State of Tennessee v. Jerome Nchiyako Dooley, Alias

                                                                                             12/26/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 19, 2023

    STATE OF TENNESSEE v. JEROME NCHIYAKO DOOLEY, ALIAS

                   Appeal from the Criminal Court for Knox County
                          No. 116372 G. Scott Green, Judge
                      ___________________________________

                            No. E2023-00881-CCA-R3-CD
                        ___________________________________


Defendant, Jerome Nchiyako Dooley, appeals the Knox County Criminal Court’s partial
revocation of his probation. He argues on appeal that: (1) the trial court revoked
Defendant’s probation on grounds not alleged in the warrant, in violation of due process;
(2) the State failed to prove that Defendant violated the terms of his probation; and (3) the
trial court violated Defendant’s due process rights by failing to act as a neutral and detached
magistrate. After review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JILL BARTEE AYERS
and TOM GREENHOLTZ, JJ., joined.

Eric M. Lutton, District Public Defender; and Jonathan Harwell (on appeal) and David
Skidmore (at hearing), Assistant Public Defenders, Knoxville, Tennessee, for the appellant,
Jerome Nchiyako Dooley.

Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Charme P. Allen, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                              Factual and Procedural History

                                         Guilty Plea
       The Defendant was indicted by the Knox County Grand Jury in 2019 with three
counts of rape. Defendant pleaded guilty to one count of sexual battery on March 3, 2023.
Defendant received an agreed sentence of five years as a Range III offender suspended to
probation.

                                     Revocation Proceedings

      On April 18, 2023, a probation violation warrant was issued that alleged Defendant
had been arrested for violating a no-contact order issued in Davidson County.1 The Knox
County Criminal Court held a probation revocation hearing on June 5 and 8, 2023.

        Metropolitan Nashville Police Department Officer Juan Carnesales testified at the
revocation hearing that he arrested Defendant on April 2, 2023, in connection with a
domestic disturbance in Davidson County. When Officer Carnesales and another officer
arrived at the scene, they made contact initially with Ms. Yanni Gardley, Defendant’s ex-
girlfriend. Ms. Gardley had called 911 because Defendant was threatening her while
holding a knife. Officer Carnesales discovered after a records check that Defendant was
on bond for an offense in Davidson County and that Defendant could not have contact with
Ms. Gardley as a bond condition.

       Defendant told Officer Carnesales that “not much went on.” Defendant told Officer
Carnesales that he and Ms. Gardley got into a “verbal altercation” and that he had a butcher
knife “at one point,” but denied that he threatened Ms. Gardley. Defendant told Officer
Carnesales that his attorney2 had told him the bond conditions were no longer in effect, and
Defendant was under the impression that he was allowed to stay at Ms. Gardley’s
residence. Officer Carnesales described Defendant’s statement regarding the effectiveness
of his bond conditions as “inaccurate” at the revocation hearing. Officer Carnesales
arrested Defendant for violating the no-contact provision of his bond. Officer Carnesales
conceded at the revocation hearing that he did not arrest Defendant for aggravated assault
at that time due to the conflicting stories and a lack of physical proof. Ms. Gardley,
however, was arrested for domestic assault because the officers noted injuries on
Defendant’s neck.

       Defendant testified on his behalf at the revocation hearing. Defendant stated that
his probation supervision was transferred to Nashville after he pleaded guilty to sexual



       1
          This no-contact order was not related to the sexual battery conviction for which Defendant was
on probation here. Rather, the no-contact order stemmed from a November 2022 aggravated assault charge
in Davidson County involving Ms. Gardley.
        2
          This statement did not refer to any of the attorneys involved in the Knox County proceedings.
                                                 -2-
battery in Knox County. According to Defendant, his probation officer told him that Ms.
Gardley’s house was the only place he could legally stay because of his sex offender status.

        Defendant testified that Ms. Gardley became upset on April 2 because he “had lied
to her about one of [his] friends in [his] phone.” Defendant had changed a female contact’s
name to a male name because Ms. Gardley “didn’t like the friend too much.” Defendant
claimed that Ms. Gardley started “beating on [him].” Defendant testified that he
contemplated suicide in that moment. Regarding his Davidson County bond conditions,
Defendant testified that it was his belief that “the judge down [in Davidson County] had
said the conditions were no longer in effect.”

        Defendant admitted on cross-examination that when he was arrested for aggravated
assault in November 2022, he tried to run away after being placed in a police cruiser.3
Defendant claimed he ran because if the police took him to jail then “Knox County [would]
kill [him].” Defendant also admitted on cross-examination that he was in a closet when
the police arrived on April 2—he contended that he was in the closet because he was
packing his belongings. Defendant admitted that he had further contact with Ms. Gardley
after April 2. Defendant admitted that he knew contacting Ms. Gardley was a violation of
the bond conditions.

       Defendant claimed he suffered from several mental health problems, which he
claimed stemmed from “[going] years with a charge over [his] head that [he] didn’t
commit,” referring to the rape allegations in this case. Defendant claimed that “[his] life
was completely ripped from [him]” because of the rape allegations. Defendant conceded
on cross-examination that he pleaded guilty to sexual battery, but characterized his plea as
“a deal [with] the devil.”

       At this point in the hearing, the trial court asked Defendant, “Who made you raise
your right hand, [Defendant], and say under oath, ‘I did this,’ who made you do that?”
Defendant stated if he had not pleaded guilty the trial court would have “lock[ed him]
away” and that the trial court would “never [have] let [Defendant] see the light of day
again.”

       The trial court asked Defendant about his phone conversations:




       3
         According to the record, Defendant’s November 2022 arrest for aggravated assault in Davidson
County was the basis for having his Knox County bond revoked. Defendant’s Knox County bond was
revoked shortly before he pleaded guilty to sexual battery in Knox County.
                                                -3-
       THE COURT: Have you spoken to [Ms. Gardley] since you have been back
       in the Knox County Jail after your arrest in – this most recent arrest in
       Nashville?

       [DEFENDANT]: Yes, sir.

       THE COURT: How many times?

       [DEFENDANT]: A couple.

       [THE PROSECUTOR]: Dozens.

       THE COURT: You understand every one of those calls are recorded? How
       many times?

       [DEFENDANT]: A nice amount of time[s].

       After a brief redirect examination, the trial court stated, “He’s not going to listen to
any order that any [c]ourt gives him, that much is obvious. Whether it’s me or a judge in
Nashville. He’s going to do what he wants to do in spite of what he’s ordered not to do.”
Defendant said, “I don’t think that’s a fair statement to make.” The trial court replied, “I
don’t really care if you think it’s fair. That’s what the reality of this case shows.”

       When Defendant stepped down from the witness stand, the trial court asked the
prosecutor how long it would take to get the recordings of Defendant’s phone calls from
the Knox County Jail. The prosecutor told the trial court it would take “[a] day or two.”
The trial court continued the hearing to June 8, stating that it “want[ed] every one of those
phone calls downloaded and made a part of this record.”

                              Revocation Hearing Continued

      When the hearing resumed on June 8, the trial court asked the prosecutor whether
he had obtained records of Defendant’s communications. The prosecutor stated that he
had and determined that Defendant had contacted Ms. Gardley 269 times since he was
booked into the Knox County Jail on April 17. A record of all calls, emails, and text
messages sent between Defendant and Ms. Gardley since Defendant was booked into the
Knox County Jail was made an exhibit to the hearing over defense objection.

       After argument from counsel for both parties, the trial court ordered the prosecutor
to contact the Davidson County General Sessions Court to obtain a copy of the no-contact
order. The trial court noted that it recalled seeing a no-contact order for Defendant during
                                             -4-
a bond revocation hearing that took place before Defendant’s guilty plea in this matter.
The prosecutor obtained the order and filed it as an exhibit to the hearing. Defendant did
not dispute the order’s validity.

       Defense counsel began to argue that the evidence at the hearing had gone outside
the scope of the allegations in the violation warrant but abandoned that argument and
conceded that Defendant’s contact with Ms. Gardley in violation of the no-contact order
was a material violation of the terms of his probation. Defense counsel asked the trial court
to “give [Defendant] another chance.” The trial court stated, “[Defendant] doesn’t feel like
he has to listen to me or any judge in Nashville that has imposed any restriction on him.
All he wants to do is talk about how we’ve all ruined his life.”

       After a lengthy statement from Defendant, the trial court found that Defendant had
materially violated the terms of his probation by contacting Ms. Gardley in violation of his
bond conditions. The trial court stated, “[Y]ou’re certainly not the first person who has
been seated where you’re seated or who’s walked through the doors of this courtroom that
doesn’t listen to what I have to say. My feelings are not hurt by it. I just accept that it’s a
part of what I do for a living.” The trial court imposed a split-confinement sentence in
which Defendant would serve one year in the Knox County Jail, after which he would be
reinstated to probation.

       Defendant appeals.

                                           Analysis

       Defendant raises three issues for our review. He argues that: (1) the trial court relied
on grounds not alleged in the warrant in revoking his probation; (2) the State failed to prove
that Defendant violated the terms of his probation; and (3) he was denied due process in
the form of a neutral and detached magistrate. We address each issue in turn.

                       Reliance on Grounds Not Alleged in Warrant

       Defendant argues that the trial court violated his due process rights by relying on
grounds not alleged in the probation violation warrant when the trial court revoked his
probation. The State argues that the trial court relied, at least in part, on the ground alleged
in the warrant. We agree with the State.

       Defendants are entitled to “minimum due process rights” in probation revocation
proceedings. State v. Yoc, No. M2018-00585-CCA-R3-CD, 

, at *5 (Tenn.
Crim. App. Feb. 11, 2020) (citing Gagnon v. Scarpelli, 

 (1973)), no perm.
app. filed. This includes written notice of the alleged violations. 

 However, actual
                                             -5-
notice suffices in the relaxed due process context of probation revocation proceedings. 

Generally, revoking a defendant’s probation “based on grounds not alleged and noticed to
the defendant is a violation of due process.” State v. Conyers, No. E2004-00360-CCA-R3-
CD, 

, at *4 (Tenn. Crim. App. Mar. 9, 2005), no perm. app. filed. That
said, “a trial court’s partial reliance on a ground for revocation not noticed to the defendant
is harmless ‘if the trial court also relied upon properly noticed grounds supported by the
evidence.’” State v. Munn, No. W2022-00675-CCA-R3-CD, 

, at *4
(Tenn. Crim. App. Mar. 23, 2023) (quoting State v. McGill, No. M2015-01929-CCA-R3-
CD, 

, at *4 (Tenn. Crim. App. July 18, 2016), no perm. app. filed), no
perm. app. filed.

        The probation violation warrant here alleged that Defendant had violated “Rule #1”
of the terms of his probation, which required him to obey the law. More specifically, the
warrant alleged that Defendant was arrested for violating the no-contact provision of his
Davidson County bond conditions. Officer Carnesales testified at the revocation hearing
about the events giving rise to Defendant’s arrest for violating the no-contact provision of
his bond conditions. When Defendant suggested at the hearing that the trial court had gone
outside of the grounds alleged in the warrant, the trial court recalled that “[t]he warrant
alleges that [Defendant] violated his probation by violating a no-contact order to wit the
testimony that we heard from the officer from Nashville . . . the other day.” Defendant
conceded that he had violated his probation.

        Defendant portrays the trial court’s decision to revoke his probation as exclusively
grounded in Defendant’s contact with Ms. Gardley after he had been transported to the
Knox County Jail. The record, however, does not bear this out. To be sure, the trial court
was properly concerned with the volume of Defendant’s contact with Ms. Gardley after he
arrived at the Knox County Jail. However, the transcript of the revocation hearing shows
that the trial court relied, at least in part, on the grounds alleged in the violation warrant in
revoking Defendant’s probation.

        Even if the trial court relied on Defendant’s post-arrest contact with Ms. Gardley in
revoking his probation, Defendant received actual notice of this ground. Defendant was
questioned on the first day of the hearing about his post-arrest contact with Ms. Gardley.
Defendant admitted that he knew the no-contact provision of his bond conditions was in
effect after April 2. As the State points out, there was no unfair surprise here because the
trial court continued the hearing, thus giving the parties another opportunity to address it.
See Stamps v. State, 

 (Tenn. Crim. App. 1980) (“[I]t would be
illogical to require a trial court to terminate a hearing on probation in order for written
notice to be given to a probationer whose evidence shows a violation of the terms of the
probation, especially where, as here, the trial judge advises the probationer of the intent of
the court to consider such matter at further hearings.”). Though written notice is preferable,
                                              -6-
Defendant was not prejudiced, misled, or surprised when his post-arrest contact with Ms.
Gardley became an issue at the hearing. See State v. Wolford, No. 03C01-9708-CR-00319,

, at *7 (Tenn. Crim. App. Feb. 18, 1999), perm. app. denied (Tenn. Sept.
20, 1999).

       The trial court relied, at least in part, on the grounds alleged in the violation warrant
in revoking Defendant’s probation. To the extent that the trial court relied on grounds not
alleged in the warrant, Defendant had actual notice of such grounds. Defendant received
due process with respect to this issue, and is not entitled to relief on this issue.

                                    Revocation Decision

        Defendant next argues that the State did not prove any violation of probation, and
the trial court abused its discretion in revoking his probation and ordering him to serve a
year in jail. The State counters that Defendant conceded to violating the terms of his
probation, and the trial court did not abuse its discretion in ordering a split-confinement
sentence. We agree with the State.

        Trial courts must perform a two-step inquiry in probation revocation decisions, both
of which are distinct discretionary decisions. State v. Dagnan, 

, 757 (Tenn.
2022) (citing T.C.A. §§ 40-35-308, -310, -311). The first step is to determine whether to
revoke the defendant’s probation. Id. The second involves the appropriate consequence.
Id. We review these decisions for “abuse of discretion with a presumption of
reasonableness so long as the trial court places sufficient findings and the reasons for its
decisions as to the revocation and the consequence on the record.” Id. at 759. “It is not
necessary for the trial court’s findings to be particularly lengthy or detailed but only
sufficient for the appellate court to conduct a meaningful review of the revocation
decision.” Id. (citing State v. Bise, 

 (Tenn. 2012)). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 

 (Tenn. 2010).

        Defendant presents two arguments that the no-contact provision of the bond
conditions was not in effect. First, Defendant argues that the no-contact order was facially
invalid because one of the boxes on the form was not checked. Next, he argues that the
no-contact order ceased to be effective when he was arrested because he was no longer on
bond. He presents these arguments, which were never advanced in the trial court, without
citation to any authority. These deficiencies result in waiver of Defendant’s arguments
here. See State v. Dobbins, 

 (Tenn. Crim. App. 1988) (“It is
elementary that a party may not take one position regarding an issue in the trial court,
                                             -7-
change his strategy or position in mid-stream, and advocate a different ground or reason in
this Court.”); Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not supported by . . . citation
to authorities . . . will be treated as waived in this [C]ourt.”).

       Defendant’s admissions at the revocation hearing support the trial court’s decision
to revoke his probation. Defendant argues in his reply brief that he did not concede that he
violated his probation. The hearing transcript, however, shows that this is simply untrue.
Defendant admitted in his testimony that he knew it was a violation of the bond conditions
for him to contact Ms. Gardley after his April 2 arrest. His counsel at the hearing, in an
apparent shift in strategy, conceded that Defendant had violated the terms of his probation
and began to argue that Defendant’s probation should be reinstated. Defendant’s
admissions alone constitute substantial evidence to support revocation. See State v. Pruitt,
No. E2015-01494-CCA-R3-CD, 

, at *4 (Tenn. Crim. App. June 8,
2016), no perm. app. filed. Additionally, the testimony from Officer Carnesales established
that Defendant had in-person contact with Ms. Gardley in violation of the no-contact order.
The trial court did not abuse its discretion in revoking Defendant’s probation.

      As to the second Dagnan prong, the trial court’s decision to confine Defendant for
one year was grounded in Defendant’s blatant and continued disobedience of court orders:

       [THE COURT:] The point is, is that he does not feel like he has to listen to
       anyone, including the person who is addressing you right now. He doesn’t
       feel like he has to listen to me or any judge in Nashville that has imposed any
       restriction on him. All he wants to do is talk about how we’ve all ruined his
       life.

       [. . .]

       [I]n order to make this system work, there has to be consequences, and you
       certainly understood at the time that you were taken into custody in Nashville
       that you could have no contact with Ms. Gardley. In spite of that, you
       contacted her 269 times after you were placed within the Knox County Jail
       on this revocation.

       The 5[-]year sentence heretofore probated is now revoked, ordered to
       execute, and [be] served. However, the same will be suspended after the
       service of one year within the Knox County Jail. Maybe that will get your
       attention.

The trial court’s statements are sufficient to facilitate our review and to justify the trial
court’s decision as to the consequence of revocation. See Dagnan, 641 S.W.3d at 759. The
                                             -8-
trial court was obviously concerned with Defendant’s amenability to correction in light of
his extensive post-arrest contact with Ms. Gardley, which Defendant knew at that point
violated the bond conditions. Defendant is not entitled to relief on this issue.

                             Neutral and Detached Magistrate

        Defendant finally argues that the trial court violated his due process rights by failing
to act as a neutral and detached magistrate. Defendant asserts that the trial court “generated
evidence” against him and “took on the role of the prosecutor[.]” The State argues that this
claim is waived, and Defendant is not entitled to plain-error relief. We agree with the State.

       One of the due process rights afforded to criminal defendants in the probation
revocation context is a neutral and detached magistrate. Gagnon, 

; State v.
Wade, 

 (Tenn. 1993). This does not, however, place a categorical bar
on the trial court asking questions of witnesses. See Tenn. R. Evid. 614(b) (“The court
may interrogate witnesses.”); State v. Odom, No. M2022-00756-CCA-R3-CD, 

, at *7 (Tenn. Crim. App. June 26, 2023), perm. app. denied (Tenn. Sept. 12,
2023); see also State v. Schiefelbein, 

 (Tenn. Crim. App. Feb. 8,
2007) (“So long as the inquiry is impartial, trial courts may ask questions to either clarify
a point or to supply any omission.”) (citations omitted).

       We note at the outset that Defendant did not object during the trial court’s
questioning and statements he now raises on appeal. See Tenn. R. Evid. 614(c)
(“Objections to . . . interrogation by [the court] may be made at the time or at the next
available opportunity when the jury is not present.”). This issue is thus waived for plenary
review. See Tenn. R. App. P. 36(a).

       Plain-error relief is appropriate when:

       (a) the record clearly establishes what occurred in the trial court; (b) a clear
       and unequivocal rule of law has been breached; (c) a substantial right of the
       accused has been adversely affected; (d) the accused did not waive the issue
       for tactical reasons; and (e) consideration of the error is “necessary to do
       substantial justice.”

State v. Martin, 

 (Tenn. 2016) (citations omitted); see also Tenn. R.
App. P. 36(b). “[T]he presence of all five factors must be established by the record before
this Court will recognize the existence of plain error, and complete consideration of all
the factors is not necessary when it is clear from the record that at least one of the factors
cannot be established.” Martin, 

 (quoting State v. Donald Smith, 

 (Tenn. 2000)). “If any one of these factors is not satisfied, we need not
                                             -9-
consider the remaining factors.” Martin, 

 (quoting State v. Michael
Smith, 

 (Tenn. 2016)).

        Defendant has failed to establish here that the trial court breached a clear and
unequivocal rule of law. See Martin, 

. The trial court knew that
Defendant had post-arrest contact with Ms. Gardley. The trial court’s questioning of
Defendant and order to obtain the jail records, was to clarify evidence already introduced
and remedy a perceived omission in the proof; as such, “it does not matter that the witness’
answers ‘bolstered the State’s position.’” Odom, 

, at *7 (quoting
Agostinho v. State, No. M2014-01928-CCA-R3-PC, 

, at *6 (Tenn.
Crim. App. Sept. 16, 2015), perm. app. denied (Tenn. Jan. 19, 2016)). The trial court
knew of the no-contact order, and Defendant did not dispute its validity at the hearing, so
the trial court’s directive to enter the order as an exhibit sought to clarify evidence already
introduced. Contrary to Defendant’s assertions, the trial court did not “generate[]
evidence” against him or “[take] on the role of the prosecutor.”

       Additionally, as the State points out, the purpose of restraining trial courts’
interrogation of witnesses is to avoid swaying the jury. See State v. Napper, No. M2019-
00623-CCA-R3-CD, 

, at *6 (Tenn. Crim. App. July 20, 2020) (quoting
Schiefelbein, 

), perm. app. denied (Tenn. Nov. 12, 2020). There was
no jury here, so there was no danger of unfair prejudice resulting from the trial court’s
interrogations. See Napper, 

, at *6.

      Because Defendant has not established that the trial court breached a clear and
unequivocal rule of law, we need not consider any other factor in the plain error analysis.
See Martin, 

 (quoting Michael Smith, 

). Though
Defendant may be dissatisfied with the trial court’s decision, he received due process.
Defendant is not entitled to relief.

                                      CONCLUSION

       For the reasons above, the judgment of the trial court is affirmed.




                                               ____________________________________
                                               TIMOTHY L. EASTER, JUDGE




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