State v. Bobby Wells

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 27, 2000 Session
STATE OF TENNESSEE v. BOBBY WELLS, JR.
Direct Appeal from the Criminal Court for Monroe County
No. 99-095 R. Steven Bebb, Judge
No. E2000-01496-CCA-R3-CD
June 28, 2001
A Monroe County jury convicted the defendant of the sale of .5 grams or more of cocaine
and of a separate offense involving the sale of less than .5 grams of cocaine. For these crimes the
trial court sentenced him to nine years and four years respectively as a Range I, standard offender.
These sentences were ordered to run concurrently with one another.1 Furthermore, the jury assessed
the defendant a fifteen thousand dollar fine on each conviction. At a subsequent hearing the trial
court denied his new trial motion and revoked his probation from previous offenses. Appealing these
decisions, the defendant raises the following six issues: 1) whether the trial court erred by permitting
the State to introduce transcripts of taped conversations allegedly transpiring between the defendant
and informant when such transcripts were admitted through a police officer who neither heard nor
electronically monitored the involved conversations; 2) whether the trial court erred by permitting
the prosecution to play and introduce the aforementioned tapes through the same officer; 3) whether
the State failed to prove chain of custody because it neither called the lab technician who placed the
evidence in the vault at the crime laboratory nor complied with Tennessee Rule of Evidence 803(6);
4) whether the trial court erred in refusing to grant the defendant a new trial based on newly
discovered evidence involving the informant’s motive for testifying against the defendant; 5)
whether sufficient evidence existed to support the conviction; and 6) whether the defendant’s
probation revocation should stand when such was based upon the above-outlined new convictions
and not the defendant’s failure to report as was alleged in the probation violation warrant and when
the convictions forming the basis for the revocation are allegedly not supported by sufficient
evidence. After a review of the record, we find these claims to lack merit and, therefore, affirm the
lower court’s actions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
1
The effective nine- year sentence was, however, ordered to run consecutively to the sentences on two previous
convictions.
JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and JAMES
CURWOOD WITT, JR., J., joined.
Charles M. Corn, Public Defender, Cleveland, Tennessee, for appellant, Bobby Wells Jr.
Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General;
Jerry N. Estes, District Attorney General; Shari Tayloe, Assistant Attorney General; for appellee,
State of Tennessee.
OPINION
Factual Background
On September 25, 1998, the informant Jerome Ervin met at the National Guard Armory with
James Kile and Patrick Upton. At that time Kile was with the 10th Judicial District Drug Task Force,
and Upton was a captain with the Sweetwater Police Department. Previously Ervin had agreed to
make an undercover purchase of narcotics in exchange for being placed on community corrections
early. At the armory the officers searched Ervin and his car to ensure that he did not already have any
drugs. Thereafter Kile gave the informant a micro-recorder and one hundred dollars instructing him
to acquire crack cocaine. As Ervin departed the armory, he was followed in a separate vehicle by
Kile and Upton. The informant was out of the officers’ direct observation for a few minutes in part
because the area around the defendant’s house afforded no good place to conceal themselves;
however, Kile and Upton resumed observation as Ervin left the residence. Upon returning to the
armory, Ervin returned the tape recorder and presented the officers with four rocks of a white
substance later identified as a total of .7 grams of cocaine.2 According to the informant, he had
acquired the narcotics from the defendant.
A little over one month later, Ervin again met with Kile behind the armory. The same search
procedure was utilized after which Kile gave the informant the micro-recorder along with sixty
dollars to use in purchasing the drugs. Thereafter Kile followed the informant to the defendant’s
home and saw Ervin enter the house. A few minutes later the officer and Ervin proceeded in their
respective vehicles to the armory. Upon arrival the informant presented Kile with the recorder and
one rock of a white substance subsequently found to be .3 grams of cocaine. Ervin stated that he had
also purchased the latter object from the defendant.
After hearing this and other proof, the jury convicted the defendant as charged. As above-
noted, the defendant now brings this appeal raising six issues.
The Playing and Introduction of Taped Conversations
and the Introduction of Transcripts of These Conversations
Because the defendant’s first two issues are interrelated, they will be considered jointly here.
We initially turn to the defendant’s assertion that the trial court erred in permitting the prosecution
2
More specific proof concernin g chain of cus tody will be d etailed in the disc ussion of the issue involving this
matter.
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to play and introduce through Officer Kile tapes of the conversations between Ervin and the
defendant during the drug transactions. In support of his contention that such was inappropriate, the
defendant points to the fact that Kile neither heard nor electronically monitored the conversations
as they transpired.
At the outset we note that the Tennessee Supreme Court has provided that:
tape recordings and compared transcripts are admissible and may be presented in
evidence by any witness who was present during their recording or who monitored
the conversations, if he was so situated and circumstanced that he was in a position
to identify the declarant with certainty, and provided his testimony in whole, or in
part, comports with other rules of evidence.
State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), overruled on other grounds by State v.
Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993). See also State v. Robert Bacon, No.
03C01-9608-CR-00308, 1998 WL 6925 at *11 (Tenn. Crim. App. at Knoxville, Jan. 8, 1998); State
v. Coker, 746 S.W.2d 167, 172 (Tenn. 1987).
In this case, though Officer Kile’s voice was the first and last on both tapes, he did not claim
to have been otherwise present nor to have monitored the conversations as they had transpired.
Nevertheless, at trial the defense specifically elected not to object to the playing and introduction of
the tapes during Officer Kile’s testimony as long as the informant was to be later called.3 Ervin did
testify following Officer Kile. Having acquiesced to the admission of the tapes, the defendant may
not now successfully seek relief because of it. See Tenn. R. App P. 36(a).
Realizing this, the defendant asserts that the matter involves plain error. However, in order
for this Court to find plain error, the error must affect a substantial right of the accused. See Tenn.
R. Crim. P. 52(b). Within his argument the defendant does not elaborate on what substantial right
has been violated, and as is reflected in the remainder of the analysis of this issue, we do not find that
this alleged error needs to be addressed to “do substantial justice.” See id.
Turning to the matter of the transcripts, the record reflects that the defendant did timely lodge
an objection to their use by the jury. Asserting at trial the rationales behind his objections, defense
counsel stated “... we object on ... the best evidence, and ... we think that the only person that can put
the transcript together is the guy who was there and the confidential informant.”
In examining the first of these objections, we observe that the transcripts were not admitted
into evidence and were permitted for use only as aids during the playing of the tapes. Furthermore,
the trial judge gave the following instruction before the first tape was heard:
Ladies and gentlemen, the reason [defense counsel] objected is because the tape is
the best evidence. I will allow a transcript to be used to help you, but you need to
understand that the transcript is not evidence and the tape is evidence. A human
being transcribed that and so you listen very carefully and take as evidence only what
you hear on tape.”
3
At the point a t which the pro secutor sou ght to play the tapes, she asked to approach the bench with defense
counsel to determine if he objected to her introducing the tapes through Kile. W hile stating that such w as “technically
objectio nable,” defense counsel indicated that he had no opposition to her doing so as long as the informant was going
to subsequ ently testify.
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The law presumes that juries follow the instructions they receive absent clear and convincing proof
to the contrary. See, e.g., State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). Counsel
makes no reference to any evidence that the jury disregarded the trial court’s instruction nor does our
review of the record reveal any. We must presume, therefore, that the jury followed the instruction.
Moreover, as to the defendant’s asserted need for the parties involved in the conversation to
have compiled the transcripts, Officer Kile testified that the informant Ervin had assisted in doing
so,4 and the State called the informant as its next witness. Had defense counsel any questions
regarding the accuracy of the transcripts, he could have cross-examined Ervin concerning this matter,
yet he chose not to do so. Thus, though procedurally the trial court did not follow the guidelines from
Jones, 598 S.W.2d at 223, for the admission of tapes and the use of transcripts the defendant
consented to the admission of the tapes through Officer Kile, the informant assisted in making the
contested transcription, and the defense had the opportunity to question the informant about the
content of the tapes. In view of these facts, any error is harmless. See Tenn. R. App. P. 36(b). For
these reasons this issue is meritless.
Chain of Custody
The defendant next contends that the prosecution failed to establish the requisite chain of
custody for the cocaine because: 1) the State did not call the individual who had received the drugs
from law enforcement and had locked away the substances in a vault for subsequent examination
by forensic scientists; and 2) the State did not follow the procedure for the introduction of records
as set out in Tennessee Rule of Evidence 803(6).
Before tangible evidence may be introduced, the party offering the evidence must either call
a witness who is able to identify the evidence or must establish an unbroken chain of custody. State
v. Holloman, 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992). "However, the failure to call all of the
witnesses who handled the evidence does not necessarily preclude its admission into evidence." State
v. Holbrooks, 983 S.W.2d 697, 701 (Tenn. Crim. App. 1998). Indeed, "[t]he identity of tangible
evidence need not be proved beyond all possibility of doubt and all possibility of tampering need not
be excluded." State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). Rather, "[i]t is
sufficient if the facts establish a reasonable assurance of the identity of the evidence." State v.
Woods, 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). "Whether the required chain of custody has
been sufficiently established to justify the admission of evidence is a matter committed to the sound
discretion of the trial court, and the court's determination will not be overturned in the absence of
a clearly mistaken exercise of that discretion." Holloman, 835 S.W.2d at 46.
As the case sub judice involves distinct narcotics convictions arising from two separate sales,
two chains of custody are involved. With respect to the .7 grams of cocaine, the informant gave four
crack rocks to Officer Kile. Kile placed the cocaine in a white film container and then an envelope
he had prepared. Upon arriving at the drug task force office, he deposited the cocaine as packaged
in an evidence locker for which only Ken Wilson, the director and custodian of evidence for the 10th
Judicial District Drug Task Force, had the key. Wilson later retrieved the package from the box,
logged it, gave it a custodial number, and placed it in a drop box to be taken to the Tennessee Bureau
4
Requiring a defendant to admit that he was present at a drug buy and to actually take part in making a
transcript thereof with the informant is obviously not an applicable standard relative to the use of transcripts and this
portion o f the defenda nt’s argument m erits no further co mment.
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of Investigation (TBI) crime laboratory. In this instance, Wilson himself subsequently took the
cocaine to the lab in Chattanooga and gave it to “Barbara,” the individual who worked the front
desk.5 According to the TBI form admitted as exhibit seven in this case, the evidence was received
from Ken Wilson by B. Sheets. Upon testifying, Jeff Wee-eng, a TBI forensic scientist, stated that
the latter was Barbara Sheets, the lab’s evidence technician. In reference to the form, Wee-eng
explained that the laboratory policy required this form to accompany any evidence admitted. He
added that the individual receiving the evidence must sign for it on this form; provide the name of
the person from whom they had received it along with the time and date; and assign the evidence a
laboratory number. Furthermore, Wee-eng affirmed that this was a record kept in the lab’s normal
course of business. Thereafter, this witness stated that he had removed the substance from the vault
where Sheets would have placed it and that the glued seal of the evidence bag had not indicated any
tampering had occurred. After testing the substance and determining as aforementioned that it was
.7 grams of cocaine, he resealed it in the bag using staples and plastic evidence tape. He then placed
his initials on the tape and again locked the bag in the vault. Reserve Detective Jim Wales and the
officer secretary picked up the cocaine from “the person in charge of the TBI lab.”6 The pair then
returned the cocaine to Ken Wilson at the task force.
Turning to the substance obtained in the second sale, the procedure followed was the same
though the individuals varied somewhat. Again Ervin handed the cocaine to Kile upon arriving at
the armory. Thereafter Kile placed the cocaine in a film canister, prepared the evidence envelope,
and deposited the package into the evidence locker at the task force. In this instance, Jim Wales took
the cocaine to the TBI lab. The TBI form reflects that Barbara Sheets also received the substance;
however, the examining forensic scientist was Alex Brodhag. Like Wee-eng, Brodhag also affirmed
that these forms were records “normally kept in the course of business” and stated that these forms
were “filled out when [the evidence] comes to the laboratory.” According to Brodhag the bag in
which the subject was held when he had first obtained it had been sealed and had shown no signs
of tampering. He added that his evaluation of the rock revealed that it was .3 grams of cocaine. And
according to the aforementioned form Wilson retrieved the evidence from Barbara Sheets.7
Thereafter he returned it the drug task force.8
The State did not call Barbara Sheets; however, her position in the chain was made apparent
by the TBI forms (and some corroborating testimony). As such, the defendant challenges whether
these forms satisfied the business record exception to the hearsay rule under Tennessee Rule of
5
Wilson added that Barbara “usually always takes” in the evidence.
6
Wales candidly acknowledged that he could not recall the individual’s name.
7
Though W ilson could not recall the full name of the perso n from whom he had retrieved the evidence, he
stated that her first name was Barbara and added “she’s the one that ha ndles all the, whe never we go , anything that’s
entered in the TBI lab , she receives it an d then if we go pick up anyth ing we retrieve it from there.”
8
Without objection from the defendant, the State provided two a dditional types of records. O ne of these
consisted of the pages on which Wilson had logged in the two sets of cocaine upon their initial arrivals at the station. The
other involved forms indicating whe n the eviden ce had be en checke d out from and returne d to the task force, w ho did
so, who received it, etc.
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Evidence 803(6). At the time of trial,9 this rule stated that the following is not excluded by the rule
against the admission of hearsay into evidence
A memorandum, report, record, or data compilation in any form of acts, events,
conditions, opinions, or diagnoses made at or near the time by or from information
transmitted by a person with knowledge and a business duty to record or transmit if
kept in the course of a regularly conducted business activity and if it was the regular
practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term “business” as used in this
paragraph includes every kind of business, institution, association, profession,
occupation, and calling, whether or not conducted for profit.
Tenn. R. Evid. 803(6).
Applying this to the case presently before us, we find that the TBI forms were properly
admitted pursuant to this exception. The combined testimonies of Wee-eng and Brodhag prove that
the portions of the TBI forms involving Barbara Sheets were made at or near the time of the activity
recorded by an individual with personal knowledge and the business duty to make the report in the
course of regularly conducted business. See Tenn. R. Evid. 803(6); State v. Carroll, 36 S.W.3d 854,
868 (Tenn. Crim. App. 1999). Furthermore, though technically not custodians of the records, these
witnesses were “qualified” to provide the necessary testimony as among other things they were
“personally familiar with the business’s record-keeping systems and ... able to explain the record-
keeping procedures.” Id. (quoting Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App.
1995)). Finally, this testimony also establishes a chain of custody sufficient to allow the admission
of the drugs into evidence. Having reached these determinations, we see no abuse of discretion by
the trial court in admitting the drugs and conclude that the defendant’s issue lacks merit.
Newly Discovered Evidence Relative to the Informant’s Motivation for Testifying
Through his next issue the defendant asserts that he should be granted a new trial because
of newly discovered evidence concerning the informant Ervin’s reason for testifying against him.
To receive a new trial on the ground of newly discovered evidence, a defendant must demonstrate
"(1) reasonable diligence in seeking the newly discovered evidence; (2) materiality of the evidence";
and (3) the likelihood that the evidence would change the outcome of the trial. State v. Nichols, 877
S.W.2d 722, 737 (Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)).
Additionally, the decision regarding whether to grant or deny a motion for a new trial predicated on
newly discovered evidence “rests in the sound discretion of the trial court.” State v. Walker, 910
S.W.2d 381, 395 (Tenn. 1995). Moreover, the trial court is authorized to ascertain the credibility
of newly discovered evidence for which the new trial is desired, and the motion should be denied
unless the court has assured itself that the testimony would be worthy of belief by the jury. Id.
9
Since the trial of this case Tennessee has adopted Rule of Evidence 902(11), which allows the authentication
of various business records by affidavit. This new rule should be read in conjunction with Rule 803(6).
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(quoting Rosenthal v. State, 200 Tenn. 178, 292 S.W.2d 1, 5, cert. denied, 352 U.S. 934, 77 S. Ct.
222, 1 L. Ed. 2d 160 (1956)). As a general rule, "newly discovered impeachment evidence will not
constitute grounds for a new trial .... But if the impeaching evidence is so crucial to the defendant's
guilt or innocence that its admission will probably result in an acquittal, a new trial may be ordered."
State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993) (citing State v. Rogers, 703 S.W.2d 166, 169
(Tenn. Crim. App. 1985); Rosenthal, 292 S.W.2d at 4-5; Evans v. State, 557 S.W.2d 927, 938
(Tenn. Crim. App. 1977)).
Looking more particularly at the claim presented to this Court, the defendant avers that the
informant Ervin testified against him because of a threat that Ervin’s children would be taken from
him. This “newly discovered evidence” was offered at the new trial motion hearing through
Lawrence Butts, a fellow prisoner convicted of attempted second degree murder. According to Butts
the conversation in which Ervin provided this explanation took place in the laundry room of the jail
on the morning Ervin was to testify.
In response the State called Officer Kile and Gary Conners, a community corrections official.
While acknowledging the possibility that “some other officer” might have spoken with Ervin about
his children, Kile maintained that Ervin had approached him in an effort to work out an agreement
whereby he would more quickly be placed on community corrections. Kile added that in a pre-trial
meeting at which he was present along with Ervin and Assistant District Attorney Shari Tayloe,
Ervin had indicated that his serving as an informant had been “for an early release on community
corrections.” Ervin made no mention at that time of any threat involving his child. Following Kile,
Conners testified that he had completed the involved paperwork more quickly to allow Ervin to enter
the community corrections program approximately thirty days early at Kile’s request. Conners added
that upon meeting Ervin, the informant had given no indication that threats were involved in his
decision to assist the authorities. Having heard this testimony, the trial court found that even if Ervin
had made such a statement: “people who are in jail who are going to testify against somebody are
very nervous about it generally anyway, and they may say anything to another inmate, and I can’t
grant new trials based on that sort of extrinsic evidence.” After analyzing the record with the
aforementioned standards in mind, we see no abuse of discretion in the trial court’s denial of relief
relative to this issue.
Sufficiency
The defendant also challenges the sufficiency of the evidence supporting the jury’s verdicts.
More specifically, the defendant points to the alleged chain of custody problem and avers that the
chief proof against him consists of poor quality audio tapes and a convicted felon’s testimony.
When an appellant challenges the sufficiency of the evidence, this Court is obliged to review
that challenge according to certain well-settled principles. A verdict of guilty, rendered by a jury and
approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts
in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a
presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with
one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of
proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The
relevant question the reviewing court must answer is whether any rational trier of fact could have
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found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom. See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence." Matthews, 805 S.W.2d at 779.
Turning from the applicable caselaw to an examination of the proof before us viewed in the
light most favorable to the State, the record supports the finding that the defendant’s conduct
fulfilled beyond a reasonable doubt all of the elements of the sale of .5 grams or more of cocaine
and of a separate sale of less than .5 grams of cocaine. See Tenn. Code Ann. § 39-17-417. The
defendant was known to the informant. The latter individual was searched on two separate days; was
provided money to purchase drugs; was followed to the defendant’s residence; was seen having
emerged from the defendant’s home; and was followed back to the armory. There Ervin presented
the police with cocaine on both of these occasions. Ervin added that he had purchased the substances
from the defendant. Subsequent testing of the rocks obtained in the first transaction revealed that
these were comprised of .7 grams of cocaine base. And as previously noted, examination of the rock
from the second sale disclosed that it was made up of .3 grams of cocaine base.
While admittedly in Ervin the State did not have an ideal witness, the jury was aware that he
had three prior drug convictions for selling cocaine and that he had co-operated with the State in
order to be placed on community corrections one month earlier than he otherwise would have been.
On cross-examination Ervin further acknowledged that he had since violated the terms of his
placement on community corrections by testing positive for cocaine usage and was re-incarcerated
at the time of trial. However, the jury was entitled to believe what it wished of his testimony since
the credibility of witnesses, the weight to be given their testimony, and the reconciliation of conflicts
in the proof are matters entrusted exclusively to the jury as the trier of fact. See State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). We also observe that proof existed corroborating portions of his
accounts. In view of this and our above-conclusion that the chain of custody allegation lacks merit,
we find the evidence legally sufficient to sustain his convictions.
Probation Revocation
In his final issue the defendant contends that his statutory10 and due process rights were
violated by failure to receive written notice of the grounds to be used in revoking his probation.11 As
such, the defendant argues that this Court should reverse and/or remand the matter.
In Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App.1974) (citing Gagnon v. Scarpelli,
411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92
10
Following the assertion that a statutory right of his had been violated, the defendant cites Tenn. Code Ann.
§ 40-35-311; however, this Court fails to see mention of a notice requirement therein.
11
The defendant also avers that the revocation was inappropriate since these convictions should be overturned
based upon insufficien t evidence. H aving found the sufficiency allega tion to lack merit, we will address this contention
no further. It pro vides no b asis for relief.
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S.Ct. 2593, 33 L. Ed. 2d 484 (1972)), this Court enunciated the constitutionally-mandated procedural
due process standards applicable to a probation revocation proceeding. Quoting Morrissey, 92 S.Ct.
at 2604, this Court then enumerated the "minimum requirements of due process" as including:
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to
the [probationer or] parolee of evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a "neutral and detached" hearing body
such as a traditional parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to the evidence relied on and
reasons for revoking [probation or] parole.
Practy, 525 S.W.2d at 680.
With respect to the instant case, the petition filed against the defendant cites only his failure
to report to his probation officer. Thus, there is no dispute that the defendant did not receive written
notice concerning the use of the convictions at issue here as the basis for his revocation. However,
at the close of the defendant’s sentencing hearing conducted on December 6, 1999, the trial court
indicated that it was revoking the defendant’s probation based on these convictions. At that point the
prosecution reminded the court that the stated violation had related to other matters such as the
defendant’s failure to report. In response the trial court re-iterated its intention to revoke the
defendant based upon the new convictions. Nevertheless at the request of defense counsel, the trial
court agreed to postpone the revocation until the hearing on the defendant’s new trial motion. When
the latter took place more than one month later, the defense did not attempt to put on any evidence
to controvert the validity of the convictions. The court made reference to the trial of these offenses
and entered the aforementioned revocation.
From the above facts it becomes apparent that while the defendant did not receive written
notice, he had actual notice of the intent to use the instant convictions to revoke his probation.
Though written notice is preferred, this Court has previously held that actual notice will suffice to
meet the due process requirements in a revocation of probation proceeding. See, e.g., State v.
Clifford W. Jackson, No. 02C01-9802-CR-00041, 1999 WL 615742 at *4 (Tenn. Crim. App. at
Jackson, August 13, 1999); State v. James C. Wolford, No. 03C01-9708-CR-00319, 1999 WL 76447at *7 (Tenn. Crim. App. at Knoxville, Feb. 18, 1999); State v. Peck, 719 S.W.2d 553, 557 (Tenn.
Crim. App. 1986); Stamps v. State, 614 S.W.2d 71, 73-74 (Tenn. Crim. App. 1980). We, therefore,
find this issue to lack merit also.
Conclusion
For the foregoing reasons we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.
___________________________________
JERRY L. SMITH, JUDGE
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