State v. Dominic Amari ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
June 30, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) NO. 01C01-9703-CR-00077 Clerk
Appellate Court
)
Appellee ) DAVIDSON COUNTY
)
V. ) HON. ANN LACY JOHNS,
) JUDGE
DOMINIC JUDE AMARI, )
) (Probation Revocation)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Clark Lee Shaw John Knox Walkup
2525 Lebanon Road Attorney General and Reporter
Nashville, Tennessee 37214
(at trial and on appeal) Ellen H. Pollack
Assistant Attorney General
Lionel R. Barrett, Jr. 450 James Robertson Parkway
Washington Square Two Nashville, Tennessee 37243-0493
Suite 417
Nashville, Tennessee 37201 Victor S. Johnson, III
(at trial) District Attorney General
Roger Moore
Assistant District Attorney
Washington Square Building
Suite 500
Nashville, Tennessee 37201
OPINION FILED:_____________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Dominic Jude Amari, appeals from the judgment of the trial court
revoking his probation and sentencing him to one (1) year and six (6) months in the
Metro-Davidson County Detention Center, with the appellant being required to serve
thirty days of that sentence at 100%, day for day. The appellant raises two issues for
our consideration on appeal. First, he contends that the evidence introduced at the
probation revocation hearing was insufficient to support the trial court’s decision to
revoke his probation. Second, he contends that the trial court erred in failing to recuse
herself from the revocation proceeding.
Following our review of the record, we conclude that there is no reversible error
and, accordingly, affirm the judgment of the trial court.
This case had its beginnings in a protracted and bitterly contested divorce and
custody proceeding in the Circuit Court of Davidson County. The appellant’s former
wife was awarded custody of the parties’ minor son. The appellant, in defiance of the
custody order, took his minor son and fled from the State of Tennessee, using false
identification papers. He was ultimately arrested and custody of the minor child was
returned to the appellant’s former wife. Following his arrest, the appellant was
indicted in the Davidson County Criminal Court for the violation of Tennessee Code
Annotated section 39-2-303, which was the child kidnapping statute in effect at that
time.
Subsequently, the appellant entered a plea of guilty to the offense as charged,
and was sentenced to immediate probation pursuant to the provisions of Tennessee
Code Annotated section 40-35-313, sometimes referred to as the “judicial diversion”
statute.
As a part of his judicial diversion, the appellant was placed upon a term of
probation for thirteen (13) years when appellant’s child would attain the age of
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eighteen (18) years. In addition, the appellant was required to “abide by all orders of
any court with domestic jurisdiction.”
Subsequently, in July 1996, the appellant, in the presence of his minor son,
gave a television interview to a local television station in Nashville. The interview
apparently focused on the appellant’s belief that fathers generally do not receive fair
treatment from the courts with respect to custody issues.
One of the provisions of the appellant’s divorce decree was that he was
enjoined from discussing “matters pertaining to the [appellant’s] divorce [from his wife]
and legal matters . . . in the presence of [the couple’s] son.” Accordingly, after
appellant gave the television interview, he was ordered to appear in the circuit court to
show cause why he should not be adjudged in contempt for violating that portion of
the court’s order. Following the show cause hearing, the circuit court, which had
domestic jurisdiction over the appellant, found him to be in criminal contempt of its
order and sentenced him to a ten (10) day suspended sentence.
Thereafter, on July 17, 1996, a probation revocation warrant was issued
alleging that the appellant had violated a condition of his probation by having been
found in contempt of the circuit court’s order.
On September 11, 1996, a revocation hearing was conducted. During the
course of that hearing, the trial court received evidence regarding the interview that
appellant had given to the television station which prompted the contempt hearing in
the circuit court. The trial court was also concerned about whether the appellant had
also violated other conditions of his probation by: (1) living outside of Davidson
County without the trial court’s permission; (2) traveling out of the State of Tennessee
without the trial court’s permission; and (3) maintaining self-employment. The trial
judge, therefore, continued the matter until September 25, 1996, in order to cause a
second probation revocation warrant to issue and be served upon the appellant giving
him notice of the additional allegations. However, no additional probation violation
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warrant appears in the record on appeal, and none was served upon the appellant.
Counsel for the appellant, nevertheless, announced that he was ready to proceed with
both probation revocation warrants when the September 25, 1996, hearing
commenced.
At the conclusion of the evidentiary hearing on September 25, 1996, the trial
court found that the appellant had violated the terms and conditions of his probation
by: (1) violating the order of the circuit court respecting his domestic case; (2) living in
Williamson County without having obtained permission of the trial court; (3) traveling
out of the State of Tennessee without first obtaining the permission of the trial court;
and (4) being self-employed. Accordingly, the trial court revoked appellant’s judicial
diversion, fixed his sentence at eighteen (18) months, and ordered that he serve thirty
(30) days of that eighteen-month sentence at 100%, day for day, in the Metro-
Davidson County Detention Center.
On appeal, the appellant first contends that the evidence is insufficient to
support the trial court’s decision to revoke his probation. With respect to appellant’s
residence in Williamson County, his business travel, and his employment, we agree
that the record fails to support the trial court’s conclusion that appellant violated the
terms of his probation.
We have reviewed the record on appeal and find nothing in the order of
probation which would have required the appellant to first obtain permission of the trial
court to live in Williamson County, rather than Davidson County, to travel out-of-state
on business, and to be self-employed. The evidence indicates that since 1992, the
appellant has lived at Asbury Court, just across the Davidson County line in
Williamson County, he has traveled out-of-state on business trips as an engineering
consultant, and he has been both self-employed and employed through various
consulting businesses.1 Appellant notified his probation officer about his address and
1
The appellant began his probation in 1991 while living in Colorado. In February 1992, he
mov ed bac k to Te nness ee and took up residenc e at Asb ury Cour t in W illiamson Coun ty.
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his means of employment, and he received permission for each trip that he took in the
course of his business. The record reflects that the appellant complied with the
conditions of his probation in those respects.
Nevertheless, the trial court correctly found that the appellant violated his
probation when he was adjudged to be in contempt of the circuit court’s order. The
terms of appellant’s probation required him to observe any special conditions imposed
by the Davidson County Criminal Court, including compliance with all orders of any
court with domestic jurisdiction over him. The circuit court found him in criminal
contempt for giving the television interview in the presence of his minor son. By failing
to abide by the circuit court’s order, the appellant was in violation of his probation.
A trial court is empowered to revoke a defendant’s probation whenever the
court finds by a preponderance of the evidence that the defendant has violated the
conditions of his probation. Tenn. Code Ann. § 40-35-311(d) (Supp. 1990). The
revocation of a probationary sentence is committed to the sound discretion of the trial
judge and will not be overturned on appeal unless it appears that there was an abuse
of discretion. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981), perm. app. denied (Tenn.
1981). To sustain the revocation, the evidence need not show a violation of the terms
of probation beyond a reasonable doubt; it is sufficient if the proof allows the trial
judge to make a conscientious and intelligent judgment. See State v. Milton, 673
S.W.2d 555, 557 (Tenn. Crim. App. 1984).
In this case, the evidence of appellant’s contempt order was sufficient to
support the trial court’s decision to revoke his probation. Therefore, although we
conclude that the trial court erred in finding probation violations concerning appellant’s
residence, his travel, and his self-employment, we hold that the probation revocation
was proper.
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The appellant next contends that the trial judge committed fundamental error
when she failed to recuse herself from the probation revocation proceeding. He
argues that the judge was biased against him due to an ex parte communication with
one Marilyn Anderton.
This issue is without merit.
On the evening before appellant’s probation revocation hearing, the trial judge
was approached at her home by Marilyn Anderton concerning appellant’s case.
Unknown to the judge at that time, Ms. Anderton knew the appellant and was formerly
married to appellant’s ex-wife’s present husband. Ms. Anderton attempted to give the
judge a letter and discuss the appellant’s case. The judge refused to have any
conversation about the substance of appellant’s case and Ms. Anderton was asked to
leave.
The appellant testified at the revocation hearing that he knew Ms. Anderton, but
had no knowledge about her attempt to discuss the case with the trial judge. The
judge addressed the matter on the record and indicated that she was unhappy about
the encounter. However, there was no showing that she was biased or prejudiced by
the incident and neither the appellant nor the State requested a recusal.
The appellant relies on the ex parte communication with Ms. Anderton and
comments made by the trial judge at the revocation hearing to contend that a recusal
was necessary.2 The appellant raises this issue for the first time in this appeal. He
made no objection in the earlier proceeding, but instead allowed the trial judge to
preside over the revocation hearing without any challenge that the judge was biased
and unable to preside impartially over the case. Appellant’s failure to request a
recusal at the revocation hearing constitutes waiver. See Woodson v. State, 608
S.W.2d 591, 593 (Tenn. Crim. App. 1980), perm. app. denied (Tenn. 1980); State v.
2
In his brief, the appellant points to eight statements made by the trial judge during the
revocation hearing which he contends show bias and prejudice. We have thoroughly reviewed those
statements and note that five of the eight statements were made after the close of the evidence when
the trial judge was issuing her findings and conclusions of fact. The statements, when read in the
contex t of the entire record, fa il to show bia s or preju dice so a s to requ ire a recu sal.
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Jackie H. Martin, No. 02C01-9512-CR-00374 (Tenn. Crim. App. at Jackson, Dec. 2,
1996).
Nevertheless, even when addressed on the merits, the record fails to show bias
or prejudice that would have required the trial judge to recuse herself. A recusal is
proper whenever the trial judge has any doubt concerning her ability to preside
impartially in a criminal case or whenever her impartiality can reasonably be
questioned. See State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). The decision of
whether to grant a recusal is left to the sound discretion of the trial judge and will not
be overturned on appeal absent an abuse of that discretion. See State v. Smith, 906
S.W.2d 6, 11 (Tenn. Crim. App. 1995).
In appellant’s case, we cannot conclude that the trial judge harbored a bias or
prejudice sufficient to mandate a recusal. The trial judge acknowledged on the record
that she had been approached by Ms. Anderton in connection with appellant’s case.
However, the judge stated that she prevented any discussions or exchanges of
information related to the substance of the case. The record fails to show any
resulting bias and we are confident that the trial judge rendered a proper and impartial
judgment.
Based upon the foregoing, the judgment of the trial court is affirmed.
WILLIAM M. BARKER, JUDGE
CONCUR:
GARY R. WADE, Presiding Judge
J. CURWOOD WITT, JR., JUDGE
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