IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
APRIL 1997 SESSION
FILED
June 24, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9607-CC-00273
Appellee, )
) ANDERSON COUNTY
VS. )
) HON. JAMES B. SCOTT, JR.
) JUDGE
JAMANN T. BOOKER, )
) (Probation Revocation)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
KENNETH F. IRVINE, JR. JOHN KNOX WALKUP
606 W. Main Street, Ste. 350 Attorney General & Reporter
P.O. Box 84
Knoxville, Tennessee 37901-0084 SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
JAMES N. RAMSEY
District Attorney General
JAN HICKS
Assistant District Attorney General
127 Anderson County Courthouse
100 North Main Street
Clinton, TN 37716
OPINION FILED: _________________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jamann T. Booker, appeals the trial court’s decision to revoke
his probation. Defendant pled guilty to five counts of the sale of cocaine and
received an effective sentence of eight years in the Tennessee Department of
Correction. After serving a portion of his sentence and completing “boot camp,” he
was placed on intensive supervised probation. While on probation, defendant was
arrested on another two counts of selling cocaine. Due to this arrest, a probation
violation warrant was issued. A probation revocation hearing was subsequently held
wherein the trial court revoked defendant’s probation.
After filing timely notice of appeal, defendant presents two issues for our
review: 1) whether testimony by police officers regarding statements allegedly made
by the confidential informant constituted unreliable hearsay and were, therefore,
inadmissible; and 2) whether the defendant’s constitutional right to confrontation was
violated by allowing police officers to testify as to remarks made by a confidential
informant which were simultaneously being monitored by electronic transmitter.
We AFFIRM the judgment of the trial court.
FACTS
The facts involved in this probation revocation appeal stem from an
undercover drug operation conducted by the Oak Ridge Police Department (ORPD).
The ORPD employed a confidential informant to make drug purchases. On two
separate occasions, December 12, 1995, and January 24, 1996, the confidential
informant came into contact with the defendant. Each transaction was monitored by
police officers by personal observation and/or through electronic transmitter or wire.
The December 12 transaction was supervised by Sergeant Mike Uher of the
ORPD. He stated that he met with the confidential informant, placed an electronic
monitoring device on him and gave him $300 for drug purchases. After searching
him and his vehicle for any contraband, he sent the informant to purchase crack
cocaine.
2
Sgt.Uher was in another vehicle which was equipped with a receiver and
positioned atop a hill so that he could survey the area. He watched the defendant
and the informant meet and pull their cars up next to each other. He then heard
them agree to drive around the block which he believed to be standard language for
initiating a drug deal. After identifying the defendant’s and the informant’s voice, he
summarized the conversation he heard through the electronic monitoring device.
The informant indicated he wished to purchase $200 worth of cocaine.
Defendant stated he wanted to drive around the block. Sgt. Uher observed the
vehicles drive around the block. The defendant subsequently exited his vehicle and
entered the informant’s vehicle where the transaction took place. Sgt. Uher stated
he then heard the informant say “[those] were large pieces and that he wanted $200
worth, could he come back and get more an additional time ...”
The defendant stated that he wanted to be dropped off at his vehicle after the
transaction. The informant later met Sgt. Uher at a pre-arranged location and turned
over the drugs.
Sgt. Uher stated that the January 24 transaction was set up similarly to the
December 12 transaction; however, they utilized an undercover vehicle instead of the
informant’s personal vehicle. Officer Michael Jackson of the Athens Police
Department was the driver. Sgt. Uher testified regarding the transmissions he heard
over the wire on this occasion. He stated the informant entered the defendant’s
vehicle and requested $100 worth of crack cocaine. The informant indicated “that
that looked good.” The extent of defendant’s response was “yes,” “o-kay,” “no,” and
“my car.”
Because he was in the car with the informant, Officer Jackson personally
observed the informant enter the defendant’s vehicle and sit in the back seat behind
the defendant. Although Officer Jackson did not actually see the drugs exchanged,
the vehicles were parked in such close proximity that he saw hand movements that
were consistent with a money and drug exchange. The drugs were later turned over
to Sgt. Uher.
3
Carl Smith, a Tennessee Bureau of Investigation (TBI) chemist, analyzed the
substances given to Sgt. Uher from the above transactions. He testified that the
substances tested positive for cocaine base or “crack” cocaine.
The defendant did not offer any proof at the hearing.
HEARSAY ISSUE
The defendant argues that the police officer’s testimony regarding statements
allegedly made by the confidential informant constituted unreliable hearsay. In
effect, the defendant claims that Sgt. Uher’s testimony summarizing the conversation
overheard while monitoring the alleged drug transaction requires the testimony of the
confidential informant. We disagree.
Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Tenn. R. Evid. 801(c). Hearsay evidence, however, is admissible in a probation
revocation hearing so long as it is not shown to be so unreliable as to violate due
process. State v. Wade, 863 S.W.2d 406, 409-10 (Tenn. 1993).
After a thorough review of the record, we find that the statements made by the
confidential informant and repeated by Sgt. Uher were not offered to prove the truth
of the matters asserted. They were clearly made for the purpose of providing the
defendant, a willing drug dealer, with a customer and merely depicted one side of a
drug transaction. See State v. Martin, ___ S.W.2d ___ (Tenn. 1997); State v. Jones,
598 S.W.2d 209 (Tenn. 1980); State v. George Harless, C.C.A. No. 03C01-9203-
CR-00105 (Tenn. Crim. App. filed August 11, 1993, at Knoxville).
Even if it was hearsay, it was reliable. Furthermore, it was harmless in light of
the other testimony of the officers which clearly shows defendant’s participation in
the drug transaction. Tenn. R. App. P. 36(b). The evidence of the violation was
sufficient, even without the informant’s statements, to establish that the trial judge
exercised conscientious judgment. State v. Leach, 914 S.W.2d 104 (Tenn. Crim.
4
App. 1995). The state is not required to prove the violation beyond a reasonable
doubt. Id. This issue is without merit.
RIGHT TO CONFRONT AN ADVERSE WITNESS
Since the only actual eyewitness to the alleged drug sales was the confidential
informant who was not called as a witness, the defendant contends admission of the
officer’s testimony violated his constitutional right to confront an adverse witness.
It should be noted at the outset that while closely related to evidentiary issues,
confrontation issues are analyzed differently. Both the United States and the
Tennessee Constitutions afford protections which enable a defendant to confront an
adverse witness. U.S. Const. amend. VI; Tenn. Const. art. I, §9. Generally, a
probationer is entitled to the same protection unless the trial judge makes a specific
finding of good cause for denying the right. Wade, 863 S.W.2d at 409.
Confrontation Clause analysis does not apply to the proof presented in this
case. Martin, ___ S.W.2d at ___; Jones, 598 S.W.2d at 223. It is important to stress
that Sgt. Uher and Officer Jackson testified regarding what they visually and audibly
perceived in both drug transactions. They witnessed the confidential informant and
the defendant engage in activities they believed to be the sale of drugs. They
observed the informant enter defendant’s car and return with what was positively
identified as “crack” cocaine. The testimony via the electronic wire pertaining to the
comments made by the confidential informant was not substantive evidence. It, in
effect, was not a “witness against” the defendant and raises no Confrontation
Clause concerns. Tennessee v. Street, 471 U.S. 407, 414 (1985).
After the defense closing argument emphasizing the right to confront, the trial
court stated:
“I have unrefuted proof here that the same activity
that [defendant] was sent to the penitentiary on,
and I hope frankly that [defendant] can maybe turn his
conduct in such a way that he wouldn’t do this, but there’s
so much money involved in drugs, and this appears
that even though there may have been a right of
5
confrontation with the confidential informant, that this
Court allowed that information in just simply to
corroborate what I had in the way of direct proof on a
probation hearing . . . “
The trial court clearly viewed the questionable evidence as merely corrobative of the
direct proof implicating the defendant. The record supports the conclusions of the
trial court. If there was error, it was harmless. Tenn. R. App. P. 36(b). This issue is
without merit.
The judgment of the trial court is AFFIRMED.
_____________________________
JOE G. RILEY, JUDGE
CONCUR:
___________________________
JERRY L. SMITH, JUDGE
____________________________
CHRIS CRAFT, SPECIAL JUDGE
6