State of Tennessee v. Trevor Rochel Cullom, Alias

10/29/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 29, 2020
STATE OF TENNESSEE v. TREVOR ROCHEL CULLOM, ALIAS
Appeal from the Criminal Court for Knox County
No. 105113A G. Scott Green, Judge
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No. E2019-01943-CCA-R3-CD
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Defendant, Trevor Rochel Cullom, Alias, appeals from the trial court’s decision to revoke
his probation. After a review of the record, we determine that Defendant was denied due
process during his revocation hearing. As a result, we reverse the judgment of the trial
court and remand for a new hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Cameron D. Bell, Knoxville, Tennessee, for the appellant, Trevor Cullom.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In March of 2015, the Knox County Grand Jury named Defendant in a
presentment, charging him with one count of robbery and two counts of the fraudulent
use of a debit card. The presentment also included a separate count charging Defendant
with a criminal gang offense enhancement pursuant to Tennessee Code Annotated section
40-35-121(a)(3).
Defendant pled guilty to one count of robbery and one count of fraudulent use of a
debit card. The guilty plea petition indicates that the parties recommended a nine-year
sentence as a Range II, multiple offender for the robbery conviction and a four-year
sentence as a Range II, multiple offender for the fraudulent use of a debit card conviction,
to be served concurrently to the robbery sentence. The plea petition indicated that
Defendant would “Apply [for] Probation” and pay restitution of $644.60 to Citizens
National Bank and $230 to the victim. The record does not include a transcript of the
guilty plea hearing or judgment forms disposing of the two remaining counts of the
presentment.
Even though the presentence report assessed Defendant as “high risk”, the trial
court ordered Defendant to a sentence of split confinement. Defendant was ordered to
spend one year in the Knox County Jail with the balance of the sentence on State
supervised probation. The judgments were entered on April 13, 2016. Defendant
received pretrial jail credit from April 13, 2015 to April 13, 2016. On September 13,
2019, a violation of probation warrant was issued alleging that Defendant violated the
terms and conditions of his probation by receiving new felony charges.
The trial court held a hearing to determine whether Defendant violated the terms
of his probation. At the hearing, Caleb Coffey, an officer with the Knoxville Police
Department, testified that on September 12, 2019, he was working in West Knoxville.
Officer Coffey was “sitting at Ailor and Citico” watching a house when a call came in
from an employee at a Pilot station about an argument between two individuals in the
parking lot. According to Officer Coffey, the caller referenced an argument involving
“[a] black male wearing red shorts and a white t-shirt” and a woman in a parking lot. The
caller reported that the man pulled a gun on the woman and put it in the small of her
back. Officer Coffey arrived on the scene within thirty seconds of the call.
Officer Coffey knew Defendant prior to this date and saw him when he arrived at
the Pilot. Defendant was wearing red shorts but was not wearing a shirt. He was “yelling
at another black female who was walking off.” Defendant’s body was halfway “into a
green car” that Officer Coffey thought was a “Grand Marquis.” Officer Coffey was not
able to talk to the female because she “walked off towards Middlebrook.” Defendant
complied with the officer’s request to step out of the vehicle. He was placed into custody
on the ground about ten feet from the vehicle. The keys for the vehicle were later found
in the area where Defendant was taken into custody.
Defendant started asking Officer Coffey various questions. Defendant then
“spontaneously” told Officer Coffey that there might be marijuana and/or a gun in the
vehicle. At that point, Defendant was given Miranda warnings. Defendant gave consent
to the officer to search the vehicle. A gun was in plain view wedged in between the seats
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of the vehicle. The search also revealed “a pill bottle in the cup holder containing
marijuana and what [was] believed to be crack cocaine.” There was also a white shirt on
the center console of the vehicle near the gun.
Adelaide Stephens testified that Defendant was the father of her unborn twins.
She explained that Defendant drove the Mercury Grand Marquis on the day of the
incident to get her some ice at the Pilot station. The car actually belonged to Defendant’s
father. Ms. Stephens had driven the car the day prior to the incident to take her “daughter
to go enroll in a construction program at Austin East.” She saw a pill bottle on the
passenger-side floor of the car when she was driving and thought that it had been there
for a few days. “[T]o her knowledge” there was not a gun in the car when she was in it.
Lukia Nixon testified that she was eighteen years of age and was Ms. Stephens’s
daughter. She confirmed that Defendant was driving the Mercury Marquis on the day of
the incident. She recalled riding in the vehicle with her mother the day prior to
Defendant’s arrest. She left her firearm in the vehicle that she “carr[ies] for [her]
protection” because she was going into school and did not want to carry the gun with her
into the building. She placed the gun in between the seats and put the armrest down. She
forgot about the gun when she got back into the car because she “was moving so fast and
that wasn’t the only thing that [she] was doing that day.”
She explained that she bought the gun a few months prior off “Arms List” online
because her neighborhood was “dangerous.” She did not have a record of her purchase of
the gun and claimed that it came with enough ammunition to fill up the clip.
Before Defendant was given an opportunity to testify, counsel for Defendant
requested the opportunity to “get that cruiser video” and the “Pilot video.” The trial court
initially said, “that’s fine” and then said, “I don’t need that.” The trial court commented:
[Defendant], I don’t buy for one second that you didn’t know that gun was
in there. I’m not going to put this off any further. Stand up please.
I am a patient man, [Defendant], on many, many things and I give people
many, many more chances than what I probably should, but there is no
doubt in this court’s mind that you - - if you didn’t own that gun, that you
were in possession of it, actual or constructive. And I’ll just keep my
mouth shut about everything else that’s transpired in this hearing.
But when it’s proven to this Court that someone who is on probation out of
this court is in possession of a firearm, there is one thing I do and I do it
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consistently, your probation is revoked. The nine year sentence heretofore
probated is now ordered to be served . . . .
Defendant asked to “say something” after the trial court found Defendant to be in
violation of his probation. The trial court told Defendant he “had the opportunity to
testify a minute ago.” Defendant claimed he was never “asked to come up there” and
claimed that the “officer lied on the stand” and “told a bald-face f[*]cking lie.”
After the hearing, the trial court entered a written order revoking Defendant’s
probation and ordering him to serve his sentence in incarceration. Defendant received
jail credit from “04-13-15 to 04-13-16; 09-13-19 to 09-25-19.” Defendant appealed.
Analysis
Defendant argues on appeal that the trial court erred by denying him the right to
introduce testimony in his own behalf at the probation revocation hearing. Specifically,
Defendant argues that the trial court’s failure to allow him to testify was a violation of his
due process rights and that this Court should review the issue de novo because it involves
a question of law. The State disagrees.
A defendant who has been granted a suspended sentence and placed on probation
has a conditional liberty interest that is protected by due process of law. See State v.
Merriweather, 34 S.W.3d 881, 884 (Tenn. Crim. App. 2000); State v. Stubblefield, 953
S.W.2d 223, 225 (Tenn. Crim. App. 1997). However, because the issue in a probation
revocation proceeding is not the guilt or innocence of the defendant, both the United
States Supreme Court and Tennessee Supreme Court have recognized that “the full
panoply of rights due a defendant” in criminal prosecutions do not apply to probation
revocations. State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993) (citing Black v. Romano,
471 U.S. 606, 613 (1985); Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965)). The
minimum due process rights to which a defendant is entitled during a revocation
proceeding include:
(a) written notice of the claimed violations of [probation]; (b) disclosure to
the [probationer] 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 . . . ; and (f) a written statement by the fact
finders as to the evidence relied on and reasons for revoking probation . . . .
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Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (quoting Morrissey v. Brewer, 408 U.S.
471, 489 (1972)) (emphasis added).
Here, we determine from the record that Defendant was given written notice of the
claimed violations of probation. He was served with a copy of the warrant and attended
the revocation hearing. In addition, Defendant heard the evidence against him through
the testimony of the arresting officer at the hearing. Likewise, Defendant confronted and
cross-examined adverse witnesses at the “neutral and detached” hearing and received a
written statement as to the reasons justifying the revocation. Id. We cannot find,
however, that Defendant had the opportunity to be heard in person. At the conclusion of
Ms. Nixon’s testimony, counsel for Defendant asked the trial court for the police cruiser
video and the surveillance tapes from the Pilot station. The trial court seemed to agree
with counsel momentarily before determining that the evidence was not necessary. The
trial court went on to rule on the revocation. While Defendant presented witnesses on his
behalf, both Ms. Stephens and Ms. Nixon, Defendant was not permitted to testify or
“say” anything, even when he requested permission from the trial court to do so when the
trial court revoked his probation. We acknowledge that there was substantial evidence to
support the revocation of probation by the trial court and understand the trial court’s
likely frustration with Defendant’s inability to successfully complete the term of
probation. This, however, does not obviate the trial court’s duty to ensure Defendant’s
due process rights are met at the hearing. As a result, the order of revocation is reversed
and the cause is remanded for a hearing in accordance with the requirements of
procedural due process.
Conclusion
For the foregoing reasons, the judgment of the trial court is reversed and the
matter is remanded for a new hearing.
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TIMOTHY L. EASTER, JUDGE
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