Ex parte Larry Edward Nesbitt PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Larry Edward Nesbitt v. State of Alabama) (Montgomery Circuit Court: CC-17-162; Court of Criminal Appeals: CR-2023-0478).
SC-2023-0884
| Ala. | Oct 4, 2024Background
- Larry Edward Nesbitt was convicted of second-degree assault, sentenced to 15 years (2 years to serve, balance on probation), and released on probation in 2022.
- In 2023, Nesbitt's probation was revoked by the Montgomery Circuit Court for allegedly committing the new offense of discharging a firearm into an occupied building while on probation.
- The State's evidence at the revocation hearing included physical evidence from the crime scene and testimony from Detective Truss, who relayed statements from non-testifying witnesses identifying Nesbitt as present after the shooting, but not as the actual shooter.
- Nesbitt denied involvement in the shooting, disputed the sufficiency of the evidence, and argued that the evidence connecting him to the alleged new offense was solely hearsay.
- The Court of Criminal Appeals affirmed the revocation, finding both hearsay and nonhearsay evidence sufficient to connect Nesbitt to the offense.
- The Alabama Supreme Court granted certiorari to review whether the lower court's use of hearsay evidence conflicted with precedent set in Ex parte Dunn.
Issues
| Issue | Nesbitt's Argument | State's Argument | Held |
|---|---|---|---|
| Whether probation can be revoked based solely on hearsay evidence | Only hearsay evidence connects Nesbitt to the crime; revocation improper | Both hearsay and nonhearsay evidence (flight, lying to police) suffice | Revocation improper; hearsay alone insufficient |
| Sufficiency of nonhearsay evidence to link Nesbitt to offense | Physical evidence, flight, lying do not specifically connect him | Circumstantial (flight, false alibi) and physical evidence are enough | Nonhearsay evidence did not connect Nesbitt to alleged offense |
| Application of Ex parte Dunn to this case | Lower courts' rulings conflict with Ex parte Dunn | Circumstantial nonhearsay supports the revocation | Court agrees with Nesbitt: conflict with Ex parte Dunn |
| Admissibility/effect of consciousness-of-guilt evidence | Flight and lying insufficient without more | These can be considered as sufficient nonhearsay in context | Consciousness-of-guilt alone does not suffice without direct link |
Key Cases Cited
- Ex parte Dunn, 163 So. 3d 1003 (Ala. 2014) (probation cannot be revoked based solely on hearsay evidence; nonhearsay evidence must connect the probationer to the alleged crime)
- Wright v. State, 292 So. 3d 1136 (Ala. Crim. App. 2019) (affirming Ex parte Dunn requirement for nonhearsay link to offense in revocations)
- Miller v. State, 273 So. 3d 921 (Ala. Crim. App. 2018) (same standard on nonhearsay evidence connecting to new offense)