County Criminal Court: CRIMINAL LAW – Probation – The trial court did not err in finding that Appellant willfully and substantially violated the terms of his probation. Affirmed. Klod v. State, No. CRC0802718CFAWS, (Fla. 6th Cir.App.Ct. January 3, 2011).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
JAMISON NEAL KLOD,
v. Case No: CRC0802718CFAWS
Lower No: 06-3865MMAWS
STATE OF FLORIDA, 06-7687MMAWS
Appeal from Pasco County Court
County Judge Marc H. Salton
Lynda Beth Barack, Esq.
Bryan Sarabia, A.S.A.
ORDER AND OPINION
Appellant raises three issues on appeal: (1) The trial court committed reversible error by aiding the State in its efforts to prove Appellant’s violation of probation; (2) The trial court erred by finding a willful and substantial violation of Appellant’s probation based on the victim’s testimony; and (3) Insufficient evidence was adduced at the hearing to support the revocation of Appellant’s probation. Appellant’s arguments lack merit. This Court affirms the trial court’s order revoking Appellant’s probation.
Appellant was charged with battery and violating his pretrial release on an underlying domestic violence charge on July 7, 2006. On August 22, 2006, Appellant was again charged with battery and violating his pretrial release for offenses occurring on July 19, 2006. On November 7, 2006, Appellant was again charged with violating his pretrial release for two offenses occurring on October 17, 2006. On November 28, 2006, Appellant entered a no contest plea for each of the charges. Appellant was sentenced to 180 days jail time, followed by 12 months probation. Four months later, an affidavit of violation of probation was filed, in which Appellant was found not, on June 4, 2007.
This appeal stems from another affidavit of violation of probation filed on October 2, 2007 for (1) failure to report for scheduled appointment on July 19, 2007 and September 27, 2007; (2) failure to pay cost of supervision fees; (3) failure to enroll in and complete the battery intervention program; and (4) failure to pay monthly on the court costs and fines. A final affidavit was filed adding Appellant’s two new crime violations of domestic battery and violation of pretrial release, which occurred on October 17, 2007 and October 31, 2007, respectively.
At the April 7, 2008 hearing, the victim in all the cases, Michelle Luther, testified. She recalled being notified of Appellant’s October 17, 2007 arrest and writing a statement, but that she was not present during the arrest. Ms. Luther testified that she was upset, intoxicated, and had argued with Appellant. Since Ms. Luther stated the incident was six months ago, and she was having trouble remembering, the State gave Ms. Luther her signed, written statement to refresh her recollection. Ms. Luther further testified that they had been drinking all day, had an argument, and chased each other around and wrestled. Ms. Luther admitted that Appellant hit her, but could not recall if it was three times in the jaw or whether she had a bloody nose from it.
The State attempted to introduce her written statement into evidence as a past recollection, yet Ms. Luther still stated she could not recall that night’s events. The State then moved to enter the statement into evidence to which the defense objected. The trial court explained that the statement could be used to refresh her recollection, but since it did not, it could be admitted as an out of court statement, which would be hearsay and could be considered in a violation of probation hearing, but not its sole basis. Ms. Luther admitted that the handwriting and signature on the document was hers and that it was created around October 17, 2007, but could not recall if the time on the document was accurate. The State again moved to admit the document into evidence. The trial court interjected that there was one question the State had not asked yet. After a couple attempts to ask the missing question, the trial court stated that the question was whether the statement would have been true at the time it was written. Ms. Luther responded that it was. The trial court would not allow the State to admit the document into evidence, instead allowing Ms. Luther to read it. The statement reported that she was assaulted in her home with a dog food pot and punched three times in the jaw by Appellant. Ms. Luther asked Appellant to leave. Appellant chased Ms. Luther to the garage, cutting her ankle, hurting her back, hitting her face, and causing a bloody nose.
Ms. Luther recalled the police coming to her house Halloween morning of 2007, but could not recall the reason. The State showed Ms. Luther another written statement, which she acknowledged writing, signing and dating. She testified that it stated that Appellant came into her home uninvited. Ms. Luther stated that the document did not help refresh her recollection because it did not specifically include the events. She claimed to not know what the document referenced, but imagined it was due to the argument she had with Appellant. They had broken up and Appellant still had some things in her house and came to get them. Ms. Luther could not recall whether she was there then or not. The trial court interjected by asking Ms. Luther whether she remembered writing the document; whether she wrote it around October 31, 2007; whether when she wrote it she would have had a recollection of the events; whether when she wrote the document she would have known what was happening on that day; and whether what she wrote would have been accurate. Ms. Luther responded affirmatively. The State asked her to read what she wrote: “Jamison Klod came into my home uninvited.” The State withdrew any remaining questions.
Officer Keith Campbell, who was working for the New Port Richey Police Department the morning of October 31, 2007, also testified. He received a 911 call from the victim, Michelle Luther, screaming and yelling that Appellant had come into her house and was after her. She was in fear of him, so Ms. Luther ran and left. Another officer brought Ms. Luther back to the house. She had been drinking, but was not completely intoxicated. Ms. Luther stated that Appellant had parked a car in the front yard and disconnected the battery from her car at her house. Officer Campbell spoke to a lady next door, who had seen Appellant there too.
In the course of his investigation, Officer Campbell got a written statement from Ms. Luther. He also checked on Appellant’s record, knowing that he had been arrested not too long before for a domestic battery. There was a pretrial condition of no contact. Officer Campbell stayed in the area predicting that Appellant would return. As he had predicted, Officer Campbell saw Appellant prying the window open and crawling into Ms. Luther’s house. The State asked the court to take judicial notice of the no contact order.
Tracy Toner testified as the probation manager of Pasco County Misdemeanor Probation. Ms. Toner testified that Appellant was placed on concurrent probation on November 28, 2006 for Case No. 06-5378MM (battery and violation of pretrial release); 06-7687MM (violation of pretrial release); 06-3865MM (battery); and 06-3972MM (violation of pretrial release). The defense objected on hearsay grounds. The State attempted to establish a business records exception. After several questions by the State, the trial court commented, “How would she know that? It’s not an element of the business records exception.” The State explained that he was not sure which prong was missing. The trial court replied that he was missing several prongs and explained that the State needed to establish that they were made in the regular course of their business; about the time that the incident being reported occurred; and by a person that would have knowledge of what they were reporting. The State asked the requisite questions for the trial court to find that they fell within the business records exception.
Ms. Toner testified that Appellant was placed on probation for all four cases. He was ordered to pay court costs, complete a batterers’ intervention program, report to probation monthly, and pay $40 a month for cost of supervision. Appellant reported to probation three times, but failed to report on July 19, 2007, September 27, 2007, and October 2007. Appellant did not pay the cost of supervision fees, nor did he enroll in or complete the batterers’ intervention program. Ms. Toner was not Appellant’s probation officer, but her file indicated that Appellant was incarcerated in April and May of 2007. At the end of the hearing, the trial court found Appellant was in violation of his probation for all the allegations.
LAW AND ANALYSIS
Appellant appeals the trial court’s order revoking his probation. Appellant argues that the trial court committed reversible error by aiding the State in its efforts to prove Appellant’s violation of probation. Appellant also contends that the trial court erred by finding a willful and substantial violation of Appellant’s probation based on the victim’s testimony. As such, Appellant challenges the sufficiency of the evidence adduced at the hearing to support the revocation. We find that the trial court did not commit reversible error when it interjected during the hearing and that sufficient evidence was presented to support the trial court’s finding that Appellant willfully and substantially violated his probation.
The trial court did not commit reversible error by interjecting during the violation of probation hearing. Trial court judges are afforded great latitude in controlling the proceedings and witnesses in the courtroom. Fogelman v. State, 648 So. 2d 214, 219 (Fla. 4th DCA 1994). A trial court judge may also ask questions to clarify ambiguous testimony. McFadden v. State, 732 So. 2d 1180, 1185 (Fla. 4th DCA 1999). In addition, a trial court judge in a violation of probation proceeding may ask witnesses questions relevant to the issues being tried. Merchan v. State, 495 So. 2d 855, 856 (Fla. 4th DCA 1986). In this case, the trial court did not act beyond maintaining control of the proceedings and witnesses, or beyond conducting the proceedings in an orderly manner.
Even if the trial court judge went beyond acting as a neutral arbitrator and finder of fact, any error was harmless. While the trial court judge posed questions to a hostile and difficult witness, who gave confusing, incomplete, and non-responsive answers, the prosecutor had already asked the same or substantially similar questions. In addition, the trial court judge addressed evidentiary issues that developed and even prevented the prosecutor from eliciting testimony from Tracy Toner due to possible hearsay implications, despite a lack of specific objection by the defense attorney. Even had all the evidence which Appellant claims to have been objectionable were excluded, there was sufficient evidence for the trial court to find that Appellant willfully and substantially violated his probation. Any error is harmless, as there is no reasonable possibility that any of the claimed errors affected the verdict. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).
Next, Appellant argues that the trial court improperly found that Appellant willfully and substantially violated Appellant’s probation based on the victim’s testimony. Appellant also challenges the sufficiency of the evidence to support the revocation. This court finds, however, there was sufficient evidence in the form of testimony alone to establish that Appellant willfully and substantially violated the conditions of probation.
The victim’s testimony provided sufficient evidence that Appellant willfully and substantially violated his probation by committing domestic battery and violating his pretrial release. Michelle Luther testified that on October 17, 2007, Appellant hit her. In addition, Ms. Luther testified that Appellant came into her house uninvited on October 31, 2007. This constituted direct evidence that Appellant committed battery and violated his pretrial release.
Although the victim’s testimony was sufficient to support the revocation of Appellant’s probation, other evidence corroborated it. Michelle Luther also read her written statements, which indicated that Appellant punched her three times in the jaw and hit her in the face causing a bloody nose on October 17, 2007. Appellant contends that this testimony was hearsay. Hearsay is admissible at a revocation hearing; however, a revocation cannot be based solely on hearsay evidence. Hedgespeth v. State, 786 So. 2d 1286, 1287 (Fla. 2d DCA 2001). Since Ms. Luther provided direct testimony that was sufficient to revoke Appellant’s probation, the trial court could properly find that Appellant violated his probation by committing battery and violating the terms of his pretrial release.
Officer Campbell’s testimony also supported the factual allegations of the new law violation and the violation of Appellant’s pretrial release. He testified that on October 31, 2007, Michelle Luther was screaming and yelling because she was afraid of Appellant because he had entered her house and was after her. Officer Campbell also testified to hearsay statements that a neighbor observed Appellant at Michelle Luther’s house, which are also admissible. Finally, and most significantly, Officer Campbell testified that he had personally caught Appellant sneaking into Michelle Luther’s house in direct violation of his pretrial release. Officer Campbell’s testimony alone would have also been sufficient for the trial court to have found that Appellant willfully and substantially violated his probation.
A third witness, Tracy Toner, testified in her capacity as custodian of records for the Pasco County Misdemeanor Probation Office. She testified that the records contained no documentation that Appellant enrolled in or completed the Batterers’ Intervention Program. Appellant did not pay supervision fees and did not report to probation on several occasions. Her testimony alone was sufficient to sustain a finding that Appellant violated his probation. Even had Ms. Toner’s testimony been excluded, the direct evidence from Ms. Luther or Officer Campbell would have been sufficient to revoke Appellant’s probation. The trial court’s order should be affirmed. Therefore, it is
ORDERED AND ADJUDGED that the trial court’s order revoking Appellant’s probation is hereby AFFIRMED.
DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 3rd day of January 2011.
Original order entered on January 3, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.