house drug screen performed on September 20, 2001 tested positive for
cocaine and marijuana. Both drug screens were sent to Aegis Analytical Laboratories for analysis,
and were returned positive for marijuana and negative for the other drugs.
At Defendant’s probation revocation hearing on October 19, 2001, testimony concerning the
laboratory reports was introduced over Defendant’s objection that the State did not properly lay the
foundation for the introduction of the tests. At the conclusion of the hearing, Defendant’s probation
was revoked.
On appeal, Defendant argues that the trial court erred in basing its decision to revoke
Defendant’s probation, for the most part, on Defendant’s positive drug tests. Specifically, Defendant
contends that the State failed either to present the technicians who prepared the drug analyses or
show good cause why such persons did not testify, and did not provide any testimony on the types
of tests used or the tests’ reliability as required by State v. Wade, 863 S.W.2d 406 (Tenn. 1993).
Accordingly, Defendant asks this Court to reverse the revocation of his probation.
In Wade, the Tennessee Supreme Court held that probation may not be revoked solely upon
the basis of an unidentified laboratory report, without a showing of good cause as to why the
technician preparing the report did not personally appear at the hearing and without proof as to the
reliability of the report. Id. at 409; see also State v. Ricker, 875 S.W.2d 687 (Tenn. Crim. App.
1994). In this instance, Defendant’s probation officer testified that she administered two drug
screens to Defendant in-house and forwarded the screens to the Aegis Analytical Laboratories for
analysis. The laboratory report indicates that the screens tested positive for marijuana. The State
did not produce the technician who prepared Defendant’s drug analyses nor offer any reason as to
why the person was not available to testify at trial. There also was no testimony regarding the
reliability of the tests. Based on the record, we conclude that the trial court did not follow the
mandates established in Wade, and accordingly erred in admitting testimony concerning the
laboratory report.
However, unlike the situations in Wade and Ricker, Defendant’s probation in this instance
was not revoked solely on the basis of his drug screens. The record shows that Defendant continued
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to fall behind on payments for his court costs, supervisory fees, and restitution. Defendant cited his
lack of employment as the reason why he was not able to make his payments on a regular basis. The
trial court declined to accept this reason. Additionally, Defendant’s failure to secure steady
employment, in and of itself, was a violation of probation. The trial court had the opportunity to
evaluate Defendant’s credibility and demeanor at trial. In probation revocation hearings, the
credibility of witnesses is left to the trial court’s determination. State v. Wall, 909 S.W.2d 8, 10
(Tenn. Crim. App. 1994) citing Bledsoe v. State, 215 Tenn. 553, 387 S.W.2d 811, 814 (1965). The
record shows that the trial court inquired into the reasons why Defendant had failed to make his
payments, and concluded that Defendant had not made a bona fide effort to reduce his obligations.
See State v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986).
In addition, Defendant was arrested on January 4, 2001 for driving with a suspended,
revoked, or canceled license and violation of the vehicle registration law. He pled guilty, and was
sentenced to serve five days. This action constitutes a direct violation of Defendant’s agreement to
obey all laws. The commission of a crime during probation constitutes sufficient evidence that a
violation of probation has occurred. State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim. App. 1995).
A trial judge is vested with the discretion to revoke a sentence of probation if it determines
by the preponderance of the evidence that the conditions of probation have been violated. Tenn.
Code Ann. § 40-35-311(e). Accordingly, the trial court’s decision will be upheld on appeal unless
there has been an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). To find
an abuse of discretion in a probation revocation, the record must be void of any substantial evidence
that would support the trial court’s decision to revoke probation. Id.; State v. Delp, 614 S.W.2d 395,
398 (Tenn. Crim. App. 1981).
Because there is sufficient evidence that Defendant violated the terms of his probation, the
record fully supports the revocation of Defendant’s probation.
CONCLUSION
Based upon a review of the record, we conclude that the trial court did not abuse its
discretion in revoking Defendant’s probation. The judgment of the trial court is affirmed.
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THOMAS T. WOODALL, JUDGE
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