JERMAINE DAMON THOMPSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2008-11-05
Nos. 3D06-1895, 3D06-1889
Before RAMIREZ, WELLS, and SALTER, JJ.
994 So. 2d 468 Florida District Court of Appeal, Third District (2008) Positive Treatment
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Thompson appealed the revocation of his probation and resulting 31-year sentence, challenging the admission of hearsay evidence from a co-defendant at the revocation hearing. The Third District affirmed the revocation, holding that hearsay is admissible in probation revocation proceedings when corroborated by non-hearsay evidence, and that Crawford does not apply to such hearings.


Holding

Thompson's due process rights were not violated because: (1) Thompson failed to preserve the due process argument at trial, raising only a Crawford objection instead; and (2) even if preserved, hearsay is admissible at probation revocation hearings when corroborated by sufficient non-hearsay evidence, and Florida law does not require every witness to be available for cross-examination at such proceedings.


Headnotes

[1] Hearsay evidence is admissible in probation revocation hearings, provided it is not the sole basis for revoking probation.

[2] A defendant cannot raise a new legal argument on appeal that was not presented to the trial court.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Hearsay evidence is admissible at probation revocation hearings as long as it is not the only evidence relied upon to revoke probation.”

Establishes the governing standard for admissibility of hearsay at probation revocation proceedings

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Thompson was on probation for 1994 crimes when arrested in 2004 for attempted murder of a police officer and firearm possession by a convicted felon. …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SALTER, J.

SALTER, J.

Jermaine Damon Thompson appeals the revocation of his probation and the sentence he received as a result. We affirm.

Thompson was on probation for crimes he committed in 1994. In 2004, he was arrested and charged with, among other violations, the attempted murder of a police officer and possession of a firearm by a convicted felon.

Thompson and a co-defendant, Louise Desusa, were in a car rented by Thompson. Desusa drove, and Thompson was identified by the victim (an officer surveil-ling the defendants, their car, and the crime scene before shots were fired from the car). The officer testified at Thompson’s revocation hearing, but conceded that he did not see a gun in Thompson’s hand while shots were being fired.1 Gunshot residue was found on both Desusa and Thompson when arrested shortly after the shots were fired. When the State sought to introduce a tape-recorded statement given by Desusa, Thompson’s counsel made an objection “based on Crawford,”2 to “statements coming in from a co-defendant which we have no ability to cross-examine as truth of veracity of state [sic].” The State responded: “Probation violation hearsay is admissible. I have yet to see legal authority that Crawford applies to probation violation hearings, so this is admissible.”

The trial court then overruled the objection, stating, “My understanding is Crawford, at this point, does not apply to probation violation hearings.” Defense counsel did not cite Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), United States v. Zentgraf, 20 F. 3d 906 (8th Cir.1994), or any of the other cases relied upon by Thompson here for his due process argument. Nor did Thompson’s counsel request the State to demonstrate good cause for not presenting Desusa as a witness at the violation hearing.

On the tape, Desusa further implicated Thompson as the person who fired several shots at the officer. The trial court revoked Thompson’s probation and sentenced him to thirty-one years in prison, a sentence he could have received for the 1994 crimes. See § 948.06(2)(b), Fla. Stat. (2006). Thompson’s appeal followed.

Due Process

Thompson argues that his Fourteenth Amendment due process rights, as set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey, 408 U.S. at 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, were violated. Specifically, Thompson maintains that he had a due process right to confront Desusa in court unless the State showed good cause as to why Thompson should not be permitted to do so. We disagree.

First, in objecting to the admission of Desusa’s statement, defense counsel only argued that Thompson had a right to confront Desusa under Crawford.

The due process issue was never raised in the objection. The trial court therefore had no occasion to balance Thompson’s limited due process rights against whatever explanation the State might give for the absence of Desusa. See United States v. Belser, 214 Fed.Appx. 961, 962 (11th Cir.2007). Thompson cannot raise one argument below and a different one here. See State v. Osvath, 661 So. 2d 1252 (Fla. 3d DCA 1995).4

In Florida, a probationer appears with counsel before a single, neutral fact-finder. Floyd v. Parole & Prob. Comm’n, 509 So. 2d 919, 920 (Fla.1987). This neutral fact-finder need only find the evidence at a probation revocation hearing is “sufficient to satisfy the conscience of the court that a condition of probation has been violated.” Peters, 984 So. 2d at 1234. The court must give the probationer “an opportunity to be fully heard.” § 948.06(2)(d), Fla. Stat. (2006). This process of satisfy ing the court’s conscience should be “flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id. (quoting Morrissey, 408 U.S. at 489, 92 S.Ct. 2593); see Scarpelli, 411 U.S. at 782 n. 5, 93 S.Ct. 1756 (emphasizing that Morrissey’s holding did not “prohibit use where appropriate of the conventional substitutes for live testimony”).

Hearsay evidence is admissible at probation revocation hearings as long as it is not the only evidence relied upon to revoke probation. See Russell, 982 So. 2d at 646. In Russell, the victim of a domestic battery did not testify. Her statement to a police officer was read in court. The officer who took the statement and observed the victim’s injury did testify and he corroborated the victim’s statement regarding her injury. While the probationer also testified, his testimony went only to technical probation violations, having invoked his Fifth Amendment protection against self-incrimination regarding the battery. His probation was revoked, and the district and supreme courts affirmed.

As Russell instructs, non-hearsay evidence need not directly link the probationer to the alleged violation. Id. at 647. Rather, the non-hearsay evidence should be sufficient to support a hearsay allegation. Id. As a result, the trial court “must assess the credibility of the particular witnesses, the reliability of the available evidence, and the totality of the evidence under the circumstances in each individual case.” Id.

Here, hearsay evidence was admitted at Thompson’s revocation proceeding: Desusa’s allegation that Thompson was the shooter. This was not the only evidence, however. Non-hearsay evidence also was introduced, revealing that: Thompson fled the scene after the shooting occurred; both Thompson and Desusa tested positive for gunshot residue, linking Thompson to the vehicle driven by Desusa; a firearm was located near the spot where Thompson was apprehended; other firearms were found on the passenger seat of the vehicle and on the passenger seat floor, including the gun fired during the shooting; Thompson was barefoot when he was arrested; one of his shoes was found in the vehicle driven by Desusa; the other shoe was found near the spot where Thompson was caught; the car driven by Desusa was rented by Thompson, evidenced by a registration, rental agreement, and insurance card all bearing Thompson’s name; and finally, Desusa was observed unarmed while the shooting was taking place.

While Desusa did not testify, Florida law does not require that every witness, or even the victim of the underlying crime that is the alleged probation violation, be available for cross-examination at a probation revocation hearing. See id. at 642.

The credibility of the witnesses who did testify, as well as the totality of the evidence, were fully examined by the trial court. Thompson’s flight, the gunpowder residue on his hands, the fact that the vehicle was rented in his name, and the fact that he is a convicted felon were enough, at a minimum, to find that he possessed a firearm, a violation of one of his probation conditions. See Barrientos v. State, 825 So. 2d 1065 (Fla. 4th DCA 2002). Consequently, the trial court’s conscience was satisfied that Thompson willfully violated his probation, and he was sentenced accordingly.

Affirmed.

. The officer testified that he was ducking behind the dashboard of his vehicle as bullets entered his windshield. During a lull in gunfire, the officer looked up to see Desusa screaming while sitting in the driver’s seat of Thompson's vehicle, her open hands held aloft. The officer testified that Thompson was in the front passenger seat of the car from which the shots originated, and that he was "positive” that Thompson was the shooter, even though he did not see a gun in Thompson’s hand. The officer also saw Thompson flee the vehicle.

. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

. In his initial brief, Thompson raised both the Crawford argument and the (unpreserved) due process argument. The brief was filed prior to the decisions in Peters v. State, 984 So. 2d 1227 (Fla.2008), and Russell v. State, 982 So. 2d 642 (Fla.2008). At oral argument, Thompson's appellate counsel correctly abandoned this point. The Florida Supreme Court, in Peters and Russell, has determined that Crawford does not apply to probation revocation hearings.

.We do not find that Thompson's counsel’s failure to invoke Morrissey, to make a due process objection to the use of Desusa’s statement, or to request that the State demonstrate good cause for Desusa's unavailability, arises to the level of "fundamental error.” See Martinez v. State, 981 So. 2d 449, 455 (Fla.2008).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • State v. Davis, 133 So. 3d 1101 (Fla. 3d DCA 2014)
    …40 (Fla.1985)). However, hearsay evidence may not form the sole basis for a revocation; non-hearsay evidence must also be presented to support a finding of a violation of probation. See Russell v. State, 982 So. 2d 642 (Fla.2008); Thompson v. State, 994 So. 2d 468 (Fla. 3d DCA 2008). As another example, at least one court has applied a relaxed evidentiary standard in restitution hearings, holding that hearsay is admissible in such hearings provided the hearsay evidence bears “some minimal indicia of reliabil…
  • Titus Henley v. State, 117 So. 3d 1125 (Fla. 3d DCA 2012)
    …898 So. 2d 1126, 1127 (Fla. 3d DCA 2005) (“[T]here must be evidence in the record to support a finding that any violation was willful and substantial.” (quoting Rubio v. State, 824 So. 2d 1020, 1021 (Fla. 5th DCA 2002))); see also Thompson v. State, 994 So. 2d 468, 471 (Fla. 3d DCA 2008) (“Hearsay evidence is admissible at probation revocation hearings as long as it is not the only evidence relied upon to revoke probation.”). We therefore affirm in part and reverse in part and remand this matter with instruc…
  • Person v. State, 83 So. 3d 940 (Fla. 3d DCA 2012)
    …e and failing to report timely to his probation officer, were both lawfully imposed and correctly found to have been violated. See Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010); Blake v. State, 21 So. 3d 129 (Fla. 3d DCA 2009); Thompson v. State, 994 So. 2d 468 (Fla. 3d DCA 2008). While we affirm the revocation based upon the latter two grounds, violations 1 and 4, we remand for resentencing based only on those two violations we have approved. See Blake, 21 So. 3d at 129; Estevez v. State, 705 So. 2d 972 (…

Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw