Lloyd R. Green s/k/a Lloyd Ricardo Green v. CW

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
LLOYD R. GREEN, S/K/A
LLOYD RICARDO GREEN
MEMORANDUM OPINION * BY
v. Record No. 1704-97-1 JUDGE RICHARD S. BRAY
MARCH 31, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden (A.J. Stone, Jr., on brief),
for appellant.
John K. Byrum, Jr., Assistant Attorney
General (Mark Earley, Attorney General, on
brief), for appellee.
On April 11, 1996, the trial court convicted defendant of
possession of cocaine in violation of Code § 18.2-248 and imposed
a sentence partially suspended upon certain conditions. On July
3, 1997, the trial court conducted a revocation hearing and
revoked a portion of the suspended sentence after finding that
defendant had violated the terms of suspension. Defendant
complains on appeal that the trial court erroneously admitted
evidence at the hearing of a "death threat" directed by defendant
to his probation officer. Finding no error, we affirm the
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disposition of the appeal.
Prior to the revocation, defendant was properly notified of
a hearing before the trial court, scheduled on the Commonwealth's
motion to revoke the suspended sentence, "for [defendant's]
failure to comply with the conditions of such suspension." 1 At
the hearing, Larry Beam, the defendant's probation officer,
testified that defendant had violated the "rules and conditions
of probation" by failing (1) to keep two mandatory appointments
for drug treatment, (2) to provide certain employment
information, and (3) to obtain permission to change his
residence.
An additional Commonwealth witness, police officer Scott
Keller, testified that, at the time of defendant's arrest
incidental to the revocation proceedings, he threatened "to kill
Mr. Beam when he got out of prison." In overruling defendant's
timely objection to this evidence as irrelevant to the alleged
violations, the court declared, "If what he says is
objectionable, I'll ignore it." During cross-examination of the
officer with respect to defendant's demeanor at the time of the
threat, the trial judge interjected, "[t]he court will take
notice that he was unhappy about being violated," prompting
1
The conditions designated on the notice were "6. To follow
the probation and parole officer's instructions and be truthful
and cooperative," and "10. [n]ot to change [his] residence
without the permission of the probation and parole officer and
not to leave the State of Virginia or travel outside of a
designated area without permission of the probation and parole
officer."
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defendant's counsel to respond, "that saves a lot of time."
Defendant testified, offered explanations for his failure to
satisfy the specified conditions and denied the alleged threat
against Beam. Nevertheless, the Court found "sufficient
[evidence] to prove a violation of the conditions of the
suspended sentence" and revoked the suspension. On appeal,
defendant challenges the admission of the officer's testimony,
both as irrelevant and "highly prejudicial."
It is well established that the trial court may revoke a
suspended sentence "for any cause deemed by it sufficient." Code
§ 19.2-306. "[T]he issue on review of a revocation is 'simply
whether there has been an abuse of discretion.'" Connelly v.
Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245 (1992)
(citations omitted); Code § 19.2-306. "[P]robation revocation
hearings are not a stage of criminal prosecution . . . [and
therefore] 'formal procedures and rules of evidence are not
employed,' and . . . the process of revocation hearings 'should
be flexible enough to consider evidence . . . that would not be
admissible in an adversary criminal trial.'" Davis v.
Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991)
(citations omitted). A "trial judge is presumed to disregard
prejudicial or inadmissible evidence, and this presumption will
control in the absence of clear evidence to the contrary." Hall
v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)
(en banc) (citations omitted).
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Assuming, without deciding, that admission of Officer
Keller's testimony regarding defendant's threat was not proper in
the instant proceedings, the record clearly establishes that the
trial court did not consider such evidence in finding that
defendant violated the specified conditions. Adding to the
presumption that a trial court disregards improper evidence, the
trial judge here expressly assured defendant that he would ignore
any inadmissible testimony from Officer Keller, and nothing in
the record suggests that the court acted otherwise. Moreover,
apart from the disputed evidence, the testimony of the probation
officer, together with other clearly admissible evidence,
provided ample support for the revocation.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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