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
APPELLATE DIVISION
JAMISON NEAL KLOD,
Appellant,
UCN: 51-2008-CF002718A000WS
v. Case
No: CRC0802718CFAWS
Lower
No: 06-3865MMAWS
06-3972MMAWS
06-5378MMAWS
STATE OF FLORIDA, 06-7687MMAWS
Appellee.
_____________________________/
Appeal from Pasco County Court
County
Judge Marc H. Salton
Lynda
Beth Barack, Esq.
for Appellant
Bryan Sarabia, A.S.A.
for Appellee
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.
FACTUAL
BACKGROUND
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.