# FILED
June 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1997 SESSION

STATE OF TENN ESSEE, ) ) 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 & Repor ter P.O. Box 84 Knoxville, Tennessee 37901- 0084 SANDY R. COPOUS

Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, Tennessee 37243- 0493 JAMES N. RA

MSEY District Attorney General JAN HICKS Assistant District A

ttorney General 127 Anderson County Courthouse 100 North Main Street Clinton, TN 37716

OPINION FILED: _________________

AFFIRMED

JOE G. RILEY, JUDGE
OPINION2 The defendant, Jamann T . Booker, appeals the trial court’s decision to revoke his probation. Defendant pled g uilty to five counts of the sale of cocaine and received an effective sentenc e of eight years in the Tennes see Department of Correction. After serv

ing a portion of his sentence and completing “boot camp,” he was placed on intensiv e supervised probation. While on probation, defendant was arrested on another two c ounts of selling cocaine. D ue to this arrest, a probati on violation warrant was issued. A probation revocation hearing was subsequently held wherein the trial cour

t revoked defendant’s probation. After filing timely noti ce of appeal, defendant presents two i ssues for our review: 1) w

hether testimony by poli ce officers regarding st atements allegedly made by the confidential informant cons tituted unreliable hearsay and were, therefore, inadmissible; and 2) whe ther the defendant’s constitutional right to confrontation w as violated by allow

ing police officers to testi fy as to remarks made by a c onfidential informant which were s imultaneously being monit ored by electronic tr

ansmitter. We AFFIRM the judgment of the trial court

.

FACTS The facts involved in thi s probation revocation appeal stem from an undercover drug operat ion conducted by the Oak Ri dge Police Department (OR PD). The ORPD employed a confid ential in forman t to make drug purch ases. On t wo separate occasions, December 12, 1995, and January 24, 1996, the confidential informant came into contact with the defendant. Each transaction w as monitored by police officers by personal observation and/or throug h electronic transmitter or wire. The December 12 transaction w as supervised by Ser

geant Mike Uher of the ORPD. He stated that he met with the confidential informa nt, placed an electronic monitoring device on hi m and gave him $300 for drug p urchases. After searching him and his vehicle for any contraband, he sent the informa nt to purchase crack cocaine.3 Sgt.Uher was in anothe r vehicle which was equipped with a receiver and positioned atop a hill so that he could survey the ar ea. He watched the defendant and the informant meet and pull their cars up next to each other. He then heard them agree to drive arou nd the block which he beli eved to be standard languag e for initiating a drug deal . After identifying the defendant’ s and the informant’s voice, he summarized the conversation he heard through the elect ronic monitoring devi ce. The informant indicated he wished to purchase $200 worth of coc aine. Defendant stated he wanted to dri ve around the block. Sg t. Uher observed the vehicles drive ar

ound the block. The defendant subsequentl y exited his vehi cle and entered the informant’s vehicle where the transacti on took place. Sgt. Uher stated he then heard the informant say “ [those] were large pi eces and that he wanted $200 worth, could he come back and get more an additional time ...” The defendant stated that he wanted to be dr opped off at his vehicle after the transaction. The informant later met Sgt. Uher at a pre-arr

anged location and turned over the drugs. Sgt. Uher stated that the Ja nuary 24 transaction w as set up similarly to the December 12 transaction; how ever, they utiliz

ed an undercover vehicle instead of the informant’s personal vehicle. Officer Michael Jackson of th e 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 def endant’s vehicle and requested $100 worth of crack cocain e. The informant indicated “that that looked good.” The extent of defendant’s response was “y es,” “o-kay,” “no, ” and “my car.” Because he was in the car with the informant, Officer Jackson person ally observed the informant enter the defendant’s vehicle and sit i n the back seat behind the defendant. Although Officer Jacks on did not actually see the drugs exchanged, the vehicles were p

arked in such close prox imity that he saw hand mov ements that were consistent wi

th a money and drug exchan ge. The drugs were l ater turned over to Sgt. Uher.4 Carl Smith, a Tennessee Bureau of Inv estigation (TBI) chemist,analyzed the substances given to Sg t. Uher from the above transac tions. He testified that the substances tested positiv e for cocaine base or “crack ” cocaine. The defend ant did not of fer any proof a t the hearing.

HEARSAY ISSUE
The defendant argues that the police officer ’s testimony regardi ng statements allegedly made by the confidential informant constituted unr eliable hearsay. In effect, the defendant claims that Sgt. Uhe r’s testimony summariz ing the conversation overheard while monit

oring 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 prov e the truth of the matter asserted. Tenn. R. Evid. 801(c). H earsay evidence, how ever, is admissible i n a probation revocation hearing s

o long as it is not show n to be so unreliable as to v iolate due process. State v. Wade , 863 S.W.2d 406, 40 9-10 (Tenn. 1993). After a thorough review of the record, we find that the s tatements made by the confidential informant and repeated by Sgt. Uher were not o

ffered to prove the truth of the matters asserted. They w ere clearly made for the pur pose of providing the defendant , a wil ling dr

ug deal er, with a cust

omer and

merely depicte d one sid e 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. fil ed August 11, 1993, at Knoxv ille). 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 pa rticipation in the drug transaction. Tenn. R . App. P. 36(b). The evidenc e of the violation was sufficient , even without the in formant’s sta tements, to e stablish that th e trial judge exercised conscientio us judgment. State v. Leach , 914 S.W.2d 104 (Tenn . Crim.5

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 A DVERSE WITNESS
Since the only actual ey ewitness to the alleg ed drug sales was the confidential informant who was not cal led as a witness, the defendant contends admission of the officer’s testimony viol ated his constitutional ri ght to confront an adverse w itness. It should be noted at the outset that while closely related to evidentiary issues, confrontation issues are analy zed differently. Both the U nited States and the Tennessee Constitutions afford protections which enable a defendant to c onfront an adverse witness. U .S. Const. amend. VI; Tenn. Const. ar t. I, §9. Generally, a probationer is entitled to the same protection unless the trial judge ma kes a specific finding of good cause for denyi ng the right. Wade , 863 S.W.2d at 409. Confrontation Clause analysis does not apply to the proof prese nted in this
case. Martin , ___ S.W.2d at ___; Jones , 598 S.W.2d at 223. It is impo rtant to stress that Sgt. Uher and Officer Jackson testified regarding what they visually and audibly perceived in both drug

transactions. They wi

tnessed the confidential informant and the defendant engage in activ ities they believed to be the sale of drugs. They observed the informant enter defenda nt’s car and return with what was positively identified as “crack” coc aine. The testimony via the electronic wire pertaining to the comments made by the confidential info rmant was not substantive evidence. It, in effect, was not a “witness against” the defendant and rais es no Confrontation Clause concerns. Tennessee v. Street , 471 U.S. 407, 414 (1985). After the defense closing arg ument emphasizing the rig ht to confront, the trial court stated: “I have unr efuted proof he re that th e same ac tivity

that [defendant] was sent to the peni tentiary on, and I hope frankly that [defendant] can m aybe 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 ev en thoug h there m ay hav e been a r

ight of6 confrontation with the confidential informa nt, that this Court allowed that informat ion in just simply to corroborate what I had i n the way of direct proo f on a probation hearing . . . “ The trial court clearly

viewed the questi onable 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, JUD GE

____________________________ CHRIS CRAFT, SPECIAL JU DGE