IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1999 FILED March 17, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9805-CR-00232 Appellee ) ) SUMNER COUNTY vs. ) ) Hon. Jane Wheatcraft, Judge FREDERICK NEBLETT, ) ) (Community Corrections Appellant ) Revocation)
For the Appellant: For the Appellee:
Regan L. Rudland John Knox Walkup Asst. Public Defender Attorney General and Reporter 117 East Main Street Gallatin, TN 37066 Clinton J. Morgan Assistant Attorney General David Allen Doyle Criminal Justice Division District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Lawrence Ray Whitley District Attorney General
Dee Gay Asst. District Attorney General Cordell Hull Building Gallatin, TN 37066
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Frederick Neblett, appeals the judgment of the Sumner
County Criminal Court revoking his Community Correction sentence and reinstating
the original sentence of four years in the Department of Correction.1 Specifically,
the appellant contends that the trial court improperly relied upon “unreliable
hearsay,” an uncertified facsimile transmission of an arrest warrant, as the sole
basis for revoking the appellant from his non-incarcerative status.
After a review of the record, we affirm the judgment of the trial court.
Background
On March 12, 1998, a warrant issued alleging that the appellant had violated
the terms and conditions of his Community Correction sentence. Specifically, the
warrant alleged that the appellant had violated Rule #6 which states:
the offender shall obey the laws of the United States and the State of Tennessee as well as any municipal ordinances. Report all arrests, including traffic citations regardless of disposition to the case officer; In that Mr. Neblett was arrested in Nashville, Tennessee for Possession of Cocaine N458697, Possession of paraphernalia N458698, Driving on a suspended license N458699.
A revocation hearing was held on April 21, 1998, at which time the State
presented the testimony of Carlton Drumwright, the appellant’s Community
Correction case officer. Mr. Drumwright stated that, on February 27, the appellant
was arrested in Davidson County. On March 2, the appellant contacted him to
inform him that he had “accepted a plea bargain and that he would be receiving 16
1 The appellant’s placement in the Community Correction program stems from his October 16, 1997, guilty plea to the offense of theft of property over $1,000, resulting in a four year sentence in Community Correction after service of one hundred and seven days in the Sumner Cou nty Ja il.
2 days in jail.” The State then introduced, through the testimony of Mr. Drumwright, a
facsimile transmission of the Davidson County warrant charging the appellant with
possession of cocaine to which the appellant pled guilty. Defense counsel objected
to the introduction of the warrant on the basis that the warrant was an uncertified
facsimile copy. Mr. Drumwright then explained that the Davidson County Clerk’s
Office had “faxed” the warrants to Judge Wheatcraft’s facsimile machine. The trial
court authenticated the facsimile copies by verifying the appellant’s social security
number and birthdate and admitted the facsimile of the arrest warrant into evidence.
In so ruling, the trial court stated “I’m going to allow that, but, really, they should be
certified copies. We should not get in the habit of using fax copies.” The State then
offered to obtain certified copies of the arrest warrants which the court declined. No
further proof was presented.
The trial court found that the evidence presented showed “by a
preponderance of the evidence that the appellant has received these convictions.”
Continuing, the court stated:
He didn’t last on probation even 30 days. This Court just can’t tolerate people being placed on community corrections or probation and blatantly going out and picking up new charges.
I’m going to revoke the defendant’s probation and allow the four year sentence to go into effect.
Analysis
Again, the appellant contends that the trial court abused its discretion by
basing its decision to revoke the appellant’s Community Correction sentence solely
on the basis of unauthenticated and uncertified facsimile documents. Thus, the
question before this court is whether the facsimile copy of the Davidson County
arrest warrant was properly admitted by the trial court.
3 Before any real and demonstrative evidence is admissible, the evidence must
be properly authenticated, i.e., it must be shown to be genuine. See Tenn. R. Evid.
901. In other words, the proponent of its admission bears the burden of
demonstrating that the object is what it is claimed to be. Without such a showing
that the object is what it is claimed to be, the object is simply irrelevant as there
must be a logical nexus between the evidence and the point on which it is offered.
The proponent’s burden is satisfied when the trier of fact has sufficient proof to
determine that the evidence is what its proponent claims. See Tenn. R. Evid. 901.
See also State v. Byrd, No. 01C01-9609-CC-00411 (Tenn. Crim. App. at Nashville,
May 1, 1998).
While a properly certified copy of a public record is self-authenticating under
Tenn. R. Evid. 902(4),2 an uncertified public record may be authenticated if certain
conditions are satisfied.3 See Tenn. R. Evid. 901(b)(7).
First, the writing must be recorded or filed in a public office. Second, the recording or filing of the writing must be authorized by law. Third, it must be demonstrated to the court’s satisfaction that the proffered writing is in fact ‘from the public office where items of this nature are kept.’
NEIL P. COHEN ET AL ., TENNESSEE LAW OF EVIDENCE § 901.8 (3D ed. 1995).
However, testimony must be presented by an individual with personal knowledge
that the particular writing or record meets the requirements of the Rule. In the
present case, we cannot conclude that a Community Correction case officer has
2 W hen a doc um ent is said t o be s elf-a uthe ntica ting it d oes not n ece ssa rily me an th at it is irrebuttably presumed to be genuine. Self-authentication merely means that the proponent does not h ave to prod uce extrin sic ev idenc e of a uthe nticity.
Had the Davidson County warrant been certified in the present case, there would be no question as to the facsimile’s admission. Indeed, the certified copy would be an original for purposes of the rules governing the admissibility of documents, the facsimile would constitute a duplicate, and there is no indication that it would be unfair to admit the duplicate in lieu of the original. See gene rally Tenn . R. Evid. 90 2, 1001, 1 003, 100 5. See also Englun d v. State , 907 S.W .2d 937, 9 38-939 (Tex. A pp. 1995 ), aff’d by, 946 S.W .2d 64 (Tex. App. 1997) ( en banc).
3 It is of little consequence whether the un certified public record is the original or a facsim ile transm ission ther eof, as a trustworth y duplicate w ill suffice. See gene rally Tenn. R. Evid. 1003.
4 sufficient personal knowledge to establish the necessary criteria under Tenn. R.
Evid. 901 (b)(7).
Notwithstanding the inability of Mr. Drumwright to authenticate the facsimile
transmission of a Davidson County arrest warrant, we note that, in Tennessee, as
elsewhere, it is generally recognized that there is a wide distinction between a
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY SESSION, 1999 FILED March 17, 1999
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9805-CR-00232 Appellee ) ) SUMNER COUNTY vs. ) ) Hon. Jane Wheatcraft, Judge FREDERICK NEBLETT, ) ) (Community Corrections Appellant ) Revocation)
For the Appellant: For the Appellee:
Regan L. Rudland John Knox Walkup Asst. Public Defender Attorney General and Reporter 117 East Main Street Gallatin, TN 37066 Clinton J. Morgan Assistant Attorney General David Allen Doyle Criminal Justice Division District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Lawrence Ray Whitley District Attorney General
Dee Gay Asst. District Attorney General Cordell Hull Building Gallatin, TN 37066
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Frederick Neblett, appeals the judgment of the Sumner
County Criminal Court revoking his Community Correction sentence and reinstating
the original sentence of four years in the Department of Correction.1 Specifically,
the appellant contends that the trial court improperly relied upon “unreliable
hearsay,” an uncertified facsimile transmission of an arrest warrant, as the sole
basis for revoking the appellant from his non-incarcerative status.
After a review of the record, we affirm the judgment of the trial court.
Background
On March 12, 1998, a warrant issued alleging that the appellant had violated
the terms and conditions of his Community Correction sentence. Specifically, the
warrant alleged that the appellant had violated Rule #6 which states:
the offender shall obey the laws of the United States and the State of Tennessee as well as any municipal ordinances. Report all arrests, including traffic citations regardless of disposition to the case officer; In that Mr. Neblett was arrested in Nashville, Tennessee for Possession of Cocaine N458697, Possession of paraphernalia N458698, Driving on a suspended license N458699.
A revocation hearing was held on April 21, 1998, at which time the State
presented the testimony of Carlton Drumwright, the appellant’s Community
Correction case officer. Mr. Drumwright stated that, on February 27, the appellant
was arrested in Davidson County. On March 2, the appellant contacted him to
inform him that he had “accepted a plea bargain and that he would be receiving 16
1 The appellant’s placement in the Community Correction program stems from his October 16, 1997, guilty plea to the offense of theft of property over $1,000, resulting in a four year sentence in Community Correction after service of one hundred and seven days in the Sumner Cou nty Ja il.
2 days in jail.” The State then introduced, through the testimony of Mr. Drumwright, a
facsimile transmission of the Davidson County warrant charging the appellant with
possession of cocaine to which the appellant pled guilty. Defense counsel objected
to the introduction of the warrant on the basis that the warrant was an uncertified
facsimile copy. Mr. Drumwright then explained that the Davidson County Clerk’s
Office had “faxed” the warrants to Judge Wheatcraft’s facsimile machine. The trial
court authenticated the facsimile copies by verifying the appellant’s social security
number and birthdate and admitted the facsimile of the arrest warrant into evidence.
In so ruling, the trial court stated “I’m going to allow that, but, really, they should be
certified copies. We should not get in the habit of using fax copies.” The State then
offered to obtain certified copies of the arrest warrants which the court declined. No
further proof was presented.
The trial court found that the evidence presented showed “by a
preponderance of the evidence that the appellant has received these convictions.”
Continuing, the court stated:
He didn’t last on probation even 30 days. This Court just can’t tolerate people being placed on community corrections or probation and blatantly going out and picking up new charges.
I’m going to revoke the defendant’s probation and allow the four year sentence to go into effect.
Analysis
Again, the appellant contends that the trial court abused its discretion by
basing its decision to revoke the appellant’s Community Correction sentence solely
on the basis of unauthenticated and uncertified facsimile documents. Thus, the
question before this court is whether the facsimile copy of the Davidson County
arrest warrant was properly admitted by the trial court.
3 Before any real and demonstrative evidence is admissible, the evidence must
be properly authenticated, i.e., it must be shown to be genuine. See Tenn. R. Evid.
901. In other words, the proponent of its admission bears the burden of
demonstrating that the object is what it is claimed to be. Without such a showing
that the object is what it is claimed to be, the object is simply irrelevant as there
must be a logical nexus between the evidence and the point on which it is offered.
The proponent’s burden is satisfied when the trier of fact has sufficient proof to
determine that the evidence is what its proponent claims. See Tenn. R. Evid. 901.
See also State v. Byrd, No. 01C01-9609-CC-00411 (Tenn. Crim. App. at Nashville,
May 1, 1998).
While a properly certified copy of a public record is self-authenticating under
Tenn. R. Evid. 902(4),2 an uncertified public record may be authenticated if certain
conditions are satisfied.3 See Tenn. R. Evid. 901(b)(7).
First, the writing must be recorded or filed in a public office. Second, the recording or filing of the writing must be authorized by law. Third, it must be demonstrated to the court’s satisfaction that the proffered writing is in fact ‘from the public office where items of this nature are kept.’
NEIL P. COHEN ET AL ., TENNESSEE LAW OF EVIDENCE § 901.8 (3D ed. 1995).
However, testimony must be presented by an individual with personal knowledge
that the particular writing or record meets the requirements of the Rule. In the
present case, we cannot conclude that a Community Correction case officer has
2 W hen a doc um ent is said t o be s elf-a uthe ntica ting it d oes not n ece ssa rily me an th at it is irrebuttably presumed to be genuine. Self-authentication merely means that the proponent does not h ave to prod uce extrin sic ev idenc e of a uthe nticity.
Had the Davidson County warrant been certified in the present case, there would be no question as to the facsimile’s admission. Indeed, the certified copy would be an original for purposes of the rules governing the admissibility of documents, the facsimile would constitute a duplicate, and there is no indication that it would be unfair to admit the duplicate in lieu of the original. See gene rally Tenn . R. Evid. 90 2, 1001, 1 003, 100 5. See also Englun d v. State , 907 S.W .2d 937, 9 38-939 (Tex. A pp. 1995 ), aff’d by, 946 S.W .2d 64 (Tex. App. 1997) ( en banc).
3 It is of little consequence whether the un certified public record is the original or a facsim ile transm ission ther eof, as a trustworth y duplicate w ill suffice. See gene rally Tenn. R. Evid. 1003.
4 sufficient personal knowledge to establish the necessary criteria under Tenn. R.
Evid. 901 (b)(7).
Notwithstanding the inability of Mr. Drumwright to authenticate the facsimile
transmission of a Davidson County arrest warrant, we note that, in Tennessee, as
elsewhere, it is generally recognized that there is a wide distinction between a
revocation proceeding and a trial where the questions of guilt or innocence are at
issue. At a revocation hearing, the strict rules of evidence do not apply. See Byrd,
No. 01C01-9609-CC-00411 (citing State v. Allen, 752 S.W.2d 515 (Tenn. Crim.
App. 1988); Barker v. State, 483 S.W.2d 586 (Tenn. Crim. App. 1972)). Reliable
hearsay is admissible so long as the defendant had a fair opportunity to rebut the
evidence and the evidence otherwise was not introduced in violation of constitutional
notions of due process. See Tenn. Code Ann. § 40-35-209(b) (1997); see also
State v. Carney, 752 S.W.2d 513 (Tenn. Crim. App. 1988). See, e.g., State v.
Whitehead, No. 86-220-III (Tenn. Crim. App. at Nashville, Mar. 17, 1987), perm. to
appeal denied, (Tenn. Jun. 1, 1987) (arrest report admissible in determining
probation revocation).
In the present case, the trial court was careful to assure that the hearsay
document that was introduced was reliable. Before considering the testimony, the
court questioned the witness to assure that the Davidson County arrest warrant was
issued for the appellant by confirming the appellant’s name, date of birth, and social
security number. The facsimile transmission also contained a machine notation
showing the date, time, source telephone number, and source location of the
transmittal, i.e., “Metro Crim Court Clerk Fax: 615-862-5676 Apr 21 ‘98 12:11,”
verifying that the transmission had indeed been sent by the Davidson County Clerk’s
Office. Additionally, the truth of the matter asserted in the transmission was
corroborated by Mr. Drumwright’s testimony that the appellant had reported his
arrest and guilty plea on the misdemeanor possession charge to Mr. Drumwright.
5 Finally, we note that the appellant was provided ample opportunity to cross-examine
Mr. Drumwright regarding the documents, and, otherwise had ample opportunity to
refute the evidence.
Given the less stringent application of the evidentiary rules at revocation
proceedings, we conclude that the evidence presented by the case officer was
reliable hearsay and that good cause existed to allow its introduction. Accordingly,
the trial court was justified in relying upon the facsimile transmission of the Davidson
County arrest warrant; a sufficient basis upon which to allow the trial court to find
that the appellant had violated a condition of his Community Correction sentence by
a preponderance of the evidence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). The judgment of the trial court is affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
___________________________________ JAMES CURWOOD WITT, JR., Judge
___________________________________ JOHN EVERETT W ILLIAMS, Judge