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Pope v. State

Alabama Court of Criminal Appeals

August 16, 2019

Raymond Lee Pope
v.
State of Alabama

          Appeal from DeKalb Circuit Court (CC-10-812.70; CC-10-813.70; CC-10-826.70)

          MCCOOL, JUDGE.

         Raymond Lee Pope appeals the circuit court's judgment revoking his community-corrections sentence and ordering him to serve his sentence in incarceration. For the reasons set forth herein, we affirm.

         Facts and Procedural History

         As best we can determine from the limited record before us, it appears that Pope pleaded guilty in April 2013 to second-degree unlawful manufacture of a controlled substance, a violation of § 13A-12-217, Ala. Code 1975; unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975; and unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975. The circuit court sentenced Pope to 20 years' imprisonment for the manufacturing conviction, 20 years' imprisonment for the possession-of-a-controlled-substance conviction, and 12 months in the county jail for the possession-of-drug-paraphernalia conviction, the sentences to be served concurrently. The circuit court ordered Pope to serve his sentences in the DeKalb County community-corrections program, and, as a condition of his participation in the community-corrections program, Pope was required to "[t]otally abstain from the consumption of alcoholic beverages and controlled substances" and to "[s]ubmit to substance abuse tests [at the court-referral office ('the CRO')] when ordered to do so." (C. 35.)

         The following procedural history is undisputed. In September 2013 and November 2014, Pope's urine sample tested positive for amphetamines, and Pope was sanctioned with jail time for each failed test. In April 2015, Pope's urine sample tested positive for alcohol, which Pope admitted to consuming, and the circuit court ordered Pope to serve 60 days in jail.

         Between July 2015 and June 2016, Pope's urine sample tested positive for amphetamines on four separate occasions. On each occasion, Pope denied using amphetamines and requested a confirmation test from Laboratory Corporation of America ("LabCorp"), and each time the test results were "sent out for confirmation" and "came back negative." (C. 8.)

         In January 2017, Pope's urine sample tested positive for amphetamines, and Pope again denied using amphetamines and requested a confirmation test from LabCorp, which "returned [positive] for Meth." (C. 9.) Although Pope's community-corrections sentence was set for revocation at that time because he had failed four urine screens, the State agreed to allow Pope to enter a substance-abuse program instead of revoking his community-corrections sentence. Pope attended the substance-abuse program and subsequently returned to the community-corrections program, but between July 2017 and February 2018, Pope's urine sample tested positive for amphetamines on three separate occasions. However, on each occasion Pope denied using amphetamines and requested a confirmation test from LabCorp, and each time the confirmation test was negative. According to Pope, "[i]n a meeting on March 9, 2018, to discuss this series of false-positive results, the 'drug court team' decided to perform a hair follicle test if [Pope] provided another positive urine sample." (Pope's brief, at 8.) (C. 10.)

         In June 2018, Pope's urine sample tested positive for amphetamines, and, once again, Pope denied using amphetamines and requested a confirmation test from LabCorp. Pursuant to the March 2018 agreement, both Pope's urine sample and a sample of Pope's hair were "sen[t] out for confirmation," and although the confirmation test of the urine sample was negative, the sample of Pope's hair "returned [positive] for Meth." (C. 10.) On July 16, 2018, the State filed a petition to revoke Pope's community-corrections sentence.

         At the revocation hearing, Michael Roebuck, a lab technician at the CRO, testified as to the procedure for conducting a urine screen at the CRO and testified that he had been "certified on our analyzers," i.e., the instruments that analyze the urine samples. (R. 20.) Although Roebuck was not questioned specifically about Pope's September 2013, November 2014, April 2015, and January 2017 failed urine screens, he testified that he had personally conducted Pope's urine screens since 2012, and he testified that Pope's urine sample had tested positive for amphetamines at the CRO in June 2018. After Roebuck testified, Suzanne Sowash, the drug-court coordinator, testified that Pope's urine sample tested positive for amphetamines at the CRO in September 2013, November 2014, January 2017, and June 2018. Sowash also testified that Pope's urine sample tested positive for alcohol at the CRO in April 2015 and that Pope admitted he had consumed alcohol on that occasion. Thus, Sowash testified, Pope's urine sample had tested positive for either amphetamines or alcohol at the CRO on five separate occasions from September 2013 through June 2018.

         The State also introduced, over Pope's objection, the result of the hair-follicle test, which indicated that Pope's hair sample tested positive for methamphetamine in June 2018. However, the State did not call a witness from LabCorp, which had performed the test on the hair sample, to testify. Rather, the State questioned Roebuck, the lab technician at the CRO, about the result of the hair-follicle test, and Roebuck merely testified that it was he who had collected the sample of Pope's hair, who had packaged the sample to send to LabCorp, and who had received the test result from LabCorp, which he then recorded and reported to Sowash.

         On October 17, 2018, the circuit court entered a judgment revoking Pope's community-corrections sentence and ordering Pope "into active incarceration." (C. 21.) In its judgment, the circuit court noted that Pope had argued "that the Court cannot revoke his Community Corrections Program sentence because to do so would amount to the Court relying solely on hearsay evidence, i.e., the hair follicle test performed by [LabCorp]." (C. 20.) However, the circuit court stated:

"As non-hearsay items of evidence, the Court considers the urine drug screens taken by [Pope] at the [CRO] on September 16, 2013, November 3, 2014, April 24, 2015, January 3, 2017, and June 27, 2018, as those were testified to by the Community Corrections Program lab technician[, i.e., Roebuck]. The Court also considers, as non-hearsay, the testimony relative to [Pope's] admission of alcohol use that resulted in his positive urine screen on April 24, 2015.
" The Court further considers the confirmation urine drug screen (from the urine sample collected on June 27, 2018) that was 'negative' and the hair follicle drug screen (from the sample collected on June 27, 2018) ...

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